“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
US Constitution, Article 1, Section 4, Clause 1
The United States struggled with what this new animal – “democracy” – should look like from the get-go. There were no other nations with a democratic model back in 1787, and the colonial delegates gathered in Philadelphia were tearing each other apart about how to elect the nation’s chief exec. “One group of delegates felt strongly that Congress shouldn’t have anything to do with picking the president. Too much opportunity for chummy corruption between the executive and legislative branches.
“Another camp was dead set against letting the people elect the president by a straight popular vote. First, they thought 18th-century voters lacked the resources to be fully informed about the candidates, especially in rural outposts. Second, they feared a headstrong ‘democratic mob’ steering the country astray. And third, a populist president appealing directly to the people could command dangerous amounts of power.” History.com. The result: the Electoral College, a group of specific delegates selected every four years to elect the president. The populist concerns behind this controversy seem almost laughable in 2022, given that the populist-driven GOP used this same system to elect a populist president in 2016. The Electoral College was notably flawed, even at the time, but it was “The Great Compromise” that pleased no one but worked… sort of.
Indeed, “Of the 58 presidential elections in the history of the United States, 53 of the winners took both the Electoral College and the popular vote. But in five incredibly close elections—including those for two of the past three presidents—the winner of the Electoral College was in fact the loser of the popular vote.” History.com. In 2016, for example, Donald Trump lost the popular vote but won the Electoral vote. Those original constitutional delegates did not trust each other. A flawed system still challenges the modern vision of what constitutes a democracy.
This confusing distrust also defined those pre-constitutional delegates’ attitudes in Congressional representation. Less populated states, vast tracts of land with farmland and very little in the way of manufacturing or trading, feared and held in disdain those states with big harbors (trading centers) and manufacturing capacity, notably with relatively densely populated cities. The “Connecticut Compromise” straddled that disconnect with a bicameral legislature: the population-based House of Representatives (where all appropriate bills must originate) and the land mass-based Senate (where each state was accorded two Senators). This was all well and good in a nation that was 94% agricultural. Not particularly effective today in a nation where farmers account for less than 2% of our workforce, and where we are approaching becoming 90% urban. Today 30% of the population elects 50% of the Senate.
This fundamental distrust, the complete lack of any then-functioning democratic systems as a possible model, the use of districts not individual votes, the inability to communicate quickly (versus days or more on the road by horseback) and the need to get the nation up and running, created an admittedly imperfect founding document. Those charged with creating our Constitution figured it could be amended along the way. No one ever suspected that severe partisan polarization would eventually make the Constitution “unamendable.” The United States has the least amendable constitution in the democratic world; the last amendment (the 27th – Congress cannot give itself a raise without an intervening election) was passed three decades ago, centuries after it was introduced in 1789.
The distortions in our political system have led to a litany of anomalies, exacerbated by recent Supreme Court rulings curtailing the application of the equal protection provisions of the 14th Amendment in voting cases and those pitting religious beliefs against antidiscrimination laws, that led the prestigious British journal, The Economist, to relabel the United States as an unrepresentational, “flawed democracy.” International organizations and the leadership of many countries have written about their fear that the United States, using that archaic legal system, is veering towards right-wing, populist autocracy.
The January 6, 2021, insurrection, an attack on the Capitol – subsequently officially called “ordinary citizens engaged in legitimate political discourse” by the Republican Party despite the violence, unending assertions from a former president and his masses of his followers about a “stolen election,” a completely false assertion – reaffirmed suspicions of the possible end to American democracy. The Supreme Court just might help right that perception, or simply hammer in a very large nail in our democracy’s coffin.
On December 7th, the Supreme Court heard oral arguments in the case, Moore vs Harper, following their refusal to step into this North Carolina gerrymandering case back in March, allowing the court-drawn districts to be used this year. The case will examine the interpretation of the above constitutional provision, perhaps in the context of other, later constitutional amendments.
The case: “Republican efforts to draw congressional districts heavily in their favor were blocked by a Democratic majority on the state Supreme Court because the GOP map violated the state constitution… A court-drawn map produced seven seats for each party in last month's midterm elections in highly competitive North Carolina.” Mark Sherman, Associated Press, December 5th. But the bigger and more frightening aspect of this case, beyond the gerrymandering and state constitutional questions, is whether a state legislature can so set the “manner” of election so as to allow an effective legislative override or replacement of a popular vote.
“The Republican leaders of North Carolina's legislature told the Supreme Court that the Constitution's ‘carefully drawn lines place the regulation of federal elections in the hands of state legislatures, Congress and no one else.’… Three conservative justices already have voiced some support for the idea that the state court had improperly taken powers given by the Constitution when it comes to federal elections. A fourth has written approvingly about limiting the power of state courts in this area.
“But the Supreme Court has never invoked what is known as the independent state legislature theory. It was, though, mentioned in a separate opinion by three conservatives in the Bush v. Gore case that settled the 2000 presidential election.” AP. During oral arguments, liberal and ultra-right-wings of the Court predictably split – with three other conservative justices (Roberts, Coney Barrett and Kavanaugh) in the middle expressing concerns about a radical shift of election control to state legislatures while wanting to limit judicial election supervision. The new 6-3 conservative court is making unpopular rulings. Is this finally hurting the GOP? Is there possibly a nascent movement within the Court that might move away from the radical right?
The results of the mid-terms may have denied the GOP their expected red tsunami, but so far we still face a rogue Court, seemingly hell-bent on rewriting their own precedents, Congressional statutes and even provisions of the Constitution to suit that ultra-right-wing Trump reconfiguration. Trump’s disdain for the Constitution – “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution” in his own words – is also unfortunately deeply reflected in the MAGA movement. Does our democracy hang by a slender thread that autocratic partisans want to cut?
I’m Peter Dekom, and that the Supreme Court even took this case suggests that American democracy might be at risk, in more than one case before them.
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