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Already Stolen: The Electoral Process and Democratic Legitimacy in the US

Shahid Buttar
Date Published: 
February 01, 2005
    The disputed results of the last two presidential races have caused many across the political spectrum to focus their attention and activism on the functioning of representative democracy in the US. But does the root of the problem lie with the Bush administration or the electoral process itself? Shahid Buttar takes a look.

Some refer to George Bush as a "polarizing" president, as if to hide the embarrassing fact that most the country considers him either incompetent or corrupt. The Bush White House is indeed belligerent, short-sighted, and profoundly threatening to many of our country's fundamental political values – including the separation of church and state, and due process of law. Yet as a movement, we have tended to ignore the legitimacy crisis pervading Bush's tenure.

In the words of Yale law professor Bruce Ackerman, the 2000 election amounted to a "constitutional coup," a blatant subversion of democratic principles. The recent 2004 election was similarly ridden with so-called "irregularities," including intimidation of minority voters by Republican goon squads, restrictive registration requirements and vote-counting processes conjured by partisan state election officials moonlighting as Republican campaign managers, and the outright theft of untraceable electronic votes.

A host of groups organized efforts to protect the integrity of the 2004 election. But even if we did allow all Americans to vote this November (which we most certainly did not), and even if we could confirm electronic vote totals feared by a prominent Republican columnist to suggest "foul play," the election was stolen long before 2004. In the wake of its illegitimacy, concerned citizens across the country have gone beyond voting, taking to the streets in non-violent protests against puppet democracy – not in Iraq, but here in the US.

But it gets worse. Even when functioning as intended, America's legitimacy as a democracy suffers on account of our electoral structure, the process by which we count votes.

Ignoring dissent

For instance, a rising chorus has called to either abolish or reform the Electoral College. While the institution's operation is fairly intricate, the major criticisms are simple. First, the College forces each state to vote as a whole – thereby ignoring any dissent within states.

Second, the Electoral College over-represents voters in states with small or rural populations, at the cost of voters in states with large or mostly urban populations. Put simply, the Electoral College allows presidential candidates to assume office without winning the popular vote.

Even mainstream voters are often shocked upon realizing the result. In 2004, since most states committed to one candidate early on, the Kerry and Bush campaigns focused almost exclusively on a small number of "swing" states that effectively decided the national election. Those states enjoyed a sort of "super-voting" status, in sharp contrast to our fundamental "one person, one vote" principle.

The 2004 presidential election suffered control not only by particular swing states, but even worse, by particular individuals within them. Swing states were identified as such precisely because their Electoral College vote remained contested; they could have gone either way. As a result, late in the campaign, voters who somehow remained undecided held the power to "swing" their states. Particular individuals in particular states thus committed the entire country – to what was essentially their whim. This does not a democracy make.

One of legal theory's most frequently recurring tensions lies between competing abstract and specific readings of any particular text. For instance, does the Equal Protection clause of the 14th Amendment, adopted in the wake of the Civil War, prohibit (a) only discrimination against African-Americans; or (b) subordination in general? The first vision of the amendment is specific, historical, and narrow; the latter is abstract, contextual, and broad. Therefore, is an election "stolen" (a) only when election officials knock voters off the rolls and throw out ballots, and judges ultimately decide the outcome; or (b) wherever the substantive outcome is rigged?

In 1964, the Supreme Court decided Reynolds v. Sims, the case later described by Chief Justice Earl Warren as the most important of his career on the bench. In narrow terms, Reynolds mandated strict equality in voting power: "one person, one vote." However, Reynolds also included a broader reading, which the Court expressly recognized as "each and every citizen['s]…inalienable right to full and effective participation in the political process…."

Despite this transformative constitutional ruling nearly half a century ago, Americans voters remain systematically disenfranchised today. Two particular, intertwined obstacles preclude "full and effective participation" in contemporary American politics: gerrymandering and political centralization. Both could be addressed by antitrust principles.

Picking constituents

Gerrymandering is the division of electoral territory by incumbent legislators. Whereas elections should allow voters to choose representatives, gerrymandering inverts the dynamic in elections for both the House, as well as many state legislatures. Today, incumbents essentially pick their constituents, by carving up territory within each state.

Section one of the Sherman Antitrust Act prohibits "horizontal collusion." In other words, it outlaws agreements among competing firms that could harm consumers. But because courts apply antitrust principles only to economic markets – not to political markets – incumbent politicians from competing political parties remain free to reach backroom deals contriving their mutual re-election.

Elections in the former Soviet Union reflect a far higher rate of participation than American elections, and ballots were actually counted. But even though the Soviet Union demonstrated more respect for procedural democracy than did the State of Florida in 2000 or 2004, the West rightfully decried Soviet elections as undemocratic and illegitimate. Why? Because, like approximately 40% of American Congressional elections contested by only one candidate, they weren't even formally competitive. Even though voters could cast a ballot, they had only one choice.

On the one hand, such anti-competitive elections are caused by gerrymandering: deals among competitors that would be illegal if affecting money, rather than votes. On the other hand, this sort of collusion is possible only where "new entrants," or other parties, are excluded.

Political centralization

That leads us to the second problem: political centralization. The seizure of our government by two particular political parties not only enables gerrymandering, but also constitutes an entirely separate – and because of its subtlety, even more insidious – violation of political antitrust principles.

America's political system has remained crystallized around two major parties since the Civil War. Consider the last time either a Democrat or Republican proposed meaningful solutions to America's massive inequalities of economic outcome and opportunity. Who last proposed shifting a portion of our bloated military budget into measures addressing our education, housing and healthcare crises?

Why have no voices proposed such apparent solutions to our growing national problems? Elections aim to create a political marketplace, in which producers (parties) offer consumers (voters) alternative products (policies) in exchange for their support (votes). With such gaping problems in our public policy, why haven't new voices stepped forward? Markets exist to aggregate preferences – but even according to their supporters, markets must be competitive to achieve that goal.

It's for precisely that reason that section two of the Sherman Act prohibits firms with market power from employing "anticompetitive means" (such as predatory pricing, for example) that undermine competition. Section two aims to ensure that results of economic competition reflect "skill, foresight, and industry," rather than merely a prior dominant position.

However although courts (at least claim to) protect consumers from anticompetitive business monopolies, they allow new entrants to political markets to be shut out of the process. The resulting electoral "choice" is little more than an illusion.

Entry barriers

Minor parties confront a litany of what economists call "barriers to entry." First, just getting on the ballot can be impossible. Second, independent and minor party candidates who overcome that hurdle remain routinely excluded from candidate debates, an "essential facility" to which businesses enjoy guaranteed access under antitrust law. Third, funding disparities allow money from elite donors to buy the major parties exclusive access to major media, while minor parties scrap together contributions from working-class citizens which pale in comparison.

Finally, because of our "first-past-the-post" voting system, a party can win 30% of the vote in every district throughout a state (in a three-way race, or even up to 49% in a two-way race), yet receive absolutely no legislative representation. As a result, millions of voters who prefer candidates outside the corporate mainstream are systematically silenced.

Setting aside their pervasive racism, the Constitution's framers both foresaw and feared this problem. In The Federalist, No. 10, James Madison prophesied that democracy in America would remain forever subject to a "tyranny of the majority," unless government and society included "a multiplicity of factions" preventing any one set of interests from monopolizing political power. Nearly one hundred years before its passage, Madison foretold and applied the Equal Protection clause of the 14th Amendment to political process regulation. Today, Madison turns in his grave.

The 2004 presidential candidates' foreign policy visions differed more in rhetoric than substance. Neither suggested immediate withdrawal from Iraq, agreeing that immediate withdrawal could spark a civil war – a dubious claim given that civil war has raged ever since the American invasion over a year ago.

Domestic policy illustrates the same artificial, contrived consensus. Measures to achieve meaningful equal educational and economic opportunity? Ending the barbaric, arbitrary, racist death penalty? Making sure all Americans have access to basic needs, like shelter, food, and medicine? Students, workers, artists, academics, activists, the poor, and other progressives regard such measures as among our highest priorities. Yet you won't hear about those issues in our political system.

Before the 2004 election cycle, in which the Internet attained prominence as a fundraising vehicle for the first time, Democrats and Republicans were funded primarily by the richest 2% of the US population. This "donor class" controlled the policies pursued by both parties. Disagreements among Republicans and Democrats have thus reflected preferences of contending factions within America's economic elite. Two particular political parties, representing overlapping sets of interests, have entrenched themselves in all branches, and at all levels, of our government.

Reshaping politics

The idea of courts intervening in politics may seem terrifying, especially in the wake of Bush v. Gore. However, courts need not mandate an intrusive solution. The Court's most legendary political process reforms – like the reapportionment mandated by Reynolds v. Sims – involved clear, "bright line" rules that achieved structural reform without investing unpredictable discretion in lower courts.

The federal judiciary could remedy the Republican / Democrat political cartel by simply imposing instant-runoff voting for single-office races (like for Mayor, or the presidency), and proportional representation for legislative races (like for Congress, or state assemblies). Both reforms enhance representation, by facilitating a broader range of political parties – without requiring continued court intervention.

Structural analysis may inspire less passion than does investigation of more immediate, overt failures of democracy. But with so many eyes focused, for the first time, on vote tampering, hacking, and suppression through intimidation and even outright disenfranchisement, we enjoy a unique moment for popular education about the wider, often-ignored structural failures of American democracy.

Regardless of their policy preferences, the vast majority of Americans do stand united behind one principle, in particular: democracy. Accordingly, the outmoded, archaic, and undemocratic elements of our political apparatus render the Bush administration not only corrupt, inept, and dangerous to human and civil rights around the globe, but also illegitimate. Under the principles on which this nation was founded, it has no authority to govern.

However no institution will announce this fact from loudspeakers, or broadcast it in campaign ads. It is – as it was before – up to We the People to protect our country's integrity by demanding legitimate government. If we leverage this unique historical opportunity to demand a more responsive electoral structure, progressives and radicals could take a giant leap toward many of their ultimate aims. Be in DC on January 20, 2005 for the Declaration of Independence, Part II.