Tag Archives: majority rule

Winner Take All

In Indianapolis, early voting for the upcoming municipal elections just commenced, and my husband and I dutifully cast our ballots in advance of election day.

After all, we could be hit by a bus or otherwise “snuffed out” between now and the actual date of the election. This way, we’re sure our votes for Mayor and City-County Council will count.

Unlike our votes for President.

Each time we participate in the democratic process, I am reminded of all the ways in which that process has become less democratic. Voter suppression, voter I.D. laws, polls closing at 6:00 pm–there are numerous ways that the Republican super-majority in our state has made casting a vote onerous for everyone, but especially for the minority and working-class folks who tend to vote Democratic.

Indiana isn’t alone. There are so many ways that the party that controls a statehouse can erase the votes of citizens in the opposing party–at least, in Presidential contests. The most pernicious–and probably least understood–is “winner take all.”

A recent op-ed from the New York Times explains.

The column began with a discussion of the Electoral College, and the changes in the way it works–especially the manner in which we choose Electors– since it was first conceived by Alexander Hamilton. But as the author noted, today’s Electors aren’t the problem.

What really disregards the will of the people is the winner-take-all rule currently used by every state but Maine and Nebraska. Giving all electors to the winner of the statewide popular vote erases the votes of citizens in the political minority — say, the 4.5 million people who voted for Donald Trump in California, or the 3.9 million who voted for Hillary Clinton in Texas. Nationwide, this was the fate of 55 million people in 2016, or 42 percent of the country’s electorate.

The winner-take-all rule encourages campaigns to focus on closely divided battleground states, where a swing of even a few hundred votes can move a huge bloc of electors — creating presidents out of popular-vote losers, like George W. Bush and Donald Trump. This violates the central democratic (or, if you prefer, republican) premises of political equality and majority rule.

What most people don’t realize is that the winner-take-all rule exists nowhere in the Constitution. It’s a pure creation of the states. They can award their electors by congressional district, as Maine and Nebraska do, or in proportion to the state’s popular vote, as several states have considered.

Or, of course, states could award their electoral votes to whoever wins the national popular vote, which would be the result of enough states signing on to the National Vote Compact.

If the Compact cannot reach its target of signatory states having a total of 270 Electoral Votes, my own preference would be a proportionate allocation. If 60% of the votes are cast for candidate A, candidate A gets 60% of the state’s electoral votes–not 100%. People in the political minority in a state would suddenly have an incentive to vote–an incentive that doesn’t exist now. A presidential vote by a Democrat in Indiana or a Republican in California simply doesn’t count.

Allocating votes by Congressional District risks replicating the major flaw of today’s Electoral College–awarding disproportionate weight to less-populated rural areas. (Thanks to population shifts since the Constitution was ratified, today’s Electoral College effectively makes every rural vote worth one and a third of every urban vote.)

The problem is, to work properly, all states would have to make the change to proportional allocation–and that won’t happen. So we’re stuck.

Until we figure a way to get rid of the Electoral College, we will continue to have Presidents elected by–and answerable to–a minority of the voters. I don’t know what you call that, but it isn’t democracy.

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Are We Americans?

I recently participated in a session of “Cocktail Judaism”—an activity sponsored by Indianapolis congregation Beth El Zedeck for members interested in exploring current issues in the context of Jewish values. The environment is informal; congregants meet at a local restaurant on a weekday evening, and various “experts” are invited to lead the discussion.

On this particular evening, I shared the microphone with my more knowledgeable cousin, Jeff Smulyan, CEO of Emmis Communication. We were asked to facilitate a discussion revolving around a question posed by Rabbi Dennis Sasso: What does it mean to be an American, and how will the answer to that question matter to the 2020 election?

I argued that–at the very least—being American requires understanding, supporting and protecting two essential elements of our country’s version of liberal democracy–majority rule and its libertarian brake, aka the Bill of Rights.

In order to protect the legitimacy of U.S. government, we need to address the escalating assaults on majority rule: Gerrymandering (the practice whereby legislators choose their voters, rather than the other way around); the growth of vote suppression tactics (everything from voter ID laws to the spread of disinformation); the disproportionate influence of rural voters thanks to the operation of the Electoral College; the current (mis)use of the filibuster, which now requires a Senate supermajority to pass anything; and the enormous influence of money in politics, especially in the wake of Citizens United.

In order to protect individual liberty– i.e., the constraints on majority rule required by the Bill of Rights and the 14th Amendment–we need to reinvigorate and protect the libertarian principle that animated the nation’s Founders: the right of all people to live as they see fit, so long as they do not thereby harm the person or property of others, and so long as they are willing to grant an equal liberty to others. That “live and let live” principle doesn’t just  require us to limit government over-reach; it requires that we combat racism, anti-Semitism, homophobia, misogyny, Islamophobia…all of the “isms” that deprive some citizens of equal civic status and that deny them the full expression of their individual liberties.

Understanding and protecting both majority rule and individual rights requires an informed citizenry–and an all-out assault on civic ignorance and apathy.

In response to a question from Jeff, participants indicated their concerns about a wide range of issues: gun control, the environment, health care, reproductive rights, the Supreme Court…an important litany with which we’re all familiar. These are all, admittedly, absolutely critical issues.

That said, I’ve become increasingly convinced that 2020 is about America’s structural and systemic distortions—that our first order of business must be to confront the misuses of power that make fair and productive political debate about substantive issues impossible. These failures of American governance need to be addressed before any of the policymakers we elect will be able to discuss, let alone pass, rational, evidence-based policies.

You can’t drive a car if it’s lost its wheels, and you can’t govern if your institutions have lost their legitimacy.

Unless the systems are fair, no minority of any sort–political, religious, racial, economic–is safe.

America’s Constitution was all about checks and balances and the rule of law. Until we eliminate systemic corruption and return our government to those foundational operating  principles, we aren’t Americans—we’re just an assortment of contending constituencies who happen to occupy the same nation-state.

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I Do Not Think That Word Means What You Think It Means

Ah, democracy!

Like so many words echoing through today’s content-free political tantrums, “democracy” gets thrown around by folks who don’t seem to understand how it is supposed to work. (“Liberty” is similarly misused; in the recent RFRA debate, defenders of the law used it to mean retailers’ right to discriminate against customers whose identities or behaviors offended their religious beliefs.)

My observation about the misuse of “democracy” is prompted by a recent blog–diatribe, actually–posted by an Indianapolis school board member named Gail Cosby. (Full disclosure here: I wouldn’t have seen the post, nor would I be following the school board’s “inside baseball” disagreements if our daughter and a former graduate student of mine weren’t both members of that body. So while I am a constituent of Cosby’s, I come with a somewhat amplified point of view.)

In the wake of the most recent school board elections, Cosby has found herself in the minority (alone, actually) on several issues, and has taken to accusing those with whom she disagrees of bad faith, hostility and “undemocratic” behavior. She is absolutely entitled to her opinions, whatever one may think of the propriety or accuracy of these accusatory posts, but like too many other Americans, she quite clearly does not understand the democratic process.

And that leads me to my larger point.

When voters elect a legislative body–the General Assembly, the City-County Council, the School Board–the majority rules. Losing a vote, failing to have your opinion carry the day, or failing to have all your demands met is not evidence of anti-democratic behavior, or “failure to collaborate.” It is the way the system works. The obligation of those of us who find ourselves in a minority position–and believe me, I’ve been in minority positions a lot— is to persuade enough other people of the wisdom/prudence/soundness of your position that you become a majority.

Of course, that takes effort, and persistence, and a willingness to listen and to compromise.

One of the reasons American politics is so debased these days is that too many people share Cosby’s evident disinclination to participate in the hard work required by the democratic process. Too many legislators want to blame their inability to get their own way on other people’s bad faith, or ulterior motives, or “undemocratic” behavior.

To say that the majority isn’t always right is an understatement. But that doesn’t make majority rule undemocratic.

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Democracy and Liberty Continued…

Indiana’s very “Christian” Governor has come out (no pun intended) in favor of letting Hoosiers vote on whether the state should recognize same-sex marriages. He has also disclaimed any intent to discriminate–why bless my grits, honey, he’s all in favor of people choosing their own lifestyles! Surely it can’t be discriminatory to deny civil recognition to non-biblical unions, even if that recognition does carry with it 1030+ rights and privileges.

After all, what’s a little tax inequity among friends?

As a member of Indiana’s legislature assured me the last time I testified against HJR 6 or whatever the number was–there is absolutely no discrimination involved here. The same marriage laws apply to straight and gay people–they can all marry people of the opposite sex.

And rich and poor people alike are prohibited from sleeping under bridges.

The problem with voting on a constitutional amendment that would deny certain people rights that our laws deem to be fundamental is that–in our system, under our Constitution–rights are not subject to the whims of the majority. That’s why they are rights, rather than privileges. No one said it better than Justice Jackson, in West Virginia Board of Education v. Barnette. In my all-time favorite Supreme Court quote, Jackson wrote

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein..The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Presumably, Governor Pence and Brian Bosma both slept through Constitutional Law. Although I have a sneaking suspicion that they might suddenly remember this principle if they faced mean-spirited, politically-motivated efforts to vote on their fundamental rights.

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