US Democracy

Top-level Outline

  1. Structure of US Government
  2. Electoral Systems
  3. Rights of Democratic Participation
  4. Protecting Individuals from the Tyranny of the Majority
  5. Protecting Democracy from the Abuse of Power

Outline

  1. Structure of US Government
    1. Federal Government
      1. Executive Branch
      2. Legislative Branch
      3. Judicial Branch
    2. States and DC
  2. Electoral Systems
    1. House of Representatives
    2. Senate
    3. President and Vice President
    4. Logical Consequences of US Electoral Systems
      1. Distribution Dependency in the House, Senate, and Electoral College
      2. Violation of One Person, One Vote
      3. The House is subject to Gerrymandering
  3. Rights of Democratic Participation
    1. Right to Participate in Democratic Governance
    2. Expansion of Suffrage
  4. Protecting Individuals from the Tyranny of the Majority
    1. Tyranny of the Majority
    2. Rights
    3. Bill of Rights
    4. Problem of Unenumerated Rights
    5. Tyranny of the Misinformed Majority
      1. Some Framers had a dim view of the majority
      2. How the Framers sought to protect democracy from the majority
      3. The country evolved in a different direction
    6. Madison’s Argument that the Tyranny of the Majority is Unlikely
  5. Protecting Democracy from the Abuse of Power
    1. Abusing Power
    2. Framers’ Safeguards
      1. Separation of Powers
      2. Checks and Balances
    3. The Problem with the Framers’ Safeguards: Political Parties
    4. Proposals for Protecting and Expanding Democracy
    5. Preventing Abuse of the Electoral Count Act
      1. Electoral Count Reform in the $1.7 Trillion Spending Bill
      2. Electoral Count Act of 1887
  6. Addenda
    1. Robert Dahl’s Institutions of Representative Democracy
      1. From Robert Dahl’s Entry on Democracy in the Britannica
      2. From Robert Dahl’s Paper What Political Institutions Does Large-Scale Democracy Require?
    2. ‘Democracy’ or ‘Republic’

Structure of US Government

Federal Government

View US Federal Government Org Chart

Executive Branch
  • President — Vice President
    • Cabinet
      • Attorney General
      • Secretaries of State, Treasury, Defense, Homeland Security, Interior, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, Education, Energy, and Veterans Affairs
    • Non-Cabinet Level Departments
      • Office of Management and Budget (OMB), Council of Economic Advisers, National Security Council (NSC), office of the White House Chief of Staff
    • Agencies
      • Independent Executive Agencies, e.g. CIA, NSF, NASA
      • Independent Regulatory Agencies, e.g. Federal Reserve, SEC
    • Government Corporations, e.g. Amtrak, Postal Service
Legislative Branch
  • Congress
    • Senate
    • House of Representatives.
  • Congressional Agencies, e.g. GAO, CBO, Library of Congress, Congressional Research Service
Judicial Branch
  • Supreme Court
    • US Courts of Appeals
    • Special Courts, e.g. Court of Federal Claims, Court of International Trade, Tax Court, Court of Appeals for Veteran Claims

States and DC

  • Article I, Section 10 denies various powers to the states
  • Article I, Sections 3 and 4 and Article II, Section 1 give states power over elections
  • Article IV pertains to the states
    • Section 1: Full Faith and Credit
    • Section 2: Privileges and Immunities
    • Section 3: Admission of States
    • Section 4: Guarantees to States
  • Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.”
  • Twenty-Third Amendment gave the District of Columbia electors in the Electoral College

Electoral Systems

House of Representatives

  • The House has 435 seats, per the 1929 Permanent Apportionment Act
  • Apportionment
    • Each state is apportioned a number of House seats, approximately corresponding to its share of the aggregate population of the 50 states, with each state guaranteed at least one seat.  
    • Reapportionment takes effect three years after the census
    • The algorithm is explained in Computing Apportionment.
    • California has the most representatives, 53. Seven states have 1 representative.
  • All states except four use plurality voting for their representatives
  • One Person, One Vote
    • One Person, One Vote is the principle (not in the Constitution) that every person’s vote should count the same, i.e. should have the same weight or voting power.
    • In Wesberry v. Sanders, the Court ruled in 1964 that One Person, One Vote applied to congressional districts within a state, meaning that the districts had to be approximately equal in population.
  • Contiguity and Compactness
    • 34 states require that their congressional districts be contiguous, i.e. a person can travel from any point in the district to any other point without having to cross a different district.
    • 31 states require that their congressional districts be compact, i.e. not spread out, more like a circle than an elongated ellipse.
  • Representation in the House is subject to partisan gerrymandering.

Senate

  • Senate representation results from a compromise at the Constitutional Convention
    • Failed Virginia (Large State) Plan
      • Congress should be bicameral, with the number of a state’s representatives in each chamber being proportional to its population.
    • Failed New Jersey (Small State) Plan
      • Congress should have one chamber, with the states having the same number of representatives.
    • Grand (Connecticut) Compromise
      • Virginia Plan for the House of Representatives
      • New Jersey Plan for the Senate
  • Like the House, all states except four use plurality voting for their Senators
  • Senators were initially chosen by state legislatures. Since 1913 they are elected by the people.
    • Constitution: Article I, Section 3, Clause 1
      • “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.”
    • Seventeenth Amendment (1913)
      • “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.”
  • The electoral system for the Senate fails to satisfy the principle of One Person, One Vote.
  • The party breakdown of the Senate can differ from the party breakdown of the voters.

President and Vice President

  • The President and Vice President are elected by the 538 electors of the Electoral College rather than directly by the people. Each elector has one vote.
  • Article II, Section 1 of the Constitution:
    • Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress
    • Thus,
      • a state gets n electors, n being the total number of its Senators and Representatives
      • a state’s legislature can choose its electors any way it wants.
  • The 23rd Amendment (1961) allocates to the District of Columbia the number of electors equal to the number of the least-populated state, meaning 3 electors.
  • The total number of electors is therefore 100 + 435 + 3 = 538
  • To win, a candidate needs a majority of the electoral votes, 270.
  • The states gradually transitioned from their legislatures choosing electors to election of electors by popular vote. (Wikipedia):
    • Initially, state legislatures chose the electors in most states.
    • By 1824, there were six states whose legislatures selected electors.
    • By 1832, only South Carolina selected electors by legislature vote.
    • Since 1864, electors in every state have been chosen based on the popular vote.
  • The winner of a state’s popular vote gets all its electoral votes, with two exceptions.
    • Maine and Nebraska allocate one electoral vote to the winner of each House district and two electoral votes to the statewide winner.
  • The electoral system for the Presidency contravenes the principle of One Person, One Vote.
  • The percentages of Democrats, Republicans, and other parties in the Electoral College can differ from their percentages in the electorate.
    • Four presidents were elected with fewer popular votes than their opponents
      • Rutherford B. Hayes in 1876
      • Benjamin Harrison in 1888
      • George W. Bush in 2000
      • Donald Trump in 2016.

Logical Consequences of US Electoral Systems

Distribution Dependency in the House, Senate, and Electoral College
  • The party breakdowns of the House, Senate, and Electoral College depend not only on the total votes each party receives but also on the distribution of those votes across congressional districts and states.
  • Thus, the party breakdowns of the House, Senate, and Electoral College can differ, sometimes dramatically, from the party breakdown of the electorate.

View Page Distribution Dependency

Violation of One Person, One Vote
  • The electoral systems of the Senate and Electoral College violate the principle of One Person, One Vote, that is:
    • Not every vote for Senator has the same weight
    • Not every vote for an elector of the Electoral College has the same weight.
  • Proof that not every vote for Senator has the same weight.
    • The weight of a single vote in a district = 1 / the population size of the district’s electorate.
    • The weight of a vote for a Senator in California = 1 / the population size of California’s electorate
    • The weight of a vote for a Senator in Wyoming = 1 / the population size of Wyoming’s electorate
    • The population sizes of California’s and Wyoming’s electorate are different.
    • Therefore the weight of a vote for Senator in California is not the same as the weight of a vote for Senator in Wyoming.
    • Therefore not every vote for Senator has the same weight.
  • Proof that not every vote for an elector of the Electoral College has the same weight.
    • The weight of a single vote in a district = 1 / the population size of the district’s electorate.
    • The weight of a vote for an elector in California = 1 / the population size of California’s electorate
    • The weight of a vote for an elector in Wyoming = 1 / the population size of Wyoming’s electorate
    • The population sizes of California’s and Wyoming’s electorate are different.
    • Therefore the weight of a vote for an elector in California is not the same as the weight of a vote for an elector in Wyoming.
    • Therefore not every vote for an elector has the same weight.

View One Person, Not One Vote

The House is subject to Gerrymandering
  • The ability of states to gerrymander their congressional districts follows from two facts:
    • In district representation, the party breakdown of a legislature depends, not just on the overall vote count, but also on the distribution of the parties across districts.
    • States have the power to change the distribution of political parties across congressional districts.
  • Proof:
    • In district representation, the party breakdown of a legislature depends, not just on the overall vote count, but also on the distribution of the parties across districts.
    • The House of Representatives uses district representation.
    • State legislatures have the power to change the distribution of political parties across congressional districts by redrawing district boundaries.
    • Therefore state legislatures have the power to change the party breakdown of the House of Representatives

View Gerrymandering

Rights of Democratic Participation

Right to Participate in Democratic Governance

  • For democracy to work, citizens must have the right to vote and other rights of democratic participation.
  • For Robert Dahl, these are:
    • Right to vote in the election of officials in free and fair elections
    • Right to run for elective office
    • Right to free expression
    • Right to form and participate in independent political organizations
    • Right to have access to independent sources of information
    • Rights to other liberties and opportunities that may be necessary to the effective operation of the political institutions of large-scale democracy
  • The Constitution establishes Dahl’s rights of democratic participation:
    • Body of the Constitution
      • Right to vote in the election of officials in free and fair elections
        • Implied by the phrase “elected by the people”
      • Right to run for elective office
        • The Constitution sets forth necessary conditions for holding various office, implying that people are otherwise free to run for office.
    • First Amendment
      • Right to free expression
        • Congress shall make no law …. abridging the freedom of speech
      • Right to have access to independent sources of information
        • Congress shall make no law …. abridging the freedom of … the press
      • Right to form and participate in independent political organizations
        • Congress shall make no law …. abridging … the right of the people peaceably to assemble …

View Dahl’s Institutions of Representative Democracy

Expansion of Suffrage

  • Initially voting was restricted to white male landowners.
  • Suffrage was extended to all white male adults
    • Jeffersonian Era (1790s to 1820s) Wiki
      • At the beginning of the Jeffersonian era, only two states (Vermont and Kentucky) had established universal white male suffrage by abolishing property requirements. By the end of the period, more than half of the states had followed suit, including virtually all of the states in the Old Northwest.
    • Jacksonian Era (1828 to 1854) Wiki
      • Even before the Jacksonian era began, suffrage had been extended to a majority of white male adult citizens.
  • Suffrage was extended to Black males
    • Fifteenth Amendment (1870) Britannica
      • Guaranteed the right to vote could not be denied based on “race, color, or previous condition of servitude.”
    • Twenty-fourth Amendment (1964) Britannica
      • Prohibited the federal and state governments from imposing poll taxes before a citizen could participate in a federal election.
    • Harper v. Virginia Board of Electors (1964)
      • Supreme Court extended the prohibition of poll taxes to state elections.
    • Voting Rights Act (1965) Britannica
      • Overcame legal barriers at the state and local levels that prevented African Americans from exercising their right to vote under the Fifteenth Amendment.
  • Suffrage was extended to women
    • Nineteenth Amendment (1920) Britannica
      • Extended the right to vote to women.
  • Suffrage was extended to 18 year-olds
    • Twenty-sixth Amendment (1971) Britannica
      • Extended voting rights to citizens aged 18 years or older.

Protecting Individuals from the Tyranny of the Majority

Tyranny of the Majority

  • Tyranny of the Majority in a nutshell:
    • A majority of the electorate believes that biracial sexual relations are immoral.  They elect representatives who enact legislation making interracial marriage a crime. A couple is found guilty of violating the law and sentenced to a year in prison
  • In Federalist 51 James Madison distinguishes two threats a democracy must guard against:
    • “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.”
  • The first is the tyranny of rulers.
  • The second is the tyranny of the majority, where a majority of voters elect representatives that unjustly restrict the freedom of individuals in the minority, for example by enacting laws that
    • make interracial marriage a crime,
    • prohibit the sale of intoxicating liquors, or
    • make distributing contraceptives to unmarried men or women a felony.
  • The majority may be motivated by differences in race, ethnicity, religion, politics, culture, moral codes, education, or wealth. The majority’s motivation may also result from misinformation, e.g. that one of the political parties wins elections by fraud.
  • John Stuart Mill put the risk this way in On Liberty:
    • “The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power.”
  • Or as some clever person said:
    • “Democracy is two wolves and a lamb voting on what they are going to have for lunch.”

Rights

  • A democracy protects individuals from the tyranny of the majority by establishing individual rights.  The right to free speech, for example, protects individuals against a majority making it a crime to criticize the government.
    • A liberal democracy is a democracy that establishes constitutional rights.
  • Rights protecting against the tyranny of the majority are negative rights.
    • A negative right to something (e.g. to keep and bear arms), or against something (e.g. unreasonable searches and seizures) prohibits the government from taking some sort of action (confiscating your guns or searching your home without a warrant).
    • A positive right to something (e.g. the right to a K-12 education) requires the government to take some kind of action (teach children).

Bill of Rights

  • The First Amendment establishes rights of democratic participation, prohibiting laws that abridge
    • freedom of expression
    • freedom of the press, providing independent sources of information
    • the right of the people to associate and assemble
  • The body of the Constitution sets forth other such rights:
    • The right to vote is implied by the use of the phrase “elected by the people.”
    • The right to run for and hold office is suggested by the necessary conditions set forth for holding various offices.
  • Other amendments establish rights against the police power of the state, for example:
    • the right against unreasonable searches and seizures
    • the right to due process
    • the right to a fair trial
    • the right against excessive bail
  • The Constitutional Convention curiously voted ten states to none not to include a bill of rights in the Constitution. 
  • The arguments set forth against inclusion:
    • A bill of rights is unnecessary because
      • State constitutions already have bills of rights.
      • People have natural rights, which don’t need to be enumerated
      • Rights are obvious.  Noah Webster (who was not at the convention) suggested that any list of rights should include:
        • “that Congress shall never restrain any inhabitant from eating or drinking, at seasonable times, or prevent his lying on his left side, in a long winter’s night, or even on his back, when he is fatigued by lying on his right.” (Miracle at Philadelphia, page 246)
    • A bill of rights is impossible because
      • You can’t list all the rights of individuals.  Any bill of rights would necessarily be incomplete.
    • Alexander Hamilton, Federalist, no. 84, 575–81
      • “I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”
        • [Suppose the Constitution were to guarantee a right to free speech. It sounds like Hamilton believes this would suggest that the federal government has an implied power to restrict free speech.]
  • Other attendees regarded a bill of rights as essential: James Madison, Elbridge Gerry, George Mason, and Richard Henry Lee.  The last three refused to sign the Constitution on this account.

Problem of Unenumerated Rights

  • The Ninth Amendment implies there are rights not enumerated in the Constitution
  • Unenumerated rights have to be established by the Supreme Court, for example:
    • the right of married and unmarried couples to use contraception
      • Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972)
    • the right of interracial couples to marry
      • Loving v. Virginia (1967)
    • the right of parents to send their children to private school
      • Pierce v. Society of Sisters (1925)
    • the right to same-sex sexual intimacy
      • Lawrence v. Texas (2003)
  • But Supreme Court justices have a fundamental disagreement about what qualifies as an unenumerated right.
    • In Roe v Wade the justices ruled there was a constitutional right to privacy and abortion. 
    • In Dobbs v Jackson different justices found no such right, enabling the majorities of various state legislatures to prohibit abortion.
    • What used to be a decision made by an individual, protected by a right, is now a decision made by a democratically-elected majority.

Tyranny of the Misinformed Majority

Some Framers had a dim view of the majority
  • From Madison’s Notes on the May 31 debate at the Constitutional Convention concerning whether the members of the House should be elected by the people or chosen by State Legislatures:
    • Roger Sherman opposed the election by the people, insisting that it ought to be by the State Legislatures. The people he said, immediately should have as little to do as may be about the Government. They want [lack] information and are constantly liable to be misled.
    • Elbridge Gerry said that the evils we experience flow from the excess of democracy. The people do not want [lack] virtue, but are the dupes of pretended patriots.
    • Pierce Butler thought an election by the people an impracticable mode.
  • Alexander Hamilton, from his June 18 speech at the Convention, per Robert Yates’s Notes
    • All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government. They will check the unsteadiness of the second, and as they cannot receive any advantage by a change, they therefore will ever maintain good government.
How the Framers sought to protect democracy from the majority
  1. By restricting suffrage:
    • Suffrage was restricted to white male landowners.
  2. By minimizing direct popular vote:
    • The House was elected by the people.
      • “The House of Representatives shall be composed of members chosen every second year by the people of the several states.”
    • But the Senate was not.
      • “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.”
    • Neither were the President and Vice-President
      • “The President and Vice President are elected by electors, appointed by each state “in such Manner as the Legislature thereof may direct.“
The country evolved in a different direction
  1. The country expanded suffrage over the centuries.
  2. It also made electoral systems more democratic:
    • Senate
      • Seventeenth Amendment (1913) :The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.
    • Electoral College
      • By 1832, only South Carolina selected electors by legislature vote.
      • Since 1864, electors in every state have been chosen based on the popular vote.
    • View Democratization of Electoral Systems
  3. The country also adopted Jefferson’s idea of public education.

Madison’s Argument that the Tyranny of the Majority is Unlikely

  • In Federalist 51 Madison notes the importance of guarding against the tyranny of the majority:
    • “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.”
  • He then says there are are only two means of protection.
    • “There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.”
  • The first he says provides only a “precarious security.
  • The second he says makes the tyranny of the majority in the US highly unlikely because American society has so many “parts, interests, and classes of citizens.”
    • “The second method [of protecting against the tyranny of the majority] will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”
    • “In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.”
  • Madison compares the United States to Rhode Island where, since the “parts, interests, and classes of citizens” are fewer, tyranny of the majority is more likely. For example (not Madison’s), a group dedicated to the prohibition of tattoos would have better luck with state governments than at the federal level. (What about a group that wants to prohibit intoxicating liquors?)
  • Thus, for Madison in Federalist 51, the only way of guarding against the tyranny of the majority is his second method. Since “there are two methods,” the implication is that there’s no need for a Bill of Rights to protect against the majority.

Protecting Democracy from the Abuse of Power

Abusing Power

  • Politicians and political parties seek power, which they get by winning elections.  Once they gain power they want to keep it.  The risk for democracy is that they’ll abuse their power to keep themselves in office. 
  • There are many things antidemocratic politicians and parties can do.

Framers’ Safeguards

Separation of Powers
  • In the The Spirit of Laws (1758), Montesquieu proposed distributing the power of government into three separate and independent branches: the Executive, the Legislature, and the Judiciary. It would be the “end of liberty,” he warns, if the same person controlled all three branches:
    • “There would be an end of everything, were the same man, or the same body whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.”  (Chapter 6)
  • Thus the different branches of government must be run by different people.
  • In Federalist No 51 Madison notes that the US not only has separate branches of government but also separate governments — federal government and the states.
    • “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
  • By contrast, parliamentary systems have no division of power between the executive and the legislature, since parliament elects the prime minister.
Checks and Balances
  • In both the US and UK the powers of the judiciary and legislature are separate. But there’s a key difference. The US Supreme Court has the power to render laws enacted by the legislature null and void. The UK Supreme Court has no such power (Wikipedia).
  • In Israel there’s currently a move to strip its Supreme Court’s power to nullify laws.
  • Thus branches of government need not only to be separate, but also to have the power to limit the power of the other branches.  As Montesquieu succinctly put it in Chapter 5 of The Spirit of Laws.
    • “To prevent the abuse of power, it is necessary that by the very disposition of things power should be a check to power.”
  • John Adams talked about balancing the powers.
    • “It is by balancing each of these powers against the other two, that the efforts in human nature toward tyranny can alone be checked and restrained, and any degree of freedom preserved in the constitution.” (Letter to Richard Henry Lee)
  • Examples of checks in US:
    • Checks on Congress
      • The Supreme Court can render legislation null and void, per Madison v Marbury.
      • The President can veto legislation
      • The House and Senate must be in agreement to pass legislation.
    • Checks on the Executive
      • Congress can override a presidential veto, by a vote of a supermajority
      • Executive appointments require the consent of Senate
    • Checks on the Judiciary
      • Members of the Judicial Branch are appointed by the President and confirmed by the Senate.
      • Congress establishes the organization of the federal judicial system and the size of the Supreme Court.
      • Congress initiates amendments, perhaps reversing decisions of the Supreme Court
    • Checks on the both the Judiciary and Executive
      • Congress has the power of oversight and investigation
      • Congress can impeach members of the executive and judicial branches, by a vote of a supermajority

The Problem with the Framers’ Safeguards: Political Parties

  • The Framers divided the federal government into separate branches to make it difficult for a tyrant to concentrate power. 
  • In Federalist 47 James Madison wrote:
    • “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
  • The Achilles’ heel of the separation of powers is the reality of political parties.  A political party that holds the presidency, the Senate, and the House and who’s appointed like-minded judges is thus, per Madison, a threat to democracy.
  • Indeed, the Framers viewed “factions” as a danger to democracy.
    • Alexander Hamilton regarded parties as “the most fatal disease”. 
    • John Adams feared that “a division of the republic into two great parties… is to be dreaded as the great political evil.” 
    • In his Farewell Address Washington warned that the fighting between political parties “gradually incline[s] the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.”
  • A political party can not only bypass the separation of powers but can also render checks and balances irrelevant.  For a party in control of the executive and both chambers of congress, for example, these checks are meaningless:
    • The President can veto legislation
    • Congress can override a presidential veto, by a vote of a supermajority
    • Executive appointments require the consent of Senate
    • Members of the Judicial Branch are appointed by the President and confirmed by the Senate.
  • One of the primary checks on a tyrannical political party is ironically opposing political parties.

Proposals for Protecting and Expanding Democracy

  • Easier Voting
    • Establish same-day registration, online registration, and universal automatic voter registration (AVR)
    • Expand early voting to at least 15 days
    • Make election day a National Election Holiday, perhaps changing it to Veterans Day
    • Provide enough polling places and keep them open long enough to prevent long lines
    • Provide voting by mail to everyone
    • Use simple, clear, standardized ballots
  • Elections
    • Ban attempts to hinder or prevent another person from registering to vote.
    • Enable judicial review of the vote-counting process
    • Increase penalties for election manipulation or subversion
    • Prevent partisan takeovers of election administration
    • Prohibit apparent conflicts of interest on the part of chief state election officials, such as elected secretaries of state, who are either on the ballot or otherwise participating in an election they are also administering.
    • Protect election officials
    • Provide chain-of-custody protections for ballots, other election records, and election equipment
    • Require paper ballots.
    • Require that sitting presidents, vice presidents, and major-party candidates for those offices disclose their tax returns.
    • Upgrade and secure voting infrastructure
  • Electoral Systems
    • Amend the 1967 law that mandates single-member districts for the House, so that states have the option to use multi-member districts on the condition that they adopt a non-winner-take-all election model.
    • Replace the Electoral College with direct election of the president by a national popular vote, either by amending the Constitution or adopting the National Popular Vote (NPV)
    • Replace winner-take-all elections with more proportional systems of representation
    • Substantially enlarge the House of Representatives through federal legislation to make it and the Electoral College more representative of the nation’s population.
    • Use ranked-choice voting in presidential, congressional, and state elections.
      • Use Ranked Choice Voting for elections for a single office, e.g president, governor, mayor
      • Use Proportional Ranked Choice Voting for elections for an assembly, e.g. legislatures, city councils, school boards
        • For large assemblies such as the House of Representatives, Proportional RCV should be used with multi-member districts.
      • View Page Ranked Choice Voting
  • Gerrymandering
    • Establish independent commissions to oversee the redistricting process
    • Make the process transparent
    • Strengthen requirements for district compactness
  • Suffrage
    • Restore federal and state voting rights to citizens with felony convictions.
  • Supreme Court
    • Establish, through federal legislation, eighteen-year terms for Supreme Court justices with appointments staggered such that one nomination comes up during each term of Congress
  • Voter Suppression
    • Protect against deceptive election practices
    • Protect eligible voters from improper purges of the voter rolls
      • For example, prohibiting voter caging, the practice of sending mail to people on the voter rolls, compiling a list of the mail that is returned undelivered, and using that list to purge or challenge voters’ registrations. 
    • Update the Voting Rights Act, establishing new criteria for determining which states and political subdivisions must obtain preclearance before changes to voting practices in these areas may take effect.

View Page Democracy Advocacy Groups

Preventing Abuse of the Electoral Count Act

Electoral Count Reform in the $1.7 Trillion Spending Bill
  • Overhauling the Electoral Count Act NYT
    • The $1.7 Trillion Spending Bill includes an overhaul of the 135-year-old Electoral Count Act that was a year in the making after supporters of Mr. Trump sought to exploit ambiguities in the law to disrupt the traditionally ceremonial counting of the presidential electoral ballots on Jan. 6, 2021.
    • Under the measure drafted by a bipartisan coalition led by Senators Susan Collins, Joe Manchin, the role of the vice president is defined as strictly ceremonial after Mr. Trump sought unsuccessfully to persuade Vice President Mike Pence to reject electoral votes won by Mr. Biden. The measure also raises the threshold for lodging an objection to a state’s electoral votes from a single member of the House and the Senate to 20 percent of both chambers.
    • The bill is a rare one that was sponsored by both Senator Chuck Schumer, Democrat of New York and the majority leader, and Senator Mitch McConnell, Republican of Kentucky and the minority leader.
Electoral Count Act of 1887
  • Disputed Election of 1876
    • britannica.com/event/United-States-presidential-election-of-1876
      • Democrat Samuel J. Tilden won 184 electoral votes (one shy of the majority needed to win the election) to Rutherford B. Hayes’s 165. Electoral votes of three states (Florida, Louisiana, and South Carolina) were in doubt.
      • Congress created an Electoral Commission, which by early March 1877 had resolved all the disputed electoral votes in favor of Hayes, giving him a 185–184 electoral college victory.
  • The Electoral Count Act of 1887
    • To prevent disputed elections like that of 1876, Congress passed the Electoral Count Act of 1887, which elaborated the procedures set out in the Constitution for counting electoral votes.
  • The Congressional Research Service explains the procedures in
    • Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress  CRS
  • But the Electoral Count Act of 1887 is full of holes.
    • The 1887 Law Putting American Democracy at Risk NYT
      • The law itself is a morass of archaic and confusing language. One especially baffling sentence in Section 15 — which lays out what is meant to happen when Congress counts the votes on Jan. 6 — is 275 words long and contains 21 commas and two semicolons.
      • Few have studied the Electoral Count Act more obsessively than Matthew Seligman, a fellow at Yale Law School.
      • In an exhaustive 100-page paper, he walked through nearly every combination of scenarios for how the law could be abused by partisans bent on stretching its boundaries to the max. And what he discovered shocked him.
        • Disputed Presidential Elections and the Collapse of Constitutional Norms  SSRN
      • He found, for instance, that in nine of the 34 presidential elections since 1887, “the losing party could have reversed the results of the presidential election and the party that won legitimately would have been powerless to stop it.”
    • A leading historian of U.S. democracy issues an urgent warning, Greg Sargent, WaPo
      • “It’s become a lot easier to envision that in the last month,” Alexander Keyssar, the leading historian of U.S. democracy, told me. “I find this to be very worrisome — very disturbing.”
      • This is what Keyssar sees as “very disturbing.” In a future close election, what is to stop a Republican-controlled Senate and House from refusing to count a victorious Democratic presidential candidate’s electors from numerous close states?
      • In that scenario, one or more friendly GOP state legislatures might send alternate electors to Congress, which it might count. That didn’t happen this time, but Trump and many Republicans called for it to happen, and at least one legislature wavered.
      • Who’s to say it won’t happen in a future scenario where one or more states are decided by a few hundred votes, making it easier to claim the true voting outcome cannot be known, justifying alternate electors?
  • On July 20, 2022, a bipartisan group of 16 Senators introduced the Electoral Count Reform Act (ECRA).
    • Electoral Count Reform and Presidential Transition Improvement Act of 2022 (S.4573) Congress.gov
  • The bill that could make it harder to overturn an election Jul 2022  Vox
    • The first section is the Electoral Count Reform Act, which would do the following:
      • Specify that the vice president’s role is purely ceremonial:
        • Although Pence refused to follow Trump’s plan, the bill would ensure that no future vice president would have any leeway to try to execute a similar proposal. It clarifies that the vice president “does not have any power to solely determine, accept, reject, or otherwise adjudicate disputes over electors.”
      • Increase the number of lawmakers required to register objections to a state’s results:
        • Currently, just one senator and one representative need to file an objection for it to receive a vote in both chambers. The legislation would increase this threshold to one-fifth of members in both the House and the Senate, respectively. This is intended to ensure that any objections are backed by a broader swath of lawmakers.
      • Designate the governor as the only person who can submit a state’s electors:
        • To prevent states from trying to submit competing slates of electors, the legislation notes the governor of a state is the only person able to designate the final results sent to Congress. This is intended to address a scenario in which different government officials try to push different slates: if a state’s secretary of state attempted to submit a different outcome than the governor, for example. In 2020, some Republican leaders in different states sought to offer up alternate slates of electors that declared Trump the winner.
      • Clarifies law to ensure that state lawmakers can’t overturn a state’s popular vote:
        • Because of how ambiguous the language is in the current law, Trump had previously argued that it gives state legislatures the room to override a state’s popular vote if they supported a different candidate. The bill tries to close a loophole that could be interpreted as giving them that power.
    • The second section is the Presidential Transition Improvement Act, which would guarantee transition funding to both candidates in the event that there’s uncertainty about the election.
      • After the 2020 election, there were members of different federal agencies who declined to provide Biden and his new administration with transition resources because of the unfounded claims Trump had raised about the election outcome. This legislation would require federal agencies to provide resources to both candidates in the event that there were questions about who won an election.
  • The Electoral Count Act must be fixed. A new proposal doesn’t go far enough. Aug 2022 Laurence H. Tribe, Erwin Chemerinsky and Dennis Aftergut WaPo
    • Flaws
      • Governor as “conclusive” certifying authority.
        • The proposal addresses 2020’s “fake elector” scheme by identifying the state’s governor as the sole official with power to certify the electoral slate and making clear that any slate not certified by the governor is void. But the proposal creates the potential for chaos when it states that a governor’s certification is “conclusive,” and then, in seeming contradiction, provides for judicial review and congressional objections. A governor’s certification helps, but to deal with the danger of rogue governors, such certification should be clearly subject to challenge if it undermines the people’s vote.
      • Period for judicial review.
        • The six-day period provided for judicial review of disputes over certification is so short as to make meaningful review a mirage. That problem can be easily addressed by having Congress push the date for final state certification of electors — the “safe harbor” date — from mid- to late-December and have the electoral college meet closer to the Jan. 6 date on which the certified votes are formally counted in Congress.
      • Number of necessary objectors.
        • Under the 1887 law, it takes only one objector in the House and one in the Senate to bring the counting process to a halt and require congressional deliberation. The proposal moves the threshold from a single objector in each chamber to 20 percent. But recall that 139 Republican House members, nearly one-third, objected to certifying Joe Biden’s election. Twenty percent is not enough to avoid needless debate and should be increased to at least 33 percent.
      • Basis for objections.
        • Whatever the necessary percentage, the proposal also falls short in allowing members of Congress to object on the basis that a state elector’s vote is not “regularly given,” a phrase carried over from the 1887 law. What it means for a vote to be “irregularly” given is not defined and remains mysterious. At the very least, Congress must scrap any objection mechanism that allows “election-denying” members, however numerous, to cause politically motivated confusion.
      • Role of vice president.
        • Because the Constitution assigns the vice president, presiding over the joint meeting of Congress, a purely ceremonial role, the proposal specifies that the vice president has no authority to “solely determine, accept, reject, or otherwise adjudicate or resolve disputes” over electors. But this language curiously fails to exclude an imagined authority by a rogue vice president to “delay” certification. Delay was, after all, Trump’s final unlawful pitch to his vice president, Mike Pence.
      • Reason for postponing election day.
        • Under the proposal, only “extraordinary and catastrophic” events will allow a state to extend election day. This leaves too much latitude to state officials. There should at least be an illustrative list of examples such as hurricanes or cyberattacks.
      • Timing of changes in state law.
        • The biggest potential loophole might be the seemingly innocuous provision that “the laws of the State enacted prior to election day” are decisive when it comes to the legality of a state’s certification of electors.
        • This is a well-intended effort to prevent any state legislature from changing the rules after voting concludes — exactly what Trump, his lawyers and their allies sought to do by meeting with state legislators after the election was over. But as drafted, the bill’s apparent intent would be easy to circumvent. An election-denying majority in a battleground state could adopt a law before November 2024 that might empower the legislature or secretary of state to award electors in a manner inconsistent with the popular vote. Eliminating that way of defying the people’s will is imperative.
  • The ECA reform bill has serious problems. Here’s how to fix them.  Jennifer Rubin WaPo
    • Norman Eisen outlined four significant changes to the bill.
      • First, the proposal specifies that states would only be able to delay an election due to “extraordinary and catastrophic events.” Eisen argues that language is open to abuse and must be tightened to “avoid manipulation by the election denying officials now running to take control of the electoral process.” (There are dozens of candidates around the country running for governor, attorney general or secretary of state who would fall into this category.)
      • Second, the bill proposes a six-day window to resolve legal disputes over a state’s election result, but this is plainly insufficient. If courts are to render a dispositive verdict on the validity of electors, they would need more time (even with expedited appeal to the Supreme Court).
      • Third, the proposal does nothing to clarify what grounds a member of Congress can object to electoral votes. It states they may do so only if the electors are not “lawfully certified” or “regularly given.” These phrases are still thoroughly vague and could lead to the same sort of shenanigans Republicans attempted when they raised spurious objections to the 2020 electors.
      • Fourth, there are other confusing or contradictory aspects of the rules governing when members can object to electors. Eisen explains, for example, that the bill still refers to the electoral slates as “purported certificates,” which re-injects the same uncertainly that Trump and John Eastman sought to use to challenge certificates in 2020.
    • Other election gurus argue the reform bill’s proposed threshold for objecting to electoral votes is too low. The current statute requires one member from each chamber to object, whereas the reform bill would raise that to 20 percent of each chamber. Given how many MAGA lawmakers now sit in Congress, it’s far better to set the bar at 35 or 40 percent rather than 20.
    • Other scholars have pointed to a fundamental inconsistency with one of the ECA reforms. The proposal seeks to deem the governors’ certification as “conclusive,” but then provides for a federal court review, also intended to create finality. This is followed by the process for members of Congress to raise objections. So who has the last say? Governors, the courts or Congress?
    • And then there are those alarmed by the possibility that a clever state legislature can still change its election rules after voting takes place if it puts in place a “trigger” that it can activate at will to change the votes. As law professors Laurence H. Tribe, Erwin Chemerinsky and Dennis Aftergut recently explained in an op-ed for The Post, “An election-denying majority in a battleground state could adopt a law before November 2024 that might empower the legislature or secretary of state to award electors in a manner inconsistent with the popular vote. Eliminating that way of defying the people’s will is imperative.”

Addenda

Robert Dahl’s Institutions of Representative Democracy

From Robert Dahl’s Entry on Democracy in the Britannica
  • Representation.
    • All major government decisions and policies are made by popularly elected officials, who are accountable to the electorate for their actions.
  • Free, fair, and frequent elections
    • Citizens may participate in such elections both as voters and as candidates
  • Freedom of expression.
    • Citizens may express themselves publicly on a broad range of politically relevant subjects without fear of punishment
  • Independent sources of information.
    • There exist sources of political information that are not under the control of the government or any single group and whose right to publish or otherwise disseminate information is protected by law; moreover, all citizens are entitled to seek out and use such sources of information.
  • Freedom of association. 
    • Citizens have the right to form and to participate in independent political organizations, including parties and interest groups.
From Robert Dahl’s Paper What Political Institutions Does Large-Scale Democracy Require?
  • Elected officials. Control over government decisions about policy is constitutionally vested in officials elected by citizens. Thus modern, large-scale democratic governments are representative
  • Free, fair and frequent elections. Elected officials are chosen in frequent and fairly conducted elections in which coercion is comparatively uncommon.
  • Freedom of expression. Citizens have a right to express themselves without danger of severe punishment on political matters broadly defined, including criticism of officials, the government, the regime, the socioeconomic order, and the prevailing ideology
  • Access to alternative sources of information. Citizens have a right to seek out alternative and independent sources of information from other citizens, experts, newspapers, magazines, books, telecommunications, and the like. Moreover, alternative sources of information actually exist that are not under the control of the government or any other single political group attempting to influence public political beliefs and attitudes, and these alternative sources are effectively protected by law
  • Associational autonomy. To achieve their various rights, including those required for the effective operation of democratic political institutions, citizens also have a right to form relatively independent associations or organizations, including independent political parties and interest groups.
  • Inclusive citizenship. No adult permanently residing in the country and subject to its laws can be denied the rights that are available to others and are necessary to the five political institutions just listed. These include the right to vote in the election of officials in free and fair elections; to run for elective office; to free expression; to form and participate in independent political organizations; to have access to independent sources of information; and rights to other liberties and opportunities that may be necessary to the effective operation of the political institutions of large-scale democracy.

‘Democracy’ or ‘Republic’

  • For James Madison, ‘democracy’ meant direct democracy, and ‘republic’ meant representative government.
    • Federalist 10
      • “… a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person…”
      • “A republic, by which I mean a government in which the scheme of representation takes place”
  • Today the word ‘democracy’ includes both direct and representative democracies.  The word ‘republic’ refers to representative democracy.
  • ‘Republic’
    • britannica.com/topic/republic-government
      • A republic is form of government in which a state is ruled by representatives of the citizen body. Modern republics are founded on the idea that sovereignty rests with the people, though who is included and excluded from the category of the people has varied across history. Because citizens do not govern the state themselves but through representatives, republics may be distinguished from direct democracy, though modern representative democracies are by and large republics.
      • The term republic may also be applied to any form of government in which the head of state is not a hereditary monarch.
    • merriam-webster.com/dictionary/republic
      • 1a(1): a government having a chief of state who is not a monarch and who in modern times is usually a president
      • 1b(1): a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law
  • In Democracy in America (1840) Alexis de Tocqueville refers to the United States as a democratic republic.
    • “Until now, a great democratic republic has never been seen. It would do injury to republics to call the oligarchy that reigned over France in 1793 by this name. The United States alone presents this new spectacle.”
  • The U.S. Is Both a Republic and a Democracy, Eugene Volokh, The Volokh Conspiracy
    • I often hear people argue (often quite militantly) that the United States is a republic, not a democracy. But that’s a false dichotomy.
      • A common definition of “republic” is, to quote the American Heritage Dictionary, “A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them”—we are that.
      • A common definition of “democracy” is, “Government by the people, exercised either directly or through elected representatives” (AHD)—we are that, too.
    • And the same two meanings of “democracy” (sometimes direct democracy, sometimes popular self-government more generally) existed at the founding of the republic as well. Some framing-era commentators made arguments that distinguished “democracy” and “republic”; see, for instance, the Federalist (No. 10), as well as other numbers of the Federalist papers. But even in that era, “representative democracy” was understood as a form of democracy, alongside “pure democracy”:
    • Tucker’s Blackstone likewise uses “democracy” to describe a representative democracy, even when the qualifier “representative” is omitted.
  • ‘America Is a Republic, Not a Democracy’ Is a Dangerous—And Wrong—Argument, George Thomas Atlantic
    • George Thomas is the Wohlford Professor of American Political Institutions at Claremont McKenna College
    • Dependent on a minority of the population to hold national power, Republicans such as Senator Mike Lee of Utah have taken to reminding the public that “we’re not a democracy.”
    • The founding generation was deeply skeptical of what it called “pure” democracy and defended the American experiment as “wholly republican.” To take this as a rejection of democracy misses how the idea of government by the people, including both a democracy and a republic, was understood when the Constitution was drafted and ratified. It misses, too, how we understand the idea of democracy today
    • When founding thinkers such as James Madison spoke of democracy, they were usually referring to direct democracy, what Madison frequently labeled “pure” democracy. Madison made the distinction between a republic and a direct democracy exquisitely clear in “Federalist No. 14”:
      • “In a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.”
    • Both a democracy and a republic were popular forms of government: Each drew its legitimacy from the people and depended on rule by the people. The crucial difference was that a republic relied on representation, while in a “pure” democracy, the people represented themselves.
    • The history of democracy as grasped by the Founders, drawn largely from the ancient world, revealed that overbearing majorities could all too easily lend themselves to mob rule, dominating minorities and trampling individual rights. Democracy was also susceptible to demagogues—men of “factious tempers” and “sinister designs,” as Madison put it in “Federalist No. 10”—who relied on “vicious arts” to betray the interests of the people. Madison nevertheless sought to defend popular government—the rule of the many—rather than retreat to the rule of the few.
    • American constitutional design can best be understood as an effort to establish a sober form of democracy. It did so by embracing representation, the separation of powers, checks and balances, and the protection of individual rights—all concepts that were unknown in the ancient world where democracy had earned its poor reputation.
    • In “Federalist No. 10” and “Federalist No. 51,” the seminal papers, Madison argued that a large republic with a diversity of interests capped by the separation of powers and checks and balances would help provide the solution to the ills of popular government. In a large and diverse society, populist passions are likely to dissipate, as no single group can easily dominate. If such intemperate passions come from a minority of the population, the “republican principle,” by which Madison meant majority rule, will allow the defeat of “sinister views by regular vote.” More problematic are passionate groups that come together as a majority. The large republic with a diversity of interests makes this unlikely, particularly when its separation of powers works to filter and tame such passions by incentivizing the development of complex democratic majorities:
      • “In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.”
  • James Madison, Draft of a letter 1834
    • “the vital principle of republican government is the lex majoris partis , the will of the majority”