The President and Congress Can Protect the Right to Vote

Now that the American Rescue Plan is on the brink of becoming law, the Biden administration and Congressional Democrats are giving more attention to voting rights and the restoration of majority rule. In response, Republican politicians are producing attacks like this from Sen. Cassidy of Louisiana:

Democrats are selling out their own voters in a brazen attempt to permanently solidify their majority. States make their own voting laws, not the federal government. This power grab is shameful.

Maybe Cassidy isn’t familiar with the Constitution:

Article 1, Section 4: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Amendment XVII: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years . . . 

From CNBC:

President Joe Biden on Sunday signed an executive order aimed at helping to ensure all Americans have the right to vote by increasing access to voter registration services and information.

Biden’s executive order aims to take initial steps toward making the polls more accessible to Black and other minority voters, including Native Americans and people with disabilities.

It also calls for initiatives to improve access to voting for federal employees, active duty military and other voters overseas, and Americans in federal prison.

The executive order directs federal agencies to increase voters’ access to registration and information on elections online, as well as through more regular distribution of vote by mail and voter registration applications.

The executive order also calls for federal agencies to better coordinate with state governments on voter registration, as well as for updating the website

Biden also called for Congress to restore the Voting Rights Act, which was signed into law in 1965 following a violent protest in Selma, Alabama, that left some participants injured.

The late Rep. John Lewis, D-Ga., who was one of the activists leading the march, suffered a fractured skull. Lewis passed away last year.

Biden’s executive order coincides with the 56th anniversary of that protest, known as Bloody Sunday.

“Today, on the anniversary of Bloody Sunday, I am signing an executive order to make it easier for eligible voters to register to vote and improve access to voting,” Biden said in prepared remarks.

“Every eligible voter should be able to vote and have that vote counted. If you have the best ideas, you have nothing to hide. Let the people vote.”

Biden’s executive order is an “initial step,” according to the White House. The president plans to work with Congress to restore the Voting Rights Act, which eliminated discriminatory practices such as requiring literacy tests in order to vote.

“I also urge Congress to fully restore the Voting Rights Act, named in John Lewis’ honor,” Biden said.

In 2013, the Supreme Court invalidated a central plank of the act which required nine states with a history of discrimination, mostly in the south, to receive federal approval to change their election laws.

Biden also plans to work with lawmakers to pass the For the People Act that was passed by the House last week, which includes additional reforms to make voting “equitable and accessible.”

“This is a landmark piece of legislation that is urgently needed to protect the right to vote, the integrity of our elections, and to repair and strengthen our democracy,” Biden said.

A Power Grab or Healing a Wound?

The U.S. government established the Dakota Territory in 1861. It consisted of what’s now South Dakota and North Dakota, as well as parts of Montana and Wyoming. As the population grew, there was a campaign to make the territory a state. That happened in 1889. But there was a wrinkle. In order to give the Republican Party more representation in Congress, the territory was divided into two states.

Today, the 1.6 million residents of North and South Dakota have four senators and two representatives. If Dakota had been made a single state, it would be the fourth largest state by area and have two senators and one representative, just like Alaska, Delaware, Montana, Vermont and Wyoming.

There are 3.2 million U.S. citizens in Puerto Rico, twice as many as live in North and South Dakota, but they have zero senators and zero representatives.

Washington, DC, only has 700,000 residents, but that’s more than Vermont and Wyoming and almost as many as Alaska. Just like Puerto Rico, the Americans who live in Washington, DC, have zero senators and zero representatives. 

From The Guardian:

One of the most powerful prosecutions [at the impeachment trial] came from Stacey Plaskett of the US Virgin Islands, the first delegate from an American territory to hold the position of impeachment manager. Yet Plaskett’s status meant that she was unable to vote for impeachment because she has no vote on the floor of the House of Representatives. The US Virgin Islands has no representation at all in the Senate. Its residents cannot even vote for president.

The anomaly illuminates America’s long unaddressed colonial history that leaves five territories floating in constitutional limbo, their residents – most of them people of color – effectively treated as second-class citizens.

But with the impetus of last summer’s protests against racial injustice, and the election of a Democratic president, one of those territories – Puerto Rico – is aiming to become the 51st state of the union. A parallel effort by Washington, District of Columbia, is also closer than ever to its similar goal.

‘It is incredibly important to take a step back and look at who actually has real representation in democracy,” said Stasha Rhodes, campaign manager of 51 for 51, an organization pushing for DC statehood. “If you think about all the players that you mentioned, they all have a common thread: [most] are people of color. Does America have a true democracy if so many people of color are standing outside looking in and are not able to fully participate?”

There are five inhabited US territories: American Samoa, Guam, the Northern Mariana Islands, Puerto Rico and the US Virgin Islands. Apart from American Samoa, people born in the territories are US citizens and pay federal taxes such as Medicare and social security, though not federal tax on locally sourced income. Each territory sends a delegate to the House who can debate legislation and sit on committees but is not able to actually vote.

Puerto Rico was a Spanish colony until 1898 when it fell under US control as part of the terms that ended the Spanish-American war. In 1917 the Jones Act granted Puerto Ricans US citizenship and in 1952 it became a commonwealth of the US – but still without voting rights in American presidential elections.

Over the past half-century Puerto Rico has held six non-binding referendums on its status and last November voted 52%-47% in favor of statehood, a cause boosted by grievance over the federal government’s inadequate response to Hurricane Maria in 2017. . . . 

George Laws Garcia, executive director of the Puerto Rico Statehood Council, said: “You have a bunch of unelected individuals making decisions on behalf of the people of Puerto Rico over the desires and ideas and perspectives of the local elected officials, which I think is basically blatant colonialism.

“We had Hurricane Maria and the earthquakes and now Covid and, in all these instances when Puerto Rico needs federal resources, federal support, federal action, we don’t have the capacity to hold elected officials in Washington accountable for what they do because they don’t ever get any votes from Puerto Rico, and that includes the president as well as members of Congress”. . . .

Almost all of Puerto Rico’s residents are Hispanic while nearly half of DC’s are Black. . . . 
Its 700,000-plus residents pay more per capita in federal income taxes than any state. They gained the right to vote in presidential elections in 1961 but still lack a voting member in the House or a voice in the Senate.

The movement for DC statehood is bigger and better organized than ever before. Last June the House passed a bill that approved it, the first time a chamber of Congress had advanced a DC statehood measure. . . .

Rhodes of 51 for 51 said: “Our most celebrated civil rights leaders were fighting for access to democracy. If you think about John Lewis and Martin Luther King, they were all fighting for access to voting and access to representation and so here in 2021 we’re still fighting in Washington DC for equal representation and a clear chance at participation in democracy” . . .
[After] the insurrection at the US Capitol on 6 January. Nancy Pelosi, the House speaker, told reporters earlier this month: “If the District of Columbia could operate as a state, [what] any governor can do is to call out the national guard without getting the permission of the federal government. It shouldn’t have to happen that way”. . . .

Meagan Hatcher-Mays, director of democracy policy for the grassroots movement Indivisible, said: “It’s an issue of basic fairness”. . . . 

LaTosha Brown, co-founder of Black Voters Matter, said: “At the end of the day, you have states from Utah to Montana to others that have gained statehood early on with less question, with less critique than DC and Puerto Rico. It is a fundamental democratic flaw and it reeks of hypocrisy. The only reason why it is a debate or even a question is because of who makes up the majority of both of those places”. . . .

Donna Brazile, a former interim chair of the Democratic National Committee, said: “This is about making America a more perfect union. It’s the oldest constitutional democracy in the world and yet some of its citizens do not have all the full voting rights because of where they reside. If we’re going to end racial injustice in America and talk about a new beginning for the country, we can’t sidestep old issues.”


Of course, Congressional Republicans are opposed to statehood for Puerto Rico and DC. The Senate Minority Leader called the idea a “power grab”, simply a way to add Democrats to Congress (see “Dakota Territory, history of”). 

Except it’s not that simple at all. Our fellow Americans deserve representation in Congress. That’s the principal justification for adding two more states to the union. It’s not as clear what to do for the 376,000 Americans who live in Guam, the Northern Marianas, American Samoa and the Virgin Islands, but Puerto Rico and DC aren’t difficult cases.

Overcoming right-wing opposition (aka voter suppression) by abolishing or seriously reforming the Senate filibuster in order to give Puerto Rico and Washington, DC, full voting rights would give the voters who live there the same power as the other 330 million Americans. It would fix a longstanding problem. It would heal a constitutional wound. As a side effect, it would also add balance to the US Senate, where fifty Republicans today represent 43% of the population and fifty Democrats represent 57%.

It’s Supposed To Be One Person, One Vote

I can’t remember a less thankful Thanksgiving than last week’s. It’s hard to be grateful for ordinary well-being when the government’s executive branch is undergoing a hostile takeover. And it’s a hostile takeover by a gang of crooks, incompetents, bigots and cranks, otherwise known as the President-elect, his cabinet and his senior staff.

So it’s as good a time as any to review the rotten state of American democracy. We can even consider how we might fix it. (I say “we” because “they” live off the rot.)

British journalist Mehdi Hasan summarizes several ways in which our political system sucks:

#1:  We don’t have a national election. We have 51 separate elections. That’s how a woman who gets 65.0 million votes (and counting) can lose to a monster who gets 62.6 million. Those 51 contests result in 538 people being elected to the Electoral College. Those 538 people will select the new President on December 19.

#2: Our political campaigns take months and months and cost more per capita than in any other country. Most of the money goes to round-the-clock TV advertisements in key states (see #1). Those of who live in the rest of the country are taken for granted. 

#3: Relatively few of us vote. The last time 60% of the voting age population voted was in 1968. Most developed countries do much better.

#4: Rather than making it easier to vote, states run by Republicans are making it more difficult. The goal of this “voter suppression” is to stop as many Democrats as possible, especially African Americans, from voting. 

#5: Local politicians, not independent commissions, fix the boundaries of Congressional districts once every ten years. They put as many voters of the other party as possible in bizarrely-shaped districts while creating dependable majorities for their own party in the other districts. This process of “gerrymandering” – which the Republicans did so well in 2010 – helps explain why members of the House of Representatives hardly ever lose their jobs (97% were reelected this year). 

Mr. Hasan concludes:

Is this really what we define as democracy? Or is this, to quote the president-elect, a “rigged” system? Rigged not against Trump and the Republicans but against the poor, against ethnic minorities, against Democrats but, above all else, against basic democratic norms and principles and pretty simple notions of equality and fairness?

This isn’t a time for denial or deflection. The American political system is broken. Far from being the “world’s greatest democracy”, … representative democracy in the United States seems further hollowed out with every election cycle.

In fact, Mr. Hasan left out one of the worst failures of American politics. Some votes count more than others. We give lip service to the principle of One Person, One Vote, but the Constitution gives precedence to states with smaller populations. Small states are over-represented in the U.S. Senate, which determines who will be on the Supreme Court, and in the Electoral College, which determines who will be President.

Throw in the effects of geography and gerrymandering, and even the House of Representatives fails to meet the One Person, One Vote standard. This year, the Republicans beat the Democrats in House races by 61.5 million to 58.3 million. Ideally, that should translate into a slim 223-212 majority for the Republicans, not the 241-194 majority the Republicans will actually have. 

Not only do the residents of small states have excessive representation in the Federal government, but so do white voters. That’s because the smallest states have fewer minorities. From The Progressive:

The states with the fewest minorities (Idaho, New Hampshire, Nebraska, [etc.]) represent a total electoral college block of thirty-seven electoral votes. Based on their actual population, however, they should only be getting twenty electoral college votes…. 

Meanwhile, if we add up the ten states with the largest minority populations (California, Texas, Florida, [etc.]), we find that, based on population, they should be getting 276 electoral votes. In reality, though, they only get 240…

The problem is that not only do states vary greatly on who has access to the ballot box but, assuming you have successfully cleared the bureaucratic hurdles to get a voter ID card, waited in line for several hours, and cleared all the other voter suppression tactics and actually voted in your state, the [Federal] system itself is tilted in favor of certain states and certain voters.

So, borrowing a phrase from one or two Russian revolutionaries, what is to be done? How can we make America more democratic and, as a result, more Democratic? It sure won’t be easy. All right wing ideologies, from the 18th century on, have had a common theme. They fear that their power is at risk, so they fight like hell to maintain their position in the hierarchy. But let’s think about how we might reform the system anyway.  

A few years ago, the political scientist Norman Ornstein proposed a Voting Rights Act for the 21st century (that was soon after the Republicans on the Supreme Court gutted the Voting Rights Act for the 20th century). He recommended, among other things:

  • The Federal government would create a standardized, personalized ballot that everyone would use to vote for President and members of Congress.
  • The Social Security Administration would issue a modern photo ID to everyone with a Social Security number (which these days means every U.S. citizen). If you had one of these ID’s and were 18 or older, you would be eligible to vote.
  • The government would allow weekend voting at any local polling place, with early voting the week before [why not have polling stations in every U.S. post office, for example?].

Mr. Ornstein didn’t mention the problem of making sure votes are properly counted, but that would be an obvious improvement too. For example, David Dill, a professor of computer science, founded the Verified Voting Foundation. He explains here how easy it would be to interfere with one of our elections. Professor Dill proposes, therefore, that: 

We need to audit computers by manually examining randomly selected paper ballots and comparing the results to machine results. Audits require a voter-verified paper ballot, which the voter inspects to confirm that his or her selections have been correctly and indelibly recorded… Auditing methods have recently been devised that are much more efficient than those used in any state. It is important that audits be performed on every contest in every election, so that citizens do not have to request manual recounts to feel confident about election results. With high-quality audits, it is very unlikely that election fraud will go undetected whether perpetrated by another country or a political party.

There is no reason we can’t implement these measures before the 2020 elections. As a nation, we need to recognize the urgency of the task, to overcome the political and organizational obstacles that have impeded progress.

Finally, there are three other reforms that hardly need mentioning.

The Electoral College was meant to protect small states and slave-owning states back in the 18th century. It still has one valid purpose: the members of the Electoral College can stop a truly unqualified or dangerous person from becoming President. (Small states get more than enough protection from the U.S. Senate and the Supreme Court.) If, however, the Electoral College allows T—p to become President, there is no reason to think it will ever fulfill its remaining purpose. That means we need to either amend the Constitution to get rid of the Electoral College or make the damn thing superfluous (the latter option is the goal of the National Popular Vote Interstate Compact, which I wrote about earlier this month).

A second obvious reform is to institute a less partisan way of designing Congressional districts, that is, to limit the effect of gerrymandering. Yesterday, three Federal judges ordered North Carolina to redraw its legislative districts and hold a special, more representative election next year. Non-partisan commissions can do a better job at drawing district lines than politicians and their cronies. So can software, as described here, for example.

Of course, the last obvious change we need to make is campaign finance reform. Rich people and corporations should not exert exorbitant influence in a democracy. As the saying goes, it’s supposed to be One Person, One Vote, not One Dollar, One Vote.  Now all we have to do is convince, replace, out-vote or out-maneuver the right-wing reactionaries who stand in our way. 

Justice Anthony Kennedy, Champion of Equal Rights?

On PBS’s Religious & Ethics NewsWeekly program this morning, a correspondent referred to Supreme Court Justice Anthony Kennedy as a “champion of equal rights” for gay people. He called Justice Kennedy a “champion” because Kennedy has voted with the majority more than once for gay rights, most recently this week when the Supreme Court declared the so-called “Defense of Marriage Act” to be unconstitutional on a 5-4 vote.

Although Kennedy taking a liberal position on this issue is an excellent thing, it’s an exaggeration to refer to him as a “champion of equal rights”. After all, the only reason Kennedy stands out among the 5 justices who declared the law unconstitutional is that he tends to vote against equal rights (and common sense) in so many other cases. The other 4 justices are reliable votes for equal rights, so their votes aren’t newsworthy.

This week, for example, Kennedy joined his benighted right-wing brethren in throwing out the part of the Voting Rights Act that required certain states to get Justice Department approval before tinkering with their electoral laws. The immediate result of this Supreme Court decision is that some of those states (ones whose leaders committed treason in order to defend slavery) have already announced plans to make voting more difficult.

Everyone knows that the purpose of these restrictive voting laws so popular in certain states is to suppress turnout among blacks, Hispanics and the poor (who tend to vote Democratic), not to eliminate voter fraud (which has never been shown to exist to any mathematically significant degree at all).

So in a couple of cases this week, Justice Kennedy voted for equal rights. In a case that was at least equally important, he voted to make it more difficult for people to exercise their right as an American citizen to vote — not their right to vote as the holder of one or more specific forms of identification. People all over the world vote by showing up at the polls and getting their hands stamped. They don’t have to “prove” that they live where they live.

For your consideration: Supreme Court Justice Anthony Kennedy, champion of equal rights in a very limited sense.