Op-ed: Time is short to maintain presumption of majority rule
Something many in the U.S. may not realize is our constitution and constitutional order in many ways favor a tyranny of the minority. All that matters in the election of a President of the United States is the electoral college, which has permitted two men, just since the turn of the 21st Century, to win the White House while losing the nationwide popular vote. Two U.S. Senators per state regardless of population size means that small, less populous states have enormous, outsized power in that body. The ability of state legislatures to gerrymander congressional districts after the census every ten years means politicians can choose their voters, as opposed to the other way around. The President nominates and the Senate confirms appointees to the federal judiciary, so all three branches of government are beholden to minority will.
Yet, even with all of these advantages, the modern Republican Party with its broadly unpopular agenda struggles. In 2018 and 2020, they lost the House, the Senate (in a tie vote split by Vice President Kamala Harris), and the White House. It’s no longer enough to argue “the U.S. is a Republic, not a democracy,” and proceed; Republicans in states across the country are laying the groundwork to make sure that their losing federal power becomes a thing of the past.
According to the Brennan Center for Justice, in 2021 “Between Jan. 1 and Sept. 27, at least 19 states enacted 33 laws that make it harder for Americans to vote.” Overall, says BCJ, “More than 425 bills with provisions that restrict voting access have been introduced in 49 states in the 2021 legislative sessions.”
These laws take many approaches. They include: shortening the window to apply for a mail ballot; shortening the deadline to deliver a mail ballot; making it harder to remain on absentee voting lists; eliminating or limiting the sending of mail ballot applications to voters who do not specifically request them; eliminating or limiting sending mail ballots themselves to voters who do not specifically request them; restricting assistance in returning a voter’s mail ballot; limiting the number, location, or availability of mail ballot drop boxes; imposing stricter signature requirements for mail ballots; imposing harsher voter ID requirements; expanding voter purges or the risk of faulty voter purges; increasing barriers for voters with disabilities; banning snacks and water to voters waiting in line; eliminating Election Day registration; reducing polling place availability (including locations and/or hours); increasing the number of voters per precinct; and limiting early voting days and/or hours.
Voting is a constitutionally guaranteed right and a civic duty and should be one of the easiest things we can do. Not only are Republicans actively working to suppress voter turnout–especially among more reliably Democratic voters like Black Americans, Indigenous Peoples, people with disabilities, young voters (especially college students) and the less affluent–but they’re trying to get officials elected in the states, like Secretaries of State, state legislators, and certain elected state judicial officials, to play along in case the outcomes still aren’t what they’d like. Republican elections officials and judges across the country refused to play along with Trump’s Big Lie in 2020 and the party in many states is trying to make sure that kind of integrity isn’t displayed again.
The good news is we don’t have to just sit back and let the GOP get away with this. Two pieces of legislation under consideration by the U.S. Senate right now would help prevent or mitigate this anti-democratic mess. The John Lewis Voting Rights Advancement Act and the Freedom to Vote Act are crucial for the preservation and expansion of democracy in America. The only thing standing in the way is an arcane Senate rule known as the filibuster.
In 1957, then-Vice President Richard Nixon issued an advisory opinion that the filibuster was unconstitutional because it denies states equal suffrage in the Senate in violation of Article V of the U.S. Constitution. To quote a piece form earlier this year in the LA Times, Article I of the Constitution “sets forth supermajority votes in the Senate only in narrowly defined cases like ratifying treaties, overturning presidential vetoes and convicting impeached officials.” Since Sen. Manchin and Sen. Sinema of Arizona refuse to alter or abolish the filibuster, Vice President Harris should rule that the 60-vote supermajority requirement for the enactment of general legislation violates Article V of the Constitution, as well as the mathematical equality of each Senator’s vote preserved under the 17th Amendment and the overall constitutional presumption of majority rule.
A majority of Senators, including Manchin, could overrule Vice President Harris, but to do so they would have to go on record as opposing the constitutional equal suffrage of the states. With so much at stake, the time to be bold and fearless is now.
Eric Engle is a Parkersburg resident.