The Brooklyn Rail

OCT 2020

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OCT 2020 Issue

Vote Now or Forever Hold Your Peace

Erin Geiger Smith
Thank You for Voting
(HarperCollins Publishers, 2020)
Kim Wehle
What You Need to Know About Voting—and Why
(HarperCollins Publishers, 2020)

When I teach the Constitution and Founding period of United States history to high school juniors, I ask the students to answer two questions at the end of the unit. Is the original US Constitution more about the protection of liberty or the protection of property? And, borrowing from the political scientist Robert A. Dahl, how democratic is the US Constitution? In answering the first question, students tend to focus on whose liberty or property we’re talking about. And in answering the second one, students quickly recognize that from its very formation as a nation-state, America has had an ambivalent relationship with democracy. In answering both questions, my students are keen enough to recognize the pronounced gap between Enlightenment ideals and liberal philosophy that infuse the nation’s founding on the one hand, and the self-interest of the framers and less than savory historical reality on the other.

At the core of both rights’ protection and democratic self-governance in a large republic such as the United States is the idea that the members of the polity get to choose the people who make public decisions on their behalf and have a voice in those decisions. They can let their feelings be known to their representatives and always have the power to throw them out if those decision makers stray from the righteous path. Voting thus must be at the center of maintaining a system of democratic self-governance. In the Federalist Papers, either Madison or Hamilton (the authorship of Federalist No. 52 remains the subject of historical dispute) proclaimed that “[t]he definition of the right of suffrage is very justly regarded as a fundamental article of republican government.” Yet from the very beginning of the Republic, voting in America has been treated more frequently as a guarded prerogative by those in power rather than a universal right and obligation of all members of the polity. Those same founders left all rules regarding elections up to the individual states, resulting in the franchise being restricted to white males and mostly to owners of property. It took nearly a century for Black Americans to be granted the right to vote and then nearly another 100 to see that right actually enforced. It took close to 150 years for women to win the right to vote. And today the combined forces of voter suppression, voter roll purges, onerous registration requirements, ex-felon disenfranchisement, foreign interference, deliberate and widespread disinformation about voting, and anemic voter turnout are putting the franchise in peril and democracy in grave danger. In the face of a leader with fascist tendencies and a kleptocratic ensemble running the federal government, a failure to expand participation and insure that our election systems function fairly, efficiently, and freely will turn America into a country most of us would rather exit.

Two recent books by a pair of lawyer/journalists attempt to help the general public understand our convoluted state-specific system of voting, the barriers to real democratic voice, and what we need to do to increase voter participation. They are both useful almanacs for how voting works, how to actually vote, and the barriers placed inhibiting participation. Erin Geiger Smith’s Thank You for Voting begins with a quote from Franklin Roosevelt: “The United States has a voting problem: not enough of us do it.” Geiger Smith’s answer is to be a cheerleader for voting: voting is really important so learn how to vote, go vote, and recruit the people you are closest with to come join you. Smith recognizes that American history is replete with efforts to make voting difficult, if not impossible, for the majority of Americans. While she argues that the arc of American history has made us more democratic, those gains did not come easily. It took the Civil War, military occupation, street violence, innumerable lawsuits, and organized resistance and political action to expand the franchise. Now, in the face of cynical ploys to suppress access to the poll and disenfranchise people of color and the poor by a political party in danger of losing majoritarian democratic control, Geiger Smith urges more efforts to make the act of voting chic. “I Voted” stickers, Yara Shahidi’s We Vote Next Summit, the efforts of the Parkland shooting survivors, and former NFL receiver Anquan Boldin’s exhortations at Florida State University are presented as important and noble mechanisms towards increasing voter participation.

Sadly, marketing campaigns and peer nudges are inadequate in and of themselves to overturn the entrenched commitment of those who hold political power to deny the voice of the marginalized. The catch-22 is that making voting easier requires broader voter participation in order to remove elected officials who make it difficult to broaden voter participation. But that’s hard to do when voting is made exceedingly difficult or you aren’t allowed to vote at all. In reaction to a recent expansion of the franchise in Florida when a popular referendum amended the state constitution allowing ex-felons to vote, Florida lawmakers rendered the amendment toothless by requiring all debts to be paid by ex-felons seeking to register before they could cast a ballot.

As if revanchist lawmakers aren’t obstacle enough, recent history has seen gains in ballot access stymied by a judiciary put in place by the political party trying to stem a popular tide. Thus, as Geiger Smith acknowledges, the gains of the 1965 Voting Rights Act (VRA) have been retrenched by the Supreme Court’s Shelby County v. Holder decision gutting the important state and local voting plan pre-clearance mechanism of section five of the VRA and unleashing a torrent of voter suppression measures across the country. Last year’s Rucho v. Common Cause decision saw the Supreme Court abdicate any obligation to examine partisan gerrymandering that through naked and disproportionate “packing and cracking” plans make legislative representation at state and federal levels bear no resemblance to the overall popular vote. In the infamous Citizens United v. FEC decision, corporations were held to have free speech rights under the First Amendment that enable them to spend as much money as they want to get across a political message, as long as it’s not “coordinated” with a specific candidate. That level of financial power is hard to combat by the ordinary citizen. And our Florida story ended badly when the 11th Circuit Court of Appeals upheld Florida’s financial debt gambit largely disenfranchising felons in that state. Undoing the damage done to our democratic processes requires more than just rockin’ the vote.

As pointed out repeatedly by Kim Wehle in What You Need to Know About Voting—and Why, there is no textual right to vote contained in the United States Constitution. The right to vote in America is perceived as something to be earned rather than a right that is universal. Since it is our nature to amass, entrench, and abuse power, those in power have only very reluctantly allowed those previously excluded in on the decision making. Treating voting as a privilege rather than a right makes it much easier, using such specious rationales as voter fraud, to prevent people from participating in elections. We should not be surprised then when the rules of the game make it difficult to actually vote. We should further not be surprised that the United States is 26th among Organisation for Economic Co-operation and Development (OECD) countries in voter participation.

Our voting problem is symptomatic of much broader deficits in our polity. We have a deficit of civic knowledge and participation that extends beyond the simple act of voting. Lockean freedoms and the right to own and amass limitless individual property are embedded in our national and constitutional DNA far more than Rousseau’s ideas about civic obligation and participation to form the general will. It’s why we have allowed money to so infect politics, and since Buckley v. Valeo in 1976, have treated the spending of money on politics as protected free speech. Having even the majority voice drowned out by those with the most gilded megaphone, makes voters question the point of their franchise since, as Wehle puts it, we think there are dark forces of wealth rather than popular will bossing government action. Our principal hope for an evolving communitarian ethos lies in reaction to the rampant inequality generated by the last 40 years of federal policy and the recognition through the Black Lives Matter and other movements spurred by young activists that perhaps the final reckoning of political marginalization of people of color has finally arrived. When we see “VOTE” on the jerseys of NBA stars, I would like to think a turning point of political participation has been reached. The struggle will be to maintain the moment’s staying power.

By grassroots agitation and mass protest, by litigating, and by levering the tools of the media, we need to reform our undemocratic systems and make voting largely universal. Just voting is not enough. We need our chronically underfunded schools to do a better job of imbuing young people with democratic knowledge and skills—not just by teaching and testing classic “civics,” but by fostering critical thinking, media literacy, and providing students with the civic experiences that make voting, joining community boards, writing to elected officials, and running for office second-nature habits when they become adults. We need to fight to amend the Constitution to eliminate the Electoral College and drastically change representation in the grossly malapportioned United States Senate. We need to overturn Citizens United and Shelby County through amendment and further legislation. We need to make voting a protected explicit constitutional right and subject limitations and obstacles to the strictest of scrutiny. We need to push for non-partisan redistricting commissions to tackle gerrymandering and the problem of vote dilution. If our ambivalence about democracy does not end, we are in danger of losing our democratic habits and abdicating our check on corrupt oligarchical power and the erosion of the rule of law.

The authors of these books are absolutely right. Go out and vote. But please don’t stop there.


Harry Feder

Harry Feder is a former attorney. He clerked for the Hon. Stewart G. Pollock of the Supreme Court of New Jersey.


The Brooklyn Rail

OCT 2020

All Issues