Democracy: Back on the Agenda

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Democratic leaders introduce H.R. 1, the For the People Act, January 4, 2019
Democratic leaders introduce H.R. 1, the For the People Act, January 4, 2019

Fixing American democracy is suddenly back on the agenda in Congress, in the states, and among the voters – despite the conventional wisdom that the public is bored by procedural reform. The interest in making democracy work better is greater than it has ever been in the United States since the struggle that led to the adoption of the Voting Rights Act in 1965, and arguably since the Progressive Era of a century ago.

Exhibit number one is House Resolution 1, the intentionally first piece of legislation introduced in January 2019 by the new Democratic majority in the U.S. House. This bill includes a series of sweeping reforms: automatic and same-day registration, voting rights for ex-felons, fail-safe requirement for voter ID, independent redistricting commissions, Election Day holiday, measures to prevent hacking of elections, disclosure requirements for political donations and online advertising, an overhaul of campaign finance rules, reform of the Federal Elections Commission, and much else in its 570 pages. Since the majority of voters who elected the House majority do not rule, this legislation has no chance of being enacted by the current Congress.

Reform in the States

But reforms are already being adopted in the states. In the 2018 elections, Michigan voters approved, by a two-thirds majority, a constitutional amendment to create automatic voter registration, election-day voter registration and redistricting reform. These reforms were adopted elsewhere in 2018:

Florida voters adopted, with 65% of the voters in favor, a constitutional amendment to restore voting rights to an estimated 1.4 million ex-felons.

Maine’s successful use of Ranked Choice Voting in 2018 represented the first use of this more democratic voting system for Federal elections, despite Republican-led efforts to prevent implementation of the referendum approved by voters in 2016. The system readily survived a legal challenge from the defeated incumbent in the Second Congressional District who had placed first in first-preferences but lost after vote transfers. RCV is now firmly on the reform agenda and has been the subject of increased attention and endorsements, use in cities, and legislation introduced in the states.

In January 2019, following the restoration of unified Democratic control, New York State enacted a package of voting reforms including early voting, young voter pre-registration, and the elimination of a re-registration requirement for voters moving within state. The legislation will also will end New York’s unique practice of holding separate state and Federal primary elections. At the same time, the legislature began the process of amending the state constitution to allow no-excuse absentee voting and same-day registration.In signing the current package, Governor Cuomo also expressed his support of automatic voter registration and an Election Day holiday. (Reform advocates are hoping the state will also adopt automatic restoration of voting rights for ex-felons and elimination of the one-year waiting period to change parties prior to a primary election).

The Need for Federal Action

Broad packages of voting reforms have been introduced in another 16 states. However, some states continue to adopt voting restrictions, such as limitations on early voting and tighter identification requirements. This patchwork of reform and reaction is one reason why new national rules, such as those in H.R. 1, are badly needed. Although Congress has only limited power to dictate voting rules for state elections, it will be politically difficult for states to deny the vote in state contests to voters entitled to vote for Federal offices. For example, the 1970 Amendments to the Voting Rights Act lowered the voting age to 18 in all elections. After the Supreme Court ruled that Congress had the power to set the voting age for Federal elections only, the 26th Amendment to the U.S. Constitution was rapidly adopted to lower the age for state elections as well.

Stacey Abrams made voting rights a central theme of her campaign for Governor of Georgia in 2018, and came close to defeating her Republican opponent who, as the sitting Secretary of State, had implemented various measures impeding voting. In February 2019, she gave the Democratic response to the State of the Union speech, where she said that voting rights at home represent “the next battle for our democracy” which she linked to America’s historic pro-democracy stance abroad: “The foundation of our moral leadership around the globe is free and fair elections, where voters pick their leaders, not where politicians pick their voters.”

Historic Voter Turnout

The 2018 U.S. elections were historic: voter turnout was the highest in more than a century for a non-presidential year, driven in large part by opinion of President Trump (both for and against). This dramatic increase in participation, a complete reversal of 2014 when participation was at its lowest level since 1940, is in itself a victory for democracy.

It was also a victory of democracy in that it was a repudiation of Trump and his Republican allies, given that the Republicans have embraced a strategy dependent on minority rule and voter suppression. In U.S. House races, Democratic candidates won 60.7 million votes, nearly 10 million more than the Republican’s 50.9 million. The result happened to be roughly proportional: Democrats won 54% of the seats with 53% of the vote. Republicans won 46% of the seats with 45% of the vote (2% of the vote went to others, who won no seats). The massive Democratic wave was not enough to undo the Republican majority in the Senate, which is insulated from majority rule both because two-thirds of Senators’ terms of office were not yet expired and because seats are not allocated in proportion to population.

Despite the historic turnout and historic plurality for Democrats, the choice of the majority in the 2018 elections will have essentially no opportunity for making laws in the 116th Congress. Legislation passed by Democrats in the House is almost certain not to survive the veto (real or effective) of the minority President, the minority Senate, and/or the unelected Supreme Court, five of whose members (a majority) are “minority Justices:” either nominated by Presidents who did not win the most votes, or ratified by Senators representing a minority of voters, or both in the case of Trump’s appointees.

Will Democrats, and Democracy, Prevail in 2020?

No one expects the democratic reforms of H.R. 1 to be enacted while Republicans control the Senate and the Presidency.  Senate Leader Mitch McConnell has already denounced the bill as “a naked attempt to change the rules of American politics to benefit one party,” “the Democrat Politician Protection Act,” and a “power grab.” Greater voter participation is likely to benefit Democrats, so it is not surprising that Republicans are against it.

Although the majority that turned out in 2018 in historic numbers will be thwarted for the next two years, will they be able to rule as of January 21, 2021?

President Trump’s popularity, already very low, will only decrease in the next two years. He is extremely unlikely to adopt popular legislation or policies. The numerous investigations into his campaign, transition, inauguration, and Presidency are likely to reveal additional unflattering evidence of corruption and unsavory relationships with Russia and Saudi Arabia.

Will Trump’s unpopularity translate into enough votes for Democrats? Even though turnout was historically high in 2018, still nearly half the eligible electorate abstained. If voter participation increased from 37% to 50% in a midterm year, can it increase from 60% to 70% in a presidential year? If so, it would be the highest seen in the U.S. since 1900. Given that non-voters lean Democratic, would this be enough to insure Democratic control of the federal government?

It seems certain that the Democrats will continue to hold a large majority in the U.S. House after the 2020 elections. A Democratic President would also seem to be a slam-dunk, given the number of voters who disapprove of Trump. However, the 2018 presidential election is dependent on the vagaries of a non-system of polls, fund-raising, debates, primaries, caucuses, and conventions that could result in a Democratic nominee who is not the strongest candidate to face Trump. (State and federal laws that discriminate against new parties make it essentially impossible that a serious contender will emerge who does not win the nomination of one of the two official parties.)

The greatest barrier to majority rule will be the Senate. A Democratic majority is currently seen as “an uphill climb.” Although 22 of the 34 seats up for re-election are currently held by Republicans, almost all are in states that have a strong plurality of Republican voters. To reach a majority, Democrats will need to defeat the two Republican incumbents who represent democratic-leaning states (Sen. Collins of Maine and Sen. Gardner of Colorado), hold on to Sen. Jones’s seat in strongly Republican Alabama, and win at least one more seat in states that lean Republican by 5 percentage points or more. Given the incumbent advantage,  FiveThirtyEight estimates that the Democrats will need a 12 percentage point national plurality to accomplish this — compared to their plurality of 9.6 percentage points in 2018, one of the largest ever.
If Democrats manage to overcome this anti-majoritarian hurdle and end up with the Presidency, and House and Senate majorities, they will need to act quickly to secure majority rule. In the short term, they will need to eliminate the filibuster in the Senate to have the ability to pass legislation. They will also need to pass something like H.R. 1 to promote voter participation and prevent voter suppression. They will need to restructure the Supreme Court to insure that the minority justices do not overturn the will of the majority. Given the impossibility of fixing the Senate via constitution amendment, the Democrats should return to the old-fashioned way of getting control: making more states (starting with the District of Columbia and Puerto Rico). And we will need to discuss ways to make the the president election shorter and fairer. All of these reforms will likely be denounced as power grabs and worse, but they are necessary to bring America, kicking and screaming, into the family of fully functioning democracies.

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