I’ve been writing about gerrymandering and election law since I was in law school, long enough to feel very discouraged. When Anthony Kennedy didn’t take advantage of his last crack at gerrymandering while still on the U.S. Supreme Court, after having teased us for years about his willingness to deal with it, I was sad to the core of my being. Ezra Klein’s “Polarization and the Parties” which came out a week ago in the Sunday Times galvanized my thinking, if not my hopes.
Klein made it clear that the combination of gerrymandering, the allocation of Senate seats and the electoral college would soon leave 70% of America represented by 30% of senators and vice versa, and the electoral college will continue to “elect” presidents who have lost the popular vote. With the Supreme Court continuing to be shaped by those disproportionate advantages in the Senate and the executive, Republicans will continue to be able to stave off a more equitable representation in the House of Representatives. In other words, democracy will be a memory replaced by institutionalized minority rule.
Can we do anything about it? Klein points out that with their power resting firmly on these legal impediments, the Republicans will continue to fight fiercely against anything resembling democracy. Flipping control of the White House and Congress would certainly make a difference but would not change the electoral college, the Senate’s skew toward the least populous states or its grip on Supreme Court appointments.
There’s much talk about amending the Constitution, but that requires three-fourths of the states with the same unrepresentative dynamics to approve. So fat chance fixing the Constitution, whether by amendment or a convention as spelled out in Article V of the Constitution.
Then what? Our Constitution was adopted “illegally” by the terms of the Articles of Confederation. Could we do the same, create a new Constitution and specify, as the Founders did, how it should be ratified. That’s been tried on the state level but met an unreceptive Supreme Court. Could we expect better from this Court? And who’d count the votes? The existing and affected states or some nonpartisan entity? By what method or machine? And who’d pay? Perhaps we should hire five thirty-eight.com to gather private polls. But we’d be mired in questions of polling methods and ethics.
Maybe we should have let the Confederacy go? Chucking Texas alone would make a big difference – although Texas is changing. Or maybe the coasts should secede. Those alternatives would leave us a smaller, weaker, country, subject to alliances with foreign powers against each other – the biggest fear and reason for action of the people who wrote and ratified our Constitution. Would such a split be like the former Czechoslovakia or the former Yugoslavia, which is to say a peaceful split or a bloodbath? Trump’s “base,” by the way, has been arming itself for that bloodbath for years.
Or maybe some of the 70% of us need to resettle with the 30% and change the country from the bottom up. But on that too, as we’d have said in Brooklyn, fat chance. I think that means that the more we care about the results, the more radical our views, the more we have to roll up our sleeves and work together that much harder on the elections, no matter which candidate becomes our standard bearer.
— This commentary was broadcast on WAMC Northeast Report, February 4, 2020.