It’s Time for the Most Aggressive Expansion of Democracy in Modern American History

Let’s be absolutely clear what is at stake in this election.

Two words: Minority Rule.

The core justification of democracy is the majority rules. The people decide. But we are now reaching a structural crisis of legitimacy for our institutions: Every branch of government is increasingly at the whim of the minority, rather than the majority.

The Executive Branch:

• A Republican President has won the popular vote once in the last 28 years. Despite this, we have had almost twelve years of Republican Presidents.
• The Electoral College is creating a growing and dangerous gulf between the will of the majority and the election of our Presidents. Nate Silver has pointed out how Democrats have to win the popular vote by greater and greater margins for it to translate into the electoral college, which has a structural Republican bias based on over-representation of red states. For example, these are the chances of a Biden Electoral college win if he wins the popular vote by X points:

• Let that sink in: A Democratic candidate who wins a bare majority of the American public has only a 6% chance of becoming President. And a Democratic candidate who wins millions more voters has roughly a 50% chance.

The Legislative Branch:

• The Senate is becoming more and more unrepresentative of the country at large. We are at the point where states composing a mere 17% of the population could command a majority in the Senate. A voter in Wyoming has roughly 40 times the power of a voter in California in the Senate’s upper chamber. In order to win a majority in the Senate there are estimates Democrats need to win the popular vote by 6–7%. To win a supermajority, they would need to win the popular vote by 19%. As a result, the upper chamber is becoming a kill-switch for ideas that are broadly popular with the American people — because the Senate is not representative of the will of the larger public.
• The House of Representatives actually struggles with a similar dynamic, albeit less acutely. Because of gerrymandering in the drawing of electoral districts, politicians in this country “choose their voters.” Because of the “one person, one vote” Constitutional principle (which is now at risk), the House has been more reflective of the popular will, but the body still faces major structural barriers to having the chamber reflect the popular will. This is why a historic wave of turnout in 2018 only translated into a modest majority in the lower House for the Democratic party.

The Judicial Branch:

• 4 of the 5 Republican appointed Justices were appointed by a President who initially lost the popular vote. If President Trump rams through a replacement for RGB, then it will be 5 out of 6. This is creating a glaring disconnect between the judicial philosophy of the Supreme Court and the American public. And when you couple that with the high Court’s historic willingness to strike down legislation and its prior precedents, you have a growing tendency of an unelected branch that is not reflective of the will of the larger public to nullify laws passed with historic majorities — such as the Voting Rights Act and the Affordable Care Act.

The anti-democratic structures in American democracy have come into even more stark relief after the death of Justice Ruth Bader Ginsburg. There are the obvious implications, which is the Supreme Court undoing precedents that are entrenched in American society and popular with the broader public. The constitutional right to choose in Roe v. Wade, for example, is supported by 77% of the American public. There is the danger of the Supreme Court upholding a recent 5th Circuit opinion striking down the Affordable Care Act, which would lead to 20 million Americans losing their healthcare and all Americans losing pre-existing conditions protection. This would be madness in an ordinary time, but during a pandemic (in which COVID-19 is a pre-existing condition), it would be downright lethal. And as Mark Joseph Stern has pointed out, marriage equality, gun safety laws, carbon regulation, affirmative action, unions, campaign finance, and the basic structure of the administrative state are all in peril.

But in many ways the deeper danger is what a 5–3 (and likely soon to be 6–3) Supreme Court means for democracy itself. If the election is close or contested, a court divided on these lines could mean complete disaster. Experts are already worried that a “red mirage” on election day (caused by Republicans being more willing to vote in person, whereas Democrats prefer voting by mail in a pandemic), could lead to President Trump declaring victory on election day while mail ballots are still being counted. If there is a contested election result in the courts in a pivotal state like Florida (which decided the election in 2000 in Bush v. Gore), you could have a real electoral nightmare. If a district court in Biden v. Trump ruled for Trump, the 11th Circuit affirmed, and the case went to the Supreme Court…even if Chief Justice Roberts crossed party lines and voted with the court’s liberals and the Court deadlocked 4–4, the lower court ruling would hold and decide the election for Trump. Trump himself seems to recognize how much his election could count on judicial intervention, stating publicly “we’re counting” on the federal courts to declare the election night winner.

What should be done? There are two steps that will be necessary to save America from a democratic illegitimacy trap and ensure government reflects the will of the people.

1. Democrats need to leave absolutely everything on the field for 42 days through a disciplined, focused, and aggressive Get Out the Vote (GOTV) operation to deliver the most dominating election win in a generation.

2. A Biden administration and Democratic senate need to be ruthless in expanding American democracy by any means necessary.

1. Democrats need to leave absolutely everything on the field for 42 days through a disciplined, focused, and aggressive Get Out the Vote (GOTV) operation to deliver the most dominating election win in a generation.

I understand the need to grieve for Justice Ginsburg. She was a legal giant, an icon, and her loss is made more painful by its staggering political consequences. I’ve reflected on her remarkable legacy as part of that process.

But there is a line between grieving and defeatism. I have seen some friends and commentators wallowing in a kind of fatalistic, destructive hopelessness. For too many on the left, cynicism has become fashionable. At worst, this disempowering philosophy creates a kind of learned helplessness, that nothing matters or makes a difference. At best, it’s an orientation that facilitates only a begrudging and half-hearted engagement that simply does not meet the moment. Conveniently, this is exactly the attitude Authoritarians want inculcated in their opposition, which is why it is so poisonous. The other extreme of panic is not constructive either, however. It’s a cliche, but people can drown not because they can’t swim but because they panic. Whether it’s giving up in hopelessness or in fear, both philosophies become negative self-fulfilling prophecies that we absolutely cannot afford.

Brittany Packnett Cunningham described a better way: Choosing the “discipline of hope over the ease of cynicism, fortitude over fatalism, strategy and organizing as a container for our anger.” This is a time to connect to your “why,” your principles, and your history. For me personally, I think about how the opportunities I have had were only possible because of the determination of my grandparents, who came to this country fleeing authoritarian persecution in Europe to find a better life in this country. Their sacrifices made my life possible, and that brings a duty and responsibility to fight for a just and democratic future. I think about teaching American history, and the leaders who fought for that “more perfect union” despite far graver odds. I think of the courage of the heroes we lost only this last year, who overcome unthinkable adversity in the cause of justice: Congressman John Lewis, Congressman Elijah Cummings, and Justice Ruth Bader Ginsburg.

The next 43 days are an opportunity to play a historic role in shaping our national destiny. They are an opportunity to channel our anger, our sense of justice, of duty, into determined, disciplined, focused, organized, and aggressive action. To make a difference and move the ball every single day. To bite down on our mouthpiece and fight back.

And in a context of unprecedented online tools, we all have the opportunity to make a huge difference right at our fingertips. Whether it’s texting friends and family to confirm their registration, making calls to swing state voters, or making an affirmative case online for why they are voting for a Biden/Harris administration. Research has shown that undecided and infrequent voters are often significantly more persuaded by affirmative arguments in favor of a Biden administration than simply highlighting how bad Donald Trump is. I certainly point out the latter — especially behavior that threatens the integrity of our democracy — but the reality is the most powerful case we can make is explaining what we are voting for rather than simply against. If Biden was not your preference in the primary it’s completely understandable that will be an adjustment, but if you want to achieve an outcome this is the advocacy approach most likely to achieve it. And you can be proud in doing so: the Biden/Harris ticket is running on the most progressive platform since FDR, and has a historic opportunity to make transformational, structural change. And for young people in particular, the Biden/Harris plans for student loan reform and climate change are absolutely critical for our generation.

2. A Biden/Harris administration and Democratic Senate need to be ruthless in expanding American democracy by any means necessary.

The Trump administration’s voter suppression efforts and the President’s willingness to question the election results makes an absolute wave of an election necessary but not sufficient for defeating minority rule. The next step is a ruthless expansion of American democracy by any every means necessary. Adam Jentlenson, former deputy to Majority Leader Reid, recently described the procedural hardball the Democrats need to take immediately.

As I have written elsewhere, too often in American politics has been asymmetric constitutional hardball. Democrats too often bring a knife to a gun fight, and the reality is weakness is provocative. In order to address the structural and legitimacy crisis of minority rule, a Democratic Senate majority will need to move forward with a historic, comprehensive, and aggressive program of democracy protection and expansion. That means ending the filibuster, which is an abused procedural relic in a body already predisposed against translating the will of the American majority into concrete policy. They need to move forward with statehood for D.C. and Puerto Rico, which have been too long denied their fair representation and have suffered serious public policy consequences as a result. Ian Millhiser has laid out 11 other fundamental structural reforms needed to empower democratic majorities and end discriminatory voter suppression, including:

• Stopping voting rights violations before they happen
• Eliminating registration as an obstacle
• Expanding early voting and making election day a national holiday
• Public funding for elections and a voter tax credit
• Neutralizing the electoral college through a National Popular Vote Compact
• Ending partisan gerrymandering
• Limiting the ability of conservative judges from sabotaging voter reforms.

In addition, the Senate will need to be prepared to seriously consider expanding the Supreme Court as well. As Mark Joseph Stern has highlighted, Senate Republicans “established new rules: The party in power can use any tool at its disposal to seize the Supreme Court, within explicit constitutional limits.” When they refused to even consider President Obama’s nominee, Merrick Garland, because it was an election year with 269 days out, they changed the composition of the court to eight Justices for months. They have now violated the precedent they set by nominating a new Justice with only 44 days to an election. It is beyond hypocrisy and lack of fair play; it is constitutional asymmetric warfare, and Democrats cannot unilaterally disarm. They will need to be prepared to respond proportionally, and nothing can be off the table. The composition of the Court has changed seven times, and there are a host of plans for reforming and expanding SCOTUS from CAP, Take Back the Court, the Brennan Center for Justice, and noted law professors.

Go to war for democracy. 41 days.

RESOURCES TO MAKE THE DIFFERENCE

1) WIN THE ELECTION

The most fundamental and important step we can take is win the Presidency so it is Joe Biden filling Supreme Court vacancies.

There are several steps you can take on that front.

1. Donate. This election will be a game of inches and every dollar counts.
2. Make Calls to Swing State Voters. I am making calls every Friday with a group of friends and you are welcome to join us. The site includes trainings and the interface is really straightforward. Data science shows these calls increase voter turnout by an estimated 3.5%. For context, Trump won Florida and Pennsylvania by just over 1%.
3. Text Voters. If you are not as comfortable calling (which I recommend), you can still text voters — which is a helpful way of getting them involved.
4. Get involved in Voter Protection. This is going to be a critical effort with all the voter suppression strategies the GOP is engaging in.
5. Sign up to volunteer for the campaign for several days in the last critical stretch.
6. Be a pollworker! Many pollworkers are older and at risk during the pandemic.
7. Advocate for Biden / Harris on social media. Many people don’t realize how many people see your posts online, which can often get into the thousands. Research has shown undecided and infrequent voters generally are more persuaded by articles and arguments for why you are voting for Biden/Harris rather than why you are against Trump.

2) FLIP THE SENATE

We are going to need a Democrat controlled Senate to confirm Supreme Court vacancies and institute even more structural reforms to make sure majorities can govern in this country. The best way to do so is the donate to Flip the Senate. As it stands, these are the most competitive Senate races. So if you want to donate individually, donate to John Hickenlooper, Mark Kelly, Sarah Gideon, and Cal Cunningham. We need four seats to flip the Senate.

3) VOTE

Make sure you are registered, check early voting timelines in your state, and request a mail ballot if you want to vote remotely and the process isn’t automatic for your state (which is typically the case).

And make sure you are reaching out to all your friends and family to confirm they are voting as well.

The darker it gets the harder we fight. 42 days.