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Under Discussion: Consent of the Governed? Obstacles to Free and Fair Elections

photograph of an "I tried to vote today" sticker

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

Addressing the House of Commons in 1947, Winston Churchill famously said, “it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.” It is not difficult to identify problems with democracy. Citizens aren’t always well informed on critical issues, so they sometimes vote in large numbers for disastrous policies and candidates. Sometimes substantial groups of people hold positions on moral issues that harm other people or violate their basic human rights. Democracy doesn’t ensure just outcomes, so it isn’t always perfect. On the other hand, democratic institutions are essential for grounding the authority and legitimacy of government. It is only when all citizens can vote in free and fair elections that government functions with the consent of the governed. Respect for democratic processes is also critical for keeping the peace among competing factions. Governments that honor democratic traditions have ways of preventing disagreements among political groups from being resolved violently.

Democracies that stifle the ability to vote or that seek to minimize the extent to which one person’s vote counts as much as any other person’s are democracies in name only. True democracies are respectful of the equal moral worth of all persons. Organizations like the National Democratic Institute and the United Nations Electoral Assistance Division have worked tirelessly to observe elections worldwide to support and strengthen democratic institutions. The hope is that their presence will contribute to elections that are fair so that authoritarian regimes are not painted with a veneer of legitimacy.

We don’t have to look abroad for examples of interference with the free functioning of democracy. If democracies respect the equal moral worth of all persons, and if government is only legitimate if it has the consent of the governed, then the early system of government in the United States was not a true democracy, since the federal government left decisions regarding who could vote up to the states. The states routinely disenfranchised women and Black people. It took constitutional amendments to change that. Even after these amendments were passed, states still had the power to pass laws regarding voting. Many states enacted poll taxes and literacy tests as prerequisites for voting. They knew that this would serve as a practical way of preventing Black people from exercising their voting rights.

We don’t have to look to history to find examples of democracy being thwarted and undermined. Our current legislators, motivated by winning elections, making money, and holding onto power, engage in all sorts of tactics to see to it that only the votes of their supporters are counted.

One of the primary methods of misrepresenting the will of the people is gerrymandering. Gerrymandering is the practice of drawing voting district lines in unnatural ways. So, for example, if members of political group A live in the city and members of political group B are drawing the districts, group B may draw the districts in such a way that any one of them captures only part of the city voters but plenty of the voters in the suburbs and rural areas, diluting the voting power of political group A. Gerrymandered districts don’t reflect the will of the people. They misrepresent the political preferences of specific communities.

Democracy is also undermined when some citizens are taxed, and yet have either no representation in Congress or fail to have proportional representation. The United States fails this test when it comes to Puerto Rico, Guam, and the District of Columbia — places populated by voting taxpayers that do not have representation in Congress. What’s more, all states have the same number of senators, regardless of their respective populations. The state of California has a population of 39.51 million people. It has two senators. The state of Wyoming has a population of 580, 000. It also has two senators. As a result, the residents of the state of Wyoming have significantly more proportional voting power than the citizens of California.

The number of representatives in the House that each state has depends on their population. The population is studied and recorded by the census, which is a survey of households conducted every ten years. For a democratic system to be free and fair, no undue burdens or significant obstacles should be placed in the way of the opportunity that each household has to fill out their census report. This year, the Commerce Department warned that completing the census on time would not be possible because of the constraints caused by the pandemic. They requested an extension. The Trump administration did not comply with this request, arguing that the data must move to the analysis phase. Not only did the administration not extend the deadline, they actually moved the deadline up. This week, the Supreme Court ruled in favor of the Trump administration. This means that the administration will have its hand in apportionment of representatives to the House, even if Trump loses the election. Civil rights groups such as the National Urban League have argued that this decision is likely to harm already disadvantaged communities.

Another significant obstacle in the path to free and fair elections is voter suppression — the practice of preventing voters from certain demographics from voting. Poll taxes and literacy tests were forms of voter suppression in our country’s early history, but those kinds of tactics have not been relegated to a bygone era. In the age of coronavirus, voters are concerned that their mail-in votes will not be counted. Nevertheless, many elected officials across the country have arbitrarily limited the number of drop-off ballot locations. For example, in Texas, republican Governor Greg Abbott issued an order to shut down dozens of ballot drop-off sites weeks before the election, opting instead for a policy that provides one drop-off site for every county, regardless of its population. The result is that Harris County, which has a population of more than 4.7 million people, has the same number of ballot drop-off boxes — one — as Rockwell County, with a population of 88 thousand. A federal appeals court recently upheld Governor Abbott’s order.

The political voices of individual human beings with interests and moral worth should be the central building blocks of democratic decision making. This isn’t possible when the interests of powerful corporations end up dwarfing the voices of the people. The Supreme Court’s opinion in Citizens United v. Federal Election Commission, which maintained that corporations are people with free speech rights that can be exercised through unlimited donations to political campaigns, made the United States a substantially less democratic country. In his dissent, Justice John Paul Stevens argued that the majority decision constituted a “rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government.”

Finally, free and fair democratic elections are undermined by lies, threats, and the intentional mass spread of misinformation. For example, President Trump has repeatedly claimed that mail-in voting will result in massive amounts of voter fraud. He blasts this message through his significant political megaphone even though there is no evidence to believe that it is true and plenty of evidence to believe that it is false. The Trump campaign is also gathering an “army” of poll watchers to go to the polls on election day, raising concerns about a chilling effect on voter participation and the possibility of voter intimidation at the polls.

The National Democratic Institute raises red flags for elections that present as democratic, but that don’t actually operate in ways that respect the will of the people. Perhaps they should keep an eye on our elections here in the United States.

Has Venezuela Become a Dictatorship?

Is Venezuela a dictatorship? The words democracy and dictatorship should be defined on a continuum. But, it should by now be clear that Venezuela is closer to the latter than to the former. Venezuela’s President Nicolas Maduro clinched power in a contested election in 2013. He promised a recount on national TV, but only hours later, he retracted. Ever since, he has claimed American imperialism is the real power standing behind opposition forces in Venezuela.

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Compulsory Voting in America

Voter turnout in America is infamous for being extraordinarily low. Consistently, between 50% to 60% of eligible voters actually turn out to vote in presidential election year; the number is even lower during midterm elections, when the election is perceived as lower stakes. The 2014 midterm elections saw a dismal turnout of 36%. In 2016, voter turnout was at a 20-year low, with 55% of the age-eligible population voting in the presidential election. This means that a very small percentage of the country actually votes for the winning presidential candidate, and/or the members of both Congressional chambers, and that nearly half the country does not participate in the selection process. Some countries have taken what appears to be a drastic approach to resolving this problem: compulsory voting.

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Reconsidering the Electoral College

In the early hours of the morning on November 9th, 2016, it became clear that Donald Trump would be the next President of the United States.  Though vote counts within many contentious states were close, he won the Electoral College handily—with Michigan still outstanding, Trump received 290 Electoral College votes and Clinton received 228.  Despite his Electoral College victory, Trump appears to have lost the popular vote.  This is the second time that this has happened in the 21st century.  In 2000, Al Gore won the popular vote while George W. Bush won the Electoral College.

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Reconciling Democracy and Incarceration

The United States tends to exhibit a great nationalistic pride in its democracy. And so generally, we assume that any U.S. citizen over the age of 18 is eligible to vote. Yet this right can be taken away permanently if one is convicted of a felony, the most common of which being drug-related. Ironically, the United States, proudly deemed the “Land of the Free,” has the highest incarceration rate in the world. Yet it still may be shocking to consider that [a]pproximately 2.5 percent of the total U.S. voting age population1 of every 40 adultsis disenfranchised due to a current or previous felony conviction.

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Three’s a Crowd: Third Parties in Presidential Debates

As the 2016 presidential election draws near, many voters will tune in to watch a series of debates between the leading candidates for the highest office in the land.  The first debate, between Democratic nominee Hillary Clinton and Republican nominee Donald Trump, took place on September 26.  These two major candidates have the distinction of having, respectively, the highest disapproval ratings in the history of candidates for the office.  

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Relying Too Much on Polls Doesn’t Serve Public

This post originally appeared in The Indy Star on August 26, 2016.

Polls in 1948 indicated Harry Truman had no chance to win the election. He ignored the ominous polls, took off on his whistle-stop tour and won the election anyway. Pollsters and pundits were shocked. Americans today would be wise to follow Truman’s lead and disregard the swarm of polls dominating the media landscape this year.

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Why The U.S. Should Embrace Instant Runoff Voting

Most Republicans don’t want Donald Trump as the nominee. Most Republicans didn’t want Trump during the primaries. He benefited from a crowded field of traditional candidates in the early primaries. The preferences of voters who voted for the third place candidates and beyond were simply lost. They had no say between the first and second place candidates.

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Freedom and the 2016 Electoral Season

‘Tis the season for politics, once again, in the United States of America. And while some surprising new topics, like the size of candidates’ hands, have cropped up in this cycle, some of the mainstays of American political rhetoric are also at the rendez-vous.

Take Donald Trump, for instance.

In January, one of his campaign rallies featured the following performance:


While it features somewhat dated nationalist lyrics (including verses like “Come on boys, take them down!”), slightly updated for promoting Mr. Trump’s bid in the 2016 presidential contest, it also highlights a theme that is about as central to American political rhetoric as apple pie is to American cooking: freedom.

Whether freedom has been invoked as an empty rhetorical trope, as in this case, or whether it has been used more substantitvely, it has so completely permeated electoral discourse as to become inescapable.

Whether they have talked about government regulation, trade, national security, tax reform, education, abortion, or immigration, freedom has been Republican candidates’ preferred frame of reference.

Meanwhile, on the left of the political spectrum, Hillary Clinton and Bernie Sanders have been quite as single-minded. While Clinton has spent a great deal of her time trying to square away her commitments to free trade and to an equalitarian progressive politics, Sanders has explained his commitment to democratic socialism as meaning “that we must create a vibrant democracy based on the principle of one person one vote.” “True freedom” according to Sanders, “does not occur without economic security. People are not free, they are not truly free, when they are unable to feed their family.”

And yet, these invocations are largely based on outdated conceptions of what freedom is. The idea at the back of Sanders’ viewpoint, that economic independence is the necessary precondition for democratic citizenship harks back to Thomas Jefferson’s glorification of the yeoman farmer, as historian Eric Foner was already noting in his book, The History of American Freedom. And as sociologists have been observing since the 1950s, such an ideal of economic independence is woefully inadequate to the corporate economy in which we live.

But it is just as true that the thesis that deregulation of international trade or of the labor market will result in greater individual freedom is based on the idea, first defended by classical liberals like John Stuart Mill, that government power threatens individual liberty. Mill’s disciples in the twentieth century, intellectuals like Friedrich von Hayek and Milton Friedman, argued that the crux of liberal freedom consists in the absence of coercion of the individual, either by private monopolies or by government power, so that the smaller the size of the government is and the less active it is in citizens’ lives, the greater will their freedom be.

But as early as the 1960s, the American social psychologist Stanley Milgram actually found, in a series of now famous experiments, that most people do not need to be coerced into doing things they don’t want to do, including engaging in actions which they are convinced will most likely result in the death of an innocent person: they will do these things of their own free will – a situation that suggests that “free will” and freedom may not be the same things after all.

In fact, a growing body of evidence has been produced in the human sciences over the past 40 years that suggests that the notion of a free-willing individual, who can make decisions independently of social and cultural contexts is a figment of our imagination. What this research reveals is that it is not the absence of context that enables individuals to act freely (whether it be the absence of a monopoly or the absence of a state bureaucracy), but on the contrary the presence of one.

This scientific research reveals several very surprising things about human nature that directly contradict the vision of human beings as rational, egoistic individuals, driven by an unquenchable lust for pleasure, money, or power, which we inherited from classical liberalism. The most recent of the great apes, it turns out, is a hypersocial being, whose subjective experience of the world is profoundly shaped by its empathetic openness to others, an openness that is not premised on any sort of fundamental or primitive goodness, but rather on the evolutionary mechanics of communication. Social psychologists, for instance, have discovered that in order to understand what someone else is saying we have to imitate the motion of their vocal chords (though in a much reduced fashion). We have to, in other words, become them. Neuroscientists have also found a specific type of neuron which corresponds to this process in the brain itself, the so-called “mirror neuron.”

Our identities, and therefore our desires, are profoundly affected by our cultural, social, and political contexts. To be free thus necessitates participating in the formation of the communicational contexts that affects and form us all. Freedom requires not only the freedom of expression cherished by classical liberals, but a certain freedom of connection – the power to shape the contexts in which this free expression happens. The freedom of choice advocated by classical liberals and their twentieth century followers confuses the fruit of freedom, the will, with its root. Likewise, those social liberals and socialists who emphasize economic independence while ignoring the other complex dimensions and processes involved in the creation of a free personality seem to be missing a significant component of the reality of the process of freedom.

This conception of freedom, if we examine it closely, suggests that democracy is not just a matter of elections or of constitutional rights (though it undoubtedly includes those concerns). Nor is the issue that of how “big” government bureaucracy will be. More fundamentally, political freedom consists in individuals and communities having the power to mutually affect each other and form each other. Democracy, understood from this perspective becomes a way of life rather than a formal mode of government, one that has consequences not only for the way in which ownership of the media of mass communication is organized for instance (a frequent complaint of the Sanders campaign is that this ownership structure is creating a bias in its coverage of politics), but also for every aspect of our lives, from the workplace to the bedroom, its fundamental principle being “equality of participation.” The aim of a “politics of freedom” in this context would be neither decreased regulation of the economy or increased government intervention but the creation of increased opportunities for participation by all members of society in both economic and political decision-making, regardless of their wealth or income level. Beyond the public funding of elections, one might imagine this agenda including decreased mediation of the mechanisms of political representation. Currently, for instance, the average ratio of representatives to represented in the US House of Representatives is something like 1: 290,000, making it extremely difficult for any but the most powerful interests to gain a hearing, regardless of the way elections are funded. And yet, there seem to be few technical impediments to cutting that ratio in half for instance. Any number of other reforms could be proposed that would enable greater citizen participation in the polity, from making congressional office-holders into recallable delegates in order to increase accountability, to instituting worker and consumer co-management councils in private corporations, legally entitled to raise concerns about the social and environmental consequences of business policies (corporations being legal entities to begin with, there seems to be little weight in the argument that this would be “undue government interference”).

Now, wouldn’t the transformation of everyday life from the standpoint of such a principle of “equality of participation” be the basis for a genuine “political revolution”?

HERO in Texas

Though it’s always the big-ticket national elections that draw the most public attention, we need to put Trump, Hillary, Carson and Sanders away for a few minutes and talk about the local elections. A number of interesting issues were put to vote this year on the local level. Some of the issues that were determined popular vote were fracking in two California cities, decriminalization of marijuana in Ohio, minimum wage in Washington state, a ban on GMOs in Benton county, Ohio and a LGBQT issue in Houston, Texas. Such measures, which affect citizens at the community and state level, would modify, pass or vote down certain policies.

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