When at Times the Mob Is Swayed

by Burt Neuborne

  Finally, the simple, long-overdue act of admitting the District of Columbia and the Commonwealth of Puerto Rico to statehood would provide enhanced Senate representation to populations of color, mitigating (though not eliminating) the current radical over-representation of white voters in the Senate.

  The second unfixable problem is, as we’ve seen, the malapportioned Electoral College, where smaller rural states have the power to swing the presidential election to the loser of the popular vote. Unlike the malapportioned Senate, the Electoral College can be fixed by a constitutional amendment. In fact, it can be fixed without one, by the simple expedient of a promise, in the form of an interstate compact among states casting a total of 270 electoral votes or more, to cast their electoral votes for the winner of the national popular vote. As with my nonconstitutional fix for the Senate, though, it won’t happen. Not enough states would join the compact. I don’t see reform of the Senate or the Electoral College succeeding any time soon.

  But there is still plenty that can be achieved, even within the confines of the currently stacked system.

  WHY DON’T MORE PEOPLE VOTE?

  Whether or not the Senate or the Electoral College can be fixed, we start any effort at democratic reform with an unpleasant fact: in most elections in the United States, considerably more than half the eligible voters do not cast a ballot. If you view the act of voting as a referendum on democracy, when you compare the “yes” votes of folks who express confidence in democracy by choosing to cast a ballot with the “no” votes of folks who vote with their feet, American democracy hardly ever wins.

  In presidential years, a great turnout barely hits the 60 percent mark. Since the advent of voter registration in the early 1900s, presidential turnout has never exceeded the low sixties. Most of the time it’s been considerably lower, often falling below 50 percent.

  In 2016, as I’ve noted, Donald Trump was elected president by 46 percent of the 55 percent of eligible folks who bothered to vote—a “mandate” of 25 percent of the total number of eligible voters. Bill Clinton’s “mandate” was even lower. He was elected in 1992 with 44 percent of the 48 percent of the eligible population who bothered to vote—or an anemic 22 percent.

  Turnout in congressional elections, especially off-year elections when the president is not on the ballot, is much lower, routinely dropping well below 50 percent and often hovering in the 30s or lower. We celebrated the increased turnout for the 2018 midterms, but only 48 percent of the eligible population actually voted. Only 34 percent of the eligible electorate voted in the crucial 2014 congressional elections when the Democrats lost the Senate, a loss that, two years later, would cost them control of the Supreme Court.

  In many state and local legislative elections, the turnout is even lower, occasionally dipping into the twenties and teens, especially if political bosses have gerrymandered the election’s outcome by rigging the district lines to make it almost impossible for their favored candidate to lose. Governors routinely are elected in statewide contests where fewer than 40 percent of the voters turn out, allowing under 20 percent of the voters to claim the power of “majority rule.”

  Participation in most party primaries is scandalously low, sometimes falling below 10 percent of the eligible voters, enabling the extreme 5 percent wings of each major party to dominate a nominating process that is tantamount to election in many gerrymandered districts, or in districts where only one party has a real chance to win.

  When you remember that the internal brakes on the Founders’ democracy train rely on multiple competing interest groups with relatively equal electoral power checking each other, you see that large-scale failure to vote pours acid on the Founders’ brakes. If some folks routinely don’t vote, important interest groups are left out of the electoral mix. If enough people don’t vote, one relatively small interest group is able to capture the government and use it to impose its will on everyone else, with no internal correction possible. Thus, large-scale nonvoting not only harms the nonvoters but also strikes at the core of the Founders’ blueprint for American democracy.

  Electoral turnout in today’s United States compares very badly with turnout in other countries—Australia, where voting is mandatory, routinely hits 95 percent. Our nineteenth-century presidential elections averaged 75 percent participation, only to plunge after the introduction of voter registration at the beginning of the twentieth century, falling to 44 percent in 1924 before slowly rising to the current 55–60 percent plateau.

  The disturbing truth is that such large-scale, serial nonvoting endangers democracy itself. Like health insurance, democracy works best when everyone joins the pool; it works badly, if at all, when too many decide to drop out. When, as in many federal and most state and local elections, more than half the eligible population doesn’t vote, the outcome of an election can be controlled by less than 25 percent of the eligible electorate. When, as in many off-year House elections and too many state and local elections, turnout is less than 30 percent, the winner can be chosen by 15 percent of the population. Take the turnout number down to 10 percent in a typical primary, and 5 percent of the voters choose the winner. When the primary is in a one-party area where the general election is a foregone conclusion, the winner of the general election is chosen by 5 percent of the people. When you increase the turnout to 60 percent in a presidential election, it still takes only a shade over 30 percent of the eligible voting population to win, and less if you factor in the undemocratic nature of the Electoral College, which allows someone to become president with a smaller share of the popular vote than her opponent.

  A democracy routinely built on an electoral “mandate” that rarely exceeds 25 to 30 percent of the eligible voters, and often plunges to between 5 and 15 percent in legislative elections, simply will not work well. Special interests can too easily capture or dominate the shrunken electorate. Small, transient ideological movements can much more easily entrench themselves through unfair manipulation of the voting rules. The complex discussions and trade-offs needed to craft wise, enduring legislation become more difficult, perhaps impossible, when only a handful of the stakeholders are in the room. Most important, the representative mandate that underlies democracy’s moral legitimacy is threatened when elected officials “speak” for between 5 and 25 percent of the electorate.

  It would be bad enough if a random 50 percent of the country—or even 75 percent of the country—just didn’t pay attention to democracy. At least the 25 to 50 percent of people who were paying attention could be counted on statistically to reflect the needs and concerns of their nonparticipating neighbors. But failing to vote isn’t random. Nonvoters are disproportionately young, poor, and people of color, clustered at the low end of the educational and economic scale.

  The sad truth is that the American voting electorate today looks disturbingly like the eligible electorate of a bygone era, when formal impediments to voting skewed the electorate toward the better-educated, wealthier slice of the population. Now that we’ve finally eliminated most of the historic formal barriers to voting, why on earth don’t more people go to the polls?

  The standard progressive response is to blame the government for cynically erecting hurdles designed to disenfranchise the weak and the poor. The standard right-wing response is to condemn serial nonvoters as not interested or committed enough to take the trouble to vote. Both sides have a point. Given the stakes for democracy, I confess that I find myself annoyed at people who routinely don’t bother to vote, especially the nonvoters who saddled us with the Trump presidency. Frankly, if I could figure out who those slackers were, I’d make them wear dunce caps and Trump masks. I know it sounds corny, but too many men and women have died on battlefields defending American democracy, or have been killed by lynch mobs, or have suffered through hunger strikes and endured prison terms and beatings for seeking the right to vote, for the modern beneficiaries of their sacrifices to simply walk away from the legacy—and responsibility—of self-government.

&
nbsp; We don’t let would-be free riders walk away from their duty to pay taxes, serve on juries, go to school, register for the draft, get vaccinations, buy health insurance, and wear motorcycle helmets. Why do we shrug and let at least half the population walk away—or be pushed away—from its right—and its duty—to vote?

  It does not have to be this way. But any serious effort to boost electoral participation cannot concentrate solely on lowering the costs of voting without worrying about the vote’s real and perceived value. Focusing solely on the important task of removing or minimizing barriers to voting without also worrying about why so many disaffected nonvoters are unwilling or unable to step over very low thresholds to cast a ballot may lead to formal changes in the voting rules but will not, I fear, trigger significant additional voting. On the other hand, making voting more attractive without also worrying about removing barriers erected to disenfranchise the poor will intensify alienation and further erode democracy’s moral legitimacy.

  Fortunately, an attainable reform agenda exists that could give American democracy a badly needed shot of adrenaline. And you don’t need lawyers or judges to implement much of the plan. An easy place to start would be to shift Election Day from the traditional first Tuesday in November to Veterans Day, already a national holiday that is celebrated a few days later on November 11. What better way to honor those who have suffered to preserve democracy than by turning Election Day into a practical celebration of their sacrifice? Since nothing in the Constitution forces us to vote on any particular day, Congress could change the date for national elections tomorrow. State and local officials don’t even have to wait for Congress: state legislatures even have the constitutional power to set “the time, place, or manner” of federal elections unless Congress objects.

  Moving Election Day to an already existing holiday such as Veterans Day would make it much easier for working people and folks with child care responsibilities to vote without imposing any new costs on employers. I estimate that shifting Election Day to Veterans Day would immediately boost turnout by as much as 10 percent, especially if we added significant ceremonies celebrating our veterans’ battlefield defense of democracy, honoring the mostly black victims of domestic terrorism who died trying to vote, and the heroic American women who endured violence, hunger strikes, and jail in their century-long struggle for suffrage.

  Trump wants to celebrate Veterans Day with a childish military parade costing more than $20 million. The grown-up way to celebrate Veterans Day would be to turn it into a full-scale, working celebration of democracy.

  While moving Election Day to Veterans Day would almost certainly boost turnout without costing a dime, it would, I fear, not cure the problem of large-scale, serial nonvoting. Once upon a time, large-scale nonvoting could be explained by a patchwork of laws and practices designed to disenfranchise voters of color, women, newcomers, the uneducated, and the poor. Once upon a time, a combination of racial and gender bars, poll taxes, literacy tests, property qualifications, durational residence requirements, and physical intimidation delivered a white, male, prosperous electorate. But not anymore. Although a new generation of cynical, thinly disguised disenfranchisement techniques—including requiring voter IDs and purging the voting rolls—has evolved in several Republican-dominated states, and while voter registration and the act of voting itself often remain unnecessarily inconvenient, there really is no legal or practical excuse today for the widespread failure to vote. A half-century of sustained Supreme Court precedent has swept away almost all the historic legal barriers to voting, leaving three pieces of unfinished business in the movement for universal suffrage—the continuing political powerlessness of children and the mentally ill, felon disenfranchisement in a few key states, and the anomalous electoral status of permanent resident aliens.

  Children first. In allocating political power, we’ve assumed that children under eighteen, who make up about 25 percent of the population but lack the right to vote, would be virtually (and fairly) represented by their parents and by the community’s assumed interest in protecting its young. Sadly, that’s just not the way it has worked in practice. The young are perennially shortchanged in the American democratic process, precisely because they can’t vote. Billie Holiday was right: “Mama may have, and Papa may have, but God bless the child who’s got his own.” I’d love to have had a chance to talk Madison into creating a political power base for children. Perhaps then we’d treat children’s health and education issues as seriously as we treat social security, 401(k)s, and estate taxes.

  I don’t argue for enfranchising twelve-year-olds, but perhaps we should think about artificially increasing the political power of children by designating specially elected individuals pledged to view them as their constituency—a legislative analogy to the use of special guardians in court.

  Ending felon disenfranchisement is the next piece of unfinished democratic business. For too many years, felon disenfranchisement has functioned as a covert way to deny the vote disproportionately to millions of black males caught up in the racially discriminatory criminal justice systems of many states. The practice was imposed as a way to keep formerly enslaved persons from voting. In Florida, for example, felon disenfranchisement was added by racists to the 1868 state constitution to subvert the effort to enfranchise black men. Over the years, the practice operated to assure that 25 percent of otherwise eligible black males were locked out of the democratic process because of brushes with Florida’s notoriously racist criminal justice system. Virginia and Kentucky weren’t much better. The Supreme Court actually invalidated the practice in Mississippi because it was so clearly racially motivated, but refused to knock it out everywhere.

  Thankfully, with no help from the Supreme Court, denying the vote to folks with criminal convictions looks like it’s on the way out. Kentucky is the last major holdout. Virginia’s Democratic governor ended the practice in 2017. Sixty-four percent of Florida voters overwhelmingly rejected it in 2018. But the struggle is not over. Too many states impose a backdoor disenfranchisement on convicted criminals by denying them the ballot until they pay court costs that can routinely exceed $10,000. A number of states require a complex bureaucratic process before restoring the vote on an individualized basis. Many states deny the vote while on probation or parole. Only Maine and New Hampshire allow voting while incarcerated. And, even when the right to vote is restored, how will folks be put back on the voting rolls? Until now, legal challenges to the racially discriminatory aspects of felon disenfranchisement have failed, whether brought under the Fourteenth Amendment or the Voting Rights Act of 1965. As we’ll see, the First Amendment may provide an alternative path to reform, even before the current Republican Supreme Court. It’s more likely, though, that ending felon disenfranchisement may turn out to be an important example of how democracy can be repaired by the people with no help from the courts.

  Finally, to what extent, if any, should noncitizens, especially permanent resident aliens, play a role in American democracy? Some communities invite permanent resident aliens to vote in local elections of particular importance to them, such as school board contests. But the numbers are small. The European Union provides an interesting model for local participation by resident aliens by permitting all citizens of member countries to vote in many local elections.

  Even if they can’t vote, should resident aliens be excluded from participating in the electoral process? While resident aliens almost certainly have a right to express themselves in the debate, the Supreme Court has upheld a ban on small campaign contributions in connection with federal elections by aliens residing here on long-term visas.

  Should aliens—both documented and undocumented—residing in a community be counted for the purposes of allocating political representation? We have always allocated political representation on the basis of residency, not citizenship. Beware, though. The Trump administration is seeking to add questions about citizenship to the 2020 census, indicating that Republican politicians in states
such as Texas, Florida, and Virginia plan to push for excluding aliens from the apportionment process. With so much discrimination against urban America already built into our electoral system, removing political representation for the millions of noncitizens residing in the nation’s great cities would doom urban America to the status of permanent colonies governed by rural states.

  What role, if any, may or should foreigners living abroad, or foreign governments themselves, play in our electoral process? Under a 1965 Supreme Court precedent, Lamont v. Postmaster General, Americans enjoy a First Amendment right to hear political or electoral speech from abroad, even when it is sponsored by a foreign government. But, under a 1987 Supreme Court precedent, Meese v. Keene, Americans also have a First Amendment right to know the origin and source of political or electoral speech from abroad.

  During the 2016 presidential elections, Russians intelligence agents appear to have engaged in a massive covert effort to support the candidacy of Donald Trump, mounting an extensive social media campaign replete with troll farms and phony posts designed to inflame Trump’s base and discourage potential supporters of Hillary Clinton from turning out to vote. The Russians lied about their identities, making the legal issue easy. It’s clearly a felony for a foreign speaker—whether an individual or a government agent—to deceive his American audience about the true source of electoral speech. The only real legal question is whether the Trump campaign, including the president, knew of, and/or cooperated with, the Russian disinformation operation. That’s what the Mueller investigation is all about. We’ll look more closely in chapter 7 at President Trump’s possible criminal vulnerability for playing footsie with the Russians during the 2016 presidential campaign and then, once he had been elected, obstructing the grand jury’s investigation.