US Government

There’s a Patch for That

October 1, 2017  • Michael Klein

Unrigging elections, reversing biased gerrymandering, protecting voter equality—we have a simple security system in place: constitutional amendments. All it takes: the will of the people.

In the last US presidential election, then-candidate Donald Trump described the electoral system as “rigged.” He offered several explanations, mostly allegations of voter fraud and media reporting of “alternate facts.” Whatever one thinks about those allegations, they are sadly misdirected. Nevertheless, Americans do have a rigged political system. But the rigging flows from the unique features of the US Constitution, features that cumulatively undermine America’s claim to be the world’s greatest democracy. Some of these features are very familiar, some less so.

US presidents, of course, are not democratically elected, in form or substance. The current president was “elected” notwithstanding that 2.8 million more voters cast ballots for his opponent than for him. That was because the Constitution provides that the president and vice president are elected not by the ballots cast by citizens on Election Day but weeks later by representatives of each state, through the bizarre virtual institution called the Electoral College. The Constitution provides that “Electors,” selected by the states through varying systems, are to be proportionate not to the numbers of each state’s actual or eligible voters but equal to the number of each state’s senators and congressmen. So forget “one man, one vote.”

Adding to the Electoral College distortion, the Constitution assures each state of two senators, no matter its population. The result: each voting citizen of Wyoming, with a population of less than 600,000, has over 60 times more voting power than citizens of California, with a population of over 38,000,000, for the president and their senatorial representation. This undemocratic allocation rigs the election of the executive branch and the composition—and thus deliberations—of the Senate. It is plainly at odds with the idea of America as a democracy with a purported commitment to one man, one vote.

As the US population has shifted geographically and ideologically, the state-centric peculiarity of the Constitution has deprived government of its representative quality. It enables officials representing a minority of the citizenry, with political attitudes quite different from the majority, routinely and regularly to frustrate the will of a majority on a variety of issues, as reflected in the widespread consensus conclusion of many polls that the federal government is dysfunctional.

The Constitution itself does not contain a provision that assures all adult citizens that their right to vote will not be abridged.

The anti-democracy aspects of the US political system do not stop there. Gerrymandering—manipulating the design of congressional districts to distort the representative nature of the delegation from the states—has resulted in a House of Representatives that, as some have observed, chooses its citizens rather than one in which the citizens choose their representatives. That is because the federal Constitution left it to the states—their legislatures, which are the actual gerrymandering instruments—to set congressional districts. Today, state legislatures use increasingly sophisticated computer modelling not only to gerrymander for partisan objectives but frequently to implement racial and ethnic biases.

Then there is voter suppression. You would think that the constitution of any democracy worthy of that label would have in it provisions necessary to protect, facilitate, and encourage, not to repress and discourage, its citizens’ most fundamental right—to vote. But America does not. While the First Amendment assures rights intended to make voting meaningful—prohibiting abridgment of freedom of speech and of the press—the Constitution itself does not contain a provision that assures all adult citizens that their right to vote will not be abridged. As a result, Americans have suffered from persistently partisan and often racially motivated efforts to create obstacles to voter registration and voting.

And all this ignores the recently unconstrained influence of money in politics, enabling the rich and powerful—many of whom not coincidentally are most often supporters and beneficiaries of all the previously mentioned anti-democratic peculiarities—to exert outsized influence on the entire political system.

How to correct the idiosyncrasies of the Constitution and what they enable? Return to the country’s founding documents and to the process for amending the Constitution. Americans have done this before, and for the reasons stated in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, endowed by their creator with certain unalienable rights, among them, life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That when any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles and organizing its powers in such form as shall seem to them most likely to assure their safety and happiness.

Americans have amended the Constitution at least six times over the past 150 years to democratize the electoral processes. In 1868, the 14th Amendment eliminated racial barriers to voting. In 1913, the 17th Amendment replaced legislative election of senators with direct citizen voting. In 1920, the 19th Amendment gave women the right to vote. In 1964, the 24th Amendment eliminated poll taxes. In 1961, the 23rd Amendment gave the District of Columbia representation in the Electoral College. And in 1971, the 24th Amendment changed the voting age from 21 to 18.

I’ve written in these pages about the necessity and simplicity of adding a new amendment to eliminate voter disenfranchisement: “Neither the Congress nor any State shall deprive or inhibit the right of any native born or naturalized adult Citizen to vote in any duly called election.” Here are the next two amendments American leaders should take the time to propose and pass: “The President and Vice President shall be elected by a majority vote of citizens voting in elections held every four years.”

“The boundaries of each Congressional District from which members of the House of Representatives are elected shall be drawn to employ the fewest possible perpendicular lines, shall be determined by a commission made up of an equal number of persons associated with each political party active in the State, and shall not be designed to favor or disfavor any political party, candidate, racial or ideological group.”

A third—why not?—addressing the power of Citizens United:

“Congress and the States may regulate the amount of political contributions and expenditures so long as they do not discriminate amongst any political parties, candidate, causes or ideologies.”

As Justice Ruth Bader Ginsburg recently remarked at the Aspen Institute while speaking of her own early experience fighting for gender equality, “Constitutional amendments are powerfully hard to pass in the United States.” Yet for all the difficulties the effort involves, we have been there before. We can go there again.