SCOTUS scourge: how to end run the Supreme Court’s emerging threat to democracy

Rather than protecting political equality, SCOTUS is now its primary menace. Proportional voting methods would circumvent the Courts.

It’s grisly living in the USA these days. One has a sense of another impending asteroid, named SCOTUS-2, that is about to strike, and multiple times. With the November election looming, in which congressional majorities will be decided and the rules for administering fair elections are more contentious and disputed than ever, the next Bush v. Gore type of constitutional crisis may be a mere months away. As Stanford political scientist Larry Diamond and others have said, “Democracy is on the ballot.”

Here are some ominous signs of what is to come. On June 28, the black robed, nine-member Republican-controlled legislature – er, I mean the Supreme Court of the United States – overturned a federal district court’s order that the Louisiana legislature must draw a new congressional map to include a second majority-black district. Blacks comprise a third of Louisiana’s population yet the map was purposely rigged by Republican legislators to ensure that a black representative would win only one out of six US House seats. The Justices’ decision was unsigned and gave no reason, just like the unsigned Bush v. Gore in 2000 which ended the vote counting in Florida and decided one of the closest presidential elections in US history. Shake your head and repeat after me: “Five votes beats a reason any day.”

But SCOTUS already had a dress rehearsal for this judicial collision. Last February it reinstated Alabama’s congressional map that a lower federal court had ruled was illegally diluting the power of black voters by drawing only a single majority-black district instead of two. In Merrill v. Milligan, the federal district court ordered Alabama to draw a second majority-black district, but once again the Black Robes’ intervened with a brief, unsigned order that omitted any legal rationale or reason.

In a third opinion last March, Wisconsin Legislature v. Wisconsin Election Commission, SCOTUS issued yet another unsigned order that further limited the conditions under which a state may draw a majority-black district, further restricting diverse representation. Law professor Rick Hasen reacted with alarm, saying the Supreme Court “continues to chip away at the Voting Rights Act without acknowledging that it is killing off the last major protection for minority voters from discriminatory districting plans.”

These and other pending decisions suggest that the SCOTUS scourge is poised to completely flush the nearly 60-year-old Voting Rights Act, the nation’s premier instrument for achieving political equality, just like it has done for women’s reproductive rights. Voting rights attorney Drew Penrose issued a Tweet storm in alarmed reaction to the latest Supreme Court outrage. “The upshot,” said Penrose, “is that not only will the Court's next term allow states to minimize majority-minority districts, it may require them to.”

Our Shared Republic ⚙️ 🏛 @RepublicShared

9/ The upshot, I think, is that not only will the Court's next term ALLOW states to minimize majority-minority districts, it may REQUIRE them to. The Wisconsin decision exhibits really extreme hostility to race-conscious districting.

What does this mean for the future of political equality and broad “mirror” representation for the diverse communities of this 330 million strong United States of America? It means the judicial system, which for over 50 years since the Voting Rights Act of 1965, and even before that in Topeka vs. Brown and other Supreme Court decisions, has been a vehicle for integration and fairer representation, is in the process of becoming slowly, inexorably, a dead end for representational justice. States will be free to draw legislative districts with no consideration given to electing under-represented minority communities. This will result in a new normal, says political scientist Lee Drutman from New America, in which “any approach to political equality that depends on the courts is a losing battle.”

The US has had a long, tragic and murderous history of suppressing the political rights and livelihoods of racial minorities. Much progress toward achieving democratic equality made was realized only in the last half-century. The steady march to bend the arc of the moral universe towards justice, to paraphrase Dr. Rev. Martin Luther King Jr., which has become a core part of the conscience of this American nation, is about to be slowly strangled. “I can’t breath, I can’t breathe.” Once a nation loses its principled compass, even more tragic things are sure to happen.

Welcome to the New Jim Crow.

Proportional representation would end run the Supreme Court

There is still hope, but a change of strategy and tactics is in order. It is clear that we can no longer depend on the Courts, we must find another route to democratic equality. Representative government is established by specific rules and regulations, so with judicial justice blocked, we no longer have a choice but to turn to the legislatures, with a renewed sense of mission, to modify our electoral rules.

When it comes to enacting political equality, the decades-old methodology of gerrymandering “winner take all” district elections has always had its peculiar drawbacks. Using well-known methods like cracking, packing and stacking to manipulate the district lines in a way that dilutes your opponent’s representation opportunities, the success of this approach has always depended on being in control of the line-drawing, and also the willingness of the judiciary to play along.

But what if there is another method that doesn’t depend on the machinations of the self-interested incumbents and partisans, nor the whims and wackiness of “minority-ruled,” Senate-confirmed judges?

Fortunately, there are much better and more modern methods of democratically electing our representatives. It’s only because Americans are stuck to the flypaper of old ideas, and clinging to some very antiquated nostalgias for those deeply flawed 18th-century founders, that we have not joined most of the rest of the world in adopting one of the electoral systems grouped under the category of “proportional representation.”

Proportional voting methods generally do not use single-seat districts as a foundation for representation (though there are flexible variants that do incorporate a degree of such geographic-based representation). Instead they use multi-seat districts, and political parties (or in nonpartisan elections, groupings of like-minded voters) win representation in proportion to their voting strength. Imagine a district with 10 legislative seats: if a political party receives 10% or 30% of the popular vote, it would win one out of 10 or three out of 10 of the seats, instead of nothing; if it wins 60% of the popular vote it would gain six out of the 10 of the seats, instead of everything.

Proportional voting is not a “winner take all” system, in which one winner grabs all representation. Instead, it generally results in a range of political parties winning a place at the legislative table. A majority of votes for a party or viewpoint would always win a majority of seats (unlike the cancer of “minority rule” which is slowly snuffing out US democracy). This also would give voters more viable choices on their ballots, no matter where they live, including “orphaned” Republican voters living in heavily Democratic states and regions, Democrats in Republican states and regions, minor party supporters everywhere, and underrepresented communities of interest, such as racial minorities and women. Instead of the current quagmire, in which entire regions and states have become partisan monopolies, all regions of the country would be competitive for different viewpoints. Imagine Chicago Republicans, or rural Alabama or Mississippi Democrats, winning seats in Congress.

This is a gamechanger, and it is eminently doable. By combining three adjoining districts into one three-seat district elected by proportional ranked choice voting, a candidate would need to garner just over 25 percent of the vote to win one seat. This modest change would result in multi-partisan representation in every region. More moderates would get elected, and the resulting cross-fertilization in GOP and Democratic caucuses would lessen some of the polarization and harsh rancor that now infects the Congress.

In the upcoming 2022 elections, fewer than 40 US House seats out of 435 are considered “competitive” for either major party to win, because the districts have become lopsided one-party fiefdoms. Multi-seat districts elected through P-RCV would stir up this “partisan protection” racket and inject a lot more competition into our elections. It would give moderate candidates a vehicle through which to mobilize a more centrist voter base, that could compete with the wings of the major parties.

Nothing in the U.S. Constitution requires single-seat districts for the U.S. House or the 50 state legislatures, and support is building for trying proportional options.  During this time of deep-seated confusion and anxiety in our nation, a government elected by proportional representation offers tantalizing prospects that should be fully explored. We are facing a meltdown of American democracy, and inaction is not an option. We have no choice but to enact new approaches that do not depend on the Courts to engineer political equality.

Steven Hill @StevenHill1776