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Congress needs to fix plenty of things, but not the Supreme Court
The death of Justice Ruth Bader Ginsburg has unleashed calls for institutional overhauls to expand the size of the Supreme Court or limit the time justices can serve — as well as outright threats to pack the bench, depending on who controls the Senate and the White House after November's election.
But the Supreme Court is not the problem.
The fresh cries to "fix the court" are ironic at best and hypocritical at worst. They echo the calls to "impeach Earl Warren" that rang out in the 1950s, after that chief justice wrote the unanimous Brown v. Board of Education decision that declared segregated schools unconstitutional.
Then, as now, the problem was not the nation's high court. It was the septic politics — then of segregation, now of raw partisan division — that infected the country.
Back in the 1960s and 1970s, reactions to septic politics were similar to today's calls to fix the Supreme Court. Instead of ostracizing its members who had perpetuated segregation, Congress reorganized the seniority system and created a multitude of new committees and subcommittees. Instead of taking a stand against segregationist senators and House members — other than rejecting their ideology to enact landmark voting rights and civil rights legislation — Congress replaced a few of the committee fiefdoms they'd controlled with a multitude of new ones. And that made Capitol Hill a much more difficult place to lead or control. So politics remained septic.
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Similarly, to "fix" the electoral system, Congress enacted campaign spending laws that essentially privatized the election process and set in motion the forces that now make elections extraordinarily expensive, uncompetitive and gerrymandered to perpetuate control by the two major parties.
Instead of bridging political divisions, Congress enacted institutional reforms that simply proliferated the number of divisions and deepened them. The two major parties are as polarized as ever, more internally divided than ever -- and still comfortably ensconced in power thanks to campaign finance laws that discriminate against third parties and independent candidates.
As Jonathan Rauch of the Brookings Institution has written, the nation continues to pay the price for these so-called reforms. They created the political system that enabled Donald Trump to beat the Republicans and then beat the Democrats. It remains possible he could do it again this November. "Fixing" the Supreme Court by limiting tenure or adding seats will do nothing to overcome the political divisions or fix the political machinery that elevated and has sustained the incumbent president.
More likely, any such rushed alterations would have the sort of undesirable and unforeseen consequences that inevitably arise from hastily conceived policies that are driven more by partisan fervor than by wisdom.
So let's leave the Supreme Court alone. Despite the debasement of the confirmation process that began with President Ronald Reagan's failed nomination of Robert Bork 33 years ago, the court still operates collegially and effectively. Despite the complaints about how Republican appointees now dominate the bench, abortion remains a right, the Affordable Care Act has not been struck down, gay marriage is constitutionally protected and employers may not discriminate against people based on gender or sexuality. Perennially, the court receives the highest approval ratings among the branches of the federal government.
Instead of overhauling the Supreme Court, perhaps lawmakers and other aspiring fixers might first give Congress itself some homework. Before turning on the court, perhaps Congress could first demonstrate a capacity to put partisanship aside and pursue an agenda that is unquestionably bipartisan and clearly in the national interest. A better coronavirus testing plan? Perhaps a dollar-a-gallon additional federal tax on gasoline to cut greenhouse emissions and support sustainability research? Maybe a fix for the public schools?
The Supreme Court is not broken. So don't fix it. Instead, Congress should demonstrate that it can choose to fix the politics and policies that need fixing.
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Lawmakers in the Virginia Capitol have an opportunity to transform the quality of elections, according to Washington and Lee University professor Mark Rush.
Saving the Voting Rights Act: Virginia as a case study for reform
Rush is a professor of politics and law and director of the center for international education at Washington and Lee University.
Enactment of the Voting Rights Act in 1965 remains a celebrated landmark in American history. It's time to celebrate the law's potential anew by making some big changes in how state legislatures are elected. My home state of Virginia illustrates the merits of doing so.
First, a quick refresher course: The law enacted 55 years ago put an end to literacy tests, poll taxes and a host of other discriminatory practices that had kept minority voters from gaining access to the polls. To protect them from being gerrymandered out of power, Section 2 forbade discriminatory redistricting or other practices that would deny minority voters an equal opportunity "to participate in the political process and to elect representatives of their choice."
Section 2 has generally been implemented through what can best be described as the "affirmative gerrymandering" of election districts to include enough minority voters that their candidate of choice would win.
On the one hand, this represents nothing less than retributive justice: Districts across the country had been drawn for decades to make sure minority voters could not elect their preferred candidates, so redrawing them to enhance minority representation was a way to redress the impact of that discrimination. On the other hand, in assuring the election of more minority legislators, the country — courts, legislators, litigators and experts — took away perhaps the greatest promise of the Voting Rights Act: to give minority voters a choice on Election Day. This was because the switch worked only because newly gerrymandered, winner-take-all elections ensured minority representation opportunities.
Granted, there is nothing unique about winner-take-all elections. The overwhelming majority of state legislative districts use winner-take-all elections. Of the 7,383 state legislative districts drawn after the 2010 census, 86 percent are represented by a single person. While states must use such winner-take-all elections for Congress, they are free to choose any sort of system for their legislatures. And four — Arizona, New Jersey, South Dakota and Washington — elect all their legislators to seats in multimember districts.
It is well-understood why winner-take-all elections give voters little choice, make incumbents nearly unbeatable and devastate the quality of elections. And so, the Voting Rights Act's importance and impact are being muted because our electoral system now denies too many of us the "choice" the law promised.
What has happened in Richmond, the capital of the nation's 12th largest (and fast-growing) state, demonstrates this clearly: The election of minority members of the General Assembly is essentially guaranteed while the quality of elections in their districts is undermined.
Contests for the Legislature are rarely competitive. In fact, candidates ran unopposed in 66 of the 160 Senate elections and 443 of the 900 House of Delegates contests from 2001 through 2017. Put differently, 41 percent of Virginians had no reason to vote for state senator and 51 percent could have steered clear of a state representative contest because the results were foregone conclusions. As bad as this data may appear, measures of electoral competition and democratic health demonstrate that voters in places the Voting Rights Act was written to help are suffering an even worse democratic deficit.
In the past two decades, five of the 40 Senate districts and 12 of the 100 House districts have been drawn to promote minority representation, according to Virginia's Division of Legislative Services. Yet, Senate districts drawn to comply with the VRA have been almost twice as likely as those in the rest of the state to go uncontested — and House districts 65 percent more likely.
These districts also have significantly lower numbers of registered voters — more than 5,000 fewer than the remaining House districts and some 11,000 fewer than the other Senate districts. Total votes cast and the share of eligible voters who turn out in the general election are much lower in the VRA districts. In the nine legislative elections through 2017, turnout across all state legislative elections averaged 47.6 percent — but in VRA districts the turnout and raw numbers of votes cast were markedly less.
That means winning in VRA districts (when there's been a contest) has required fewer votes than in other districts — 1,700 less on average for a House seat and 14,900 less for a Senate seat, when you compare all the results for the two categories of districts for the past two decades. At the same time, the winners of VRA seats in both chambers have taken an average of 88 percent of the vote — at least 10 points better than the winners in other districts.
All these numbers add up to a story of electoral devastation in the Virginia districts drawn to benefit minority voters. They get represented by members of minority groups, but the voters have had very little choice in the process. And, remember, electing "representatives of their choice" was the essential goal of Section 2 of the landmark voting rights law.
The winner-take-all electoral system is to blame for the state of Virginia elections. But, the solution to this dire situation is obvious — and at hand.
Extensive research indicates that a simple change to multimember General Assembly districts would invigorate electoral competition and increase turnout while also enhancing minority representational opportunities. Critics suggest that voters would find such a system confusing. Nonsense.
In fact, Gov. Ralph Northam just signed into law two bills that enables local electoral boards, the general registrar and city council members to use ranked-choice voting and establishes ranked-choice voting for board of supervisors elections in counties operating under the county manager plan of government.
If the Commonwealth can do this at the local level, it can easily and, therefore, should switch to a system of multimember General Assembly districts represented by people chosen in elections with ranked-choice voting. This would transform the quality of elections for all voters while fulfilling a long-overlooked mandate of the Voting Rights Act. It is only a matter of political will.
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The Supreme Court
If the electors can be faithless, why have an Electoral College?
Rush is a professor of politics and law and the director of the center for international education at Washington and Lee University.
This spring, the Supreme Court will hear arguments in Colorado Department of State v. Baca and then decide if members of the Electoral College are bound to abide by the laws of the states from which they hail.
In the case, Michael and Polly Baca as well as Robert Nemanich — electors from Colorado in 2016 — assert that this year's (and all future) electors have the right to vote for anyone, regardless of how the people of Colorado vote. The Supreme Court chose to hear the case because of a conflict between two lower courts. The Washington Supreme Court ruled a state could bind its Electoral College delegates. In Colorado, the 10th U.S. Circuit Court of Appeals ruled that this was not the case.
The Baca case is vexing for numerous reasons. Foremost, it highlights once again the arcane and undemocratic manner in which the United States elects its presidents. According to the Constitution, one needs a majority of the electoral college votes — not a majority of the popular vote — to win the election. For most of the country's history, the winner received a majority of both. But in 2000 and again in 2016, George W. Bush and Donald Trump did not win the popular vote.
For those who decry such results, the Electoral College is nothing less than an abomination — a mechanism that can override the will of the people. For others, it is nothing more than another rule built into the constitutional structure (such as an independent judiciary and the bicameral Congress) that makes it difficult for majorities to form (or govern) too easily.
Regardless of how one views the Electoral College, the Baca case looms as an ominous threat that could render the Electoral College even more controversial. As arcane as the system may be, it remains part of a constitutional structure that recognizes the integral role states play in the political system. No doubt, the system has its shortcomings. Throughout American history, "states' rights" claims have promoted a host of evils ranging from the perpetuation of slavery and Jim Crow laws to more mundane but inefficient practices, from different driving ages for different categories of people to laws that make it difficult for professionals to transfer their licenses from one state to the next.
The sordid history of states' rights notwithstanding, within the context of the Electoral College the states remain a fundamental part of the constitutional system. It would be extraordinary — and even more undemocratic — to empower a state's electors to ignore the will of the people who sent them to the college in the first place.
Granted, if electors are bound by the will of the people, they could rightfully ask what the point of sending them to their state capitals to cast their votes for what would be a preordained outcome. There is no questioning this logic: If we know the outcome of the presidential election in November, what's the point of symbolically reaffirming it two months later?
On the other hand, if the electors can defy the will of the people who chose them with their presidential votes, what's the point of having electors in the first place? Again, if the election result is known in November, why go through a ritual two months later if the Electoral College delegates can overturn the November results?
As controversial and arcane as the Electoral College is, it remains part of the Constitution. If the country wishes to get rid of it, it must do so by constitutional amendment. This is an arduous, slow and time-consuming process. But, it is a process the Constitution outlines clearly. If the Electoral College is such an undemocratic disaster, an amendment to get rid of it should require relatively little trouble.
Until the amendment idea becomes a reality, however, there is no question electors should be bound by the will of the people and the legislature of the state that sends them. To free them from that bond would render the Electoral College even more undemocratic than it already is and radically increase the likelihood of electoral chaos every four years with the nation forced to wait until January, close to inauguration day, to see whether the November popular vote result was to be overturned.
Let us hope — let us pray — that the Supreme Court keeps this in mind as it hears the Baca arguments.
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