To Save American Democracy

I was a long time Bernie Sanders supporter. I still am. As an attorney and Vietnam veteran I even served as a Senior Adviser to Vets for Bernie during his 2016 campaign. I also supported Sen. Sanders during the 2020 primaries. That was then. This is 2022.

President Biden was not engaging in hyperbole when he recently warned the nation that “democracy will be on the ballot” this November.

I recently underscored his message with my coverage of the amicus brief to SCOTUS from all 50 State Supreme Court Chief Justices warning in no uncertain terms against the dangers of the “fringe”, so-called “Independent State Legislature” (ISL) theory, soon to be decided by the High Court. The case, Moore v. Harper, was brought to the Court via North Carolina Republicans seeking to override their own state Supreme Court regarding partisan gerrymandering. The theory they are using to do so echoes the radical interpretation of the U.S. Constitution’s Elections Clause as advanced by disgraced former law professor, John Eastman, during his attempt to help Donald Trump steal the 2020 Presidential election.

Irrespective of whether it comes by way of a violent insurrection or via judicial fiat handed down from the U.S. Supreme Court’s “radicals in robes“, American democracy may soon be all but lost absent a massive turnout for the midterms by everyone who desires to save it.

If a SCOTUS majority embraces the ISL theory, it could lead to a circumstance where MAGA Republican State legislatures can not only rig all future U.S. House elections via partisan gerrymandering, voter suppression and intimidation but also present what the Brennan Center described as a “nightmare scenario” in which a partisan, gerrymandered State legislature “would invoke [the ISL] as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors.” In other words, under the ISL theory a partisan gerrymandered State Legislature, and not the People, would hold the ultimate power to “elect” all future Presidents. Neither gubernatorial vetoes, nor state voters nor state Constitutions nor state Supreme Courts would be able to overrule them.

Where MAGA Republicans proponents of the ISL theory offer an absurd bastardization of the Constitution’s Elections Clause as a ticket to undermine democracy, most legal scholars regard the same Clause as providing a means by which democracy can be saved…

Back in March of 2021, I observed when covering Georgia Democratic Senator Raphael Warnock’s eloquent plea to end the filibuster in order to adopt critical federal voting rights legislation:

Warnock’s eloquence fell upon the deaf ears of two ethically challenged Democratic Senators, Joe Manchin (WV) and Kyrsten Sinema (AZ). Those two, together with all 50 Senate Republicans, voted to block a limited filibuster that would have allowed passage of legislation to protect voting rights and democracy itself.

In the following months, it looked like extreme partisan gerrymandering had all but doomed Democrats’ prospect to retain a majority in the U.S. House. But that was before the U.S. Supreme Court’s newly-empowered far-right majority overturned Roe v. Wade. The Court’s direct assault on privacy rights and reproductive freedoms triggered a “jaw-dropping” spike in voter registration by young female Democrats as seen in the massive backlash in deep “red” Kansas, where a proposed state constitutional amendment to allow the banning of abortion rights was rejected by a nearly two-to-one voter landslide.

Given the unprecedented threat posed by the ISL theory, it is not overstatement to argue that democracy itself hangs in the balance of Democrats’ ability to retain control of the House and the addition of at least two Democrats in the U.S. Senate this year. That must be followed by reform of the Senate filibuster to allow simple majority passage of a new For the People Act prior to the 2024 Presidential election. Additionally, there must then be a majority-supported expansion of the U.S. Supreme Court to 13 Justices. That expansion is needed to prevent the “nightmare scenario” in which MAGA Republican state legislators in battleground states utilize the ISL theory to overrule the will of their voters in a Presidential election. SCOTUS expansion could also result in the overturning of several recent anti-democracy decisions, like the Court’s “infamous” Citizens United decision, which treated corporations as people and money as “free speech”.

Scholars have recognized that both the Electoral College and the U.S. Senate are structurally undemocratic institutions. Ideal reforms — replacing the electoral college with a popular vote for President and linking the number of a State’s senators to the size of its population — could not be achieved absent amendments to the U.S. Constitution. However, a Democratic-controlled Congress could reduce some of the U.S. Senate’s undemocratic features.

A new +2 Democratic Senate majority, if it can be gained in November, should allow the filibuster to be ended for all issues. This would open the door to the full array of Biden’s agenda, as embodied in the original Build Back Better Act, the President’s plan to raise the minimum wage and a bevy of other progressive issues that Republicans simultaneously blocked as they disingenuously complained about a lack of Democratic accomplishments.

If the filibuster is eliminated entirely, voters, in 2024, will be presented with a clear picture of the difference between Democratic and Republican agendas, not to mention their respective impacts upon their daily lives. For example, consider the lasting impact of a permanent expansion of the previously temporary child tax credit which, while in effect, lifted 3.7 million children out of poverty. By embracing “government of the people, by the people and for the people,” a new Democratic-controlled Congress can enhance the health of both our citizenry and our democracy.

A Democratic-controlled Congress should also approve statehood for Washington D.C. and Puerto Rico. That would add two seats in the House, four more U.S. Senators, as well as each jurisdiction’s much-deserved representation in Congress for the U.S. citizens residing within those two federal enclaves. It would also add a minimum of six electoral votes in the next Presidential election. It can all be done — if the filibuster rule is eliminated — with simple majority passage in both chambers and the signature of the President.

But none of this will be possible absent a massive turnout on or before November 8 by those who want American democracy itself to survive. Nothing less than democracy’s survival is now at stake.

UPDATE 10/25/2022: Describing MAGA controlled Republicans as a “dictatorship party” and “the most dangerous political movement since the Civil War”…, former Green Party Presidential Candidate Ralph Nader arrived at the same conclusion as the author. We the People must vote “blue” in ’22 to save democracy.