Stumbling Into Democracy

A year ago, no one thought we would be here today – in a place where our democracy is being invigorated on a weekly basis by a still undecided presidential primary between two incredible, barrier-shattering candidates. For people of my generation, this is our first real glimpse of national democracy in America.

Beginning in 2000, it has been clear that only the votes of a handful of voters in a handful of states really matter in determining the president of all of the United States. In 2000 and 2004, we had a presumptive nominee for both parties after no more than five states had voted. The rest of the country would get to choose between those nominees at least.

Not exactly. In both 2000 and 2004, the election was not fought in California or Alabama or Massachusetts or Texas. It was fought in a handful of “battleground” or “swing” states. Ninety percent of the election was decided before the campaign even started.

Faced with these realities, it was perfectly reasonable for a citizen to become cynical about the value of voting and the likelihood that there voice could make any difference. In Texas in 2004, what was the point of a vote for John Kerry when all of that state’s electoral votes had already been tallied in permanent ink for George Bush?

Which brings us to the beauty of the primaries this year. Our democracy has been given a shot of Red Bull by a combination of three unexpected characteristics of the campaign that we ought to try to replicate in the future.

First, margins matter. The most intriguing thing about the Democratic delegate dash is that it does not just matter who wins a state, but by how much. The idea, solidified by the electoral college system, that a state that is decided 51% to 49% ought to apportion its influence (winner takes all) the same way that a state decided 80% to 20% is ridiculous and makes a mockery of the very concept of democracy.

Second, politics is local. The delegate rush has also forced the candidates to look not too closely at statewide numbers, but instead to focus on district-by-district results. Because there may be delegates to gain even in a state that is certain to be lost (and even more so because the number of delegates may depend upon margin of victory), candidates are wise to campaign everywhere. Sure, battleground states (or districts) will get more attention, but a system where a Republican candidate has no reason to campaign in California is surely a broken one. I witnessed this first hand in Memphis – although Barack Obama trailed significantly in statewide polls, he opened a Memphis campaign office, carried the county with 70% of the vote and picked up delegates.

Finally, democracy requires participation. The system we all know and loathe discourages participation. Because only votes in early primary and battleground states truly matter, what is the incentive for citizens to invest their votes and more importantly, their mental energy in a campaign? What is the point of even following politics or considering different positions on important issues when the direction of our leadership will be determined primarily by Iowans and Floridians? What the surprising length of the nominating contests has shown is that people will participate and will invest their minds in the political process when they perceive that their votes matter.

There is nothing more troubling to democracy than voter impotence because the (often correct) belief that a vote is meaningless encourages voter apathy and disengagement from governance. Our Constitution is clear that the government serves only at the pleasure of we, the people. Too often that seems to not be the case, but in the last eight weeks, we have gotten a glimpse of several characteristics that can improve our democratic process. Of course, all is not quite perfect – there remains the specter of superdelegates undoing all of the democratic enthusiasm generated by these primaries.

This year, we have stumbled upon a system of national democracy that is maintaining voter engagement across the country and for an extended period of time. As we look beyond November, the country would be well served by building upon this stumbled-upon blueprint to reimagine American democracy for the 21^st century.

The Civil Rights Story of the Fall

This fall, a lot of attention has found its way to Jena, Louisiana, where civil rights activists and advocates have descended to condemn a grim reminder of the progress to be made in American race relations. The Jena story exposed the stubborn presence of private racism and disproportionate law enforcement by local officials. That story, however, overshadowed another troubling civil rights story that suggests that the problems in Jena continue to exist even at the upper echelons of the federal government.

John Tanner is the head of the voting rights section in the Civil Rights Division of the U.S. Department of Justice. This job, head of a section created by the Voting Rights Act of 1965, was specifically designed to protect the voting rights of African American citizens who were being denied registration. As part of his job, Tanner reviews the conclusions of his subordinates regarding questions including whether voter ID requirements discriminate against African American voters. When his subordinates recommended that a particular Georgia voter ID law did so discriminate, Tanner overruled them. Just for the record, the Georgia law has been ruled unconstitutional twice by a federal judge who likened it to a poll tax – a method, it is worth noting, that the Voting Rights Act was specifically enacted to eliminate. In October, we got a glimpse of exactly what Tanner was thinking when making that decision.

In a attempt to make the point that the voter ID law actually discriminated against elderly, and not African American voters (as though that is a testament to the goodness of the law), Tanner explained that “our society is such that minorities don’t become elderly the way white people do.” Inserting his foot further, he said, “They die first.” The argument, then, is that the law does discriminate against the elderly; the elderly are more likely to be white; and therefore, the law does not discriminate against African Americans. Bulletproof logic.

Let’s leave aside the question of whether it is factually accurate to say that black Americans on average die earlier than white Americans – the truth of that statement is irrelevant to what makes Tanner’s comments so reprehensible. Assuming that it is true, it is worrisome that Mr. Tanner found this fact to be an acceptable response to counter the suggestion that voter ID requirements disproportionately disenfranchise minority voters. It is a short step away from advocating early death for African Americans in order to ensure that the voter ID requirement will not discriminate against them.

Now, Tanner certainly is not advocating for this, but he is using a racial disparity in life expectancy and health outcomes as justification for his position, and thus, implicitly arguing that such a racial disparity is acceptable. In a country in which all are created equal and where every citizen is entitled to equal protection, a racial disparity in life expectancy is not acceptable and should not be acceptable to any American.

The only way such a disparate outcome would be acceptable is if one disregards the “all men are created equal” ideal upon which our society supposedly rests. If, for instance, African Americans are not equal to whites, than there really is no problem – African Americans die first because they are inferior. Isn’t this what Tanner is really suggesting when he cited the fact in his answer? And if so, isn’t it a problem that the head of the agency charged with protecting voter rights and making determinations about whether policies like voter ID laws are discriminatory even appears to think this way?

As Representative Artur Davis of Alabama scolded Tanner in a hearing that was unfortunately a distraction from the important and real debate about the wisdom, necessity, and constitutionality of voter ID laws, “If you are basing your conclusions on stereotypes rather than facts, then it suggests to some of us that someone else can do this job better than you can.”

Today, John Tanner remains the head of the voting rights section of the Civil Rights Division of the U.S. Department of Justice. What does that say about the progress of race relations in this country?

Justice Being Served?

In American mythology, the part of Justice is often played by a blindfolded woman weighing competing evidence dispassionately. She is to reach her just conclusions without regard to the way an individual looks or what that individual thinks or which party that individual votes for.

At the Department of Justice, the blindfold has apparently been removed.

The recent firing of eight US Attorneys for what appear to be partisan purposes has led to an outright Washington scandal, complete with hearings and testimony and subpoenas. However, the US Attorney firings were merely a continuation of the practice of politicizing the Department of Justice that began the moment the Bush Administration – and with it, Attorney General John Ashcroft – took office.

DOJ is headed by political appointees, like Ashcroft, who serve at the pleasure of the President. These individuals set larger policies to ensure that the DOJ functions as part of the larger presidential administration but typically do not direct the thousands of cases being pursued by DOJ at any time. That task is left to the roughly 300 career attorneys who serve in DOJ regardless of who is in the White House. Through Republican and Democratic administrations past, there has been a mutual respect, if not always agreement, between the political appointees and the career attorneys.

By many accounts, that respect disappeared when the Bush Administration began shaping its Department of Justice, most significantly in the DOJ’s Civil Rights Division. The mandate of the Civil Rights Division is to enforce the nation’s civil rights laws, whether by suing an employer for a pattern or practice of employment discrimination or enforcing voting rights laws against a state that is disenfranchising minority voters. Through changes in the procedures for hiring new attorneys and shifts in the types of cases it undertakes, the Bush/Ashcroft/Gonzales DOJ has transformed the Civil Rights Division into a partisan tool.

Prior to 2001, job applicants would be hired by career attorneys subject to approval from the political appointees. Under Ashcroft, this practice was abolished in 2003 as career attorneys were removed from the hiring process completely. The results were predictable. According to the Boston Globe, only 42% of the career attorneys hired in the two years after 2003 had civil rights litigation experience, compared to 77% in the two years prior. In addition, of those 42% who had civil rights experience, half had gained it by defending employers against discrimination or arguing against affirmative action policies.

Similarly, the perspective of the career attorneys has been minimized in selecting the cases and positions taken by the Department. Despite career attorneys’ recommendations to the contrary, the DOJ has come out in favor of redistricting efforts in Mississippi and Texas that have benefited Republican candidates and recommended approval of a Georgia voter identification law that the career attorneys concluded would disenfranchise minority voters. The number of enforcement actions being brought for employment and voting discrimination is down, while the number of cases brought on the theory of “viewpoint discrimination” (i.e., cases claiming discrimination on the basis of religious beliefs) is up.

Career attorneys have been resigning in protest of these policy shifts throughout the Bush reign, but are only now gaining an audience in Congress. Last month, a House Judiciary subcommittee held hearings on the Civil Rights Division. At the hearing, Joe Rich, a 37-year veteran and a former chief of the Voting Rights Section in the Civil Rights Division who left in protest in 2005 testified that “the political decision-making process that led to the questionable dismissal of eight United States Attorneys was standard practice in the Civil Rights Division years before these recent revelations.”

In this context, the firing of US Attorneys who were reluctant to pursue a partisan agenda makes perfect sense. This Administration has never made it the goal of the DOJ to pursue justice, but has used the Department as part of a larger effort to create a permanent Republican majority. Only time will tell if it has succeeded in permanently removing the blindfold from DOJ.

Sit Down if You're Blocking the Vote

In 1965, Lyndon Johnson formed an alliance with Dr. Martin Luther King, Jr., to craft and pass the Voting Rights Act. Developed in response to endless hurdles being thrown up to keep African Americans from registering to vote or voting, the Act established a nationwide prohibition against discrimination in voting. The necessity of the law despite the Fifteenth Amendment's guarantee of the right to vote to all citizens, adopted nearly a century before, is a testament to the long and largely successful history of voting discrimination in the United States.

The Voting Rights Act was one of the most important pieces of legislation enacted during Johnson's presidency, but it was also political suicide. Knowing that support for the Act would hand the South to the Republican party, Johnson forged ahead anyway. Three years later, he stunningly withdrew from the presidential race and retired.

Voting remains a critical issue in America today. The last two presidential elections confirmed the importance of every single vote in determining the leadership and direction of this country. Yet, despite this importance (or perhaps because of it), lawmakers continue to take steps aimed at restricting the ability of Americans to vote, even threatening the future of the Voting Rights Act itself.

Although many portions of the Act are permanent law, other sections must be renewed from time to time. Several important sections are set to expire in 2007, including the requirement that states get clearance from the Justice Department before making changes in their voting procedures, such as redistricting, that could affect minority voters. Affirming the importance of these procedures to protecting voting rights, a bipartisan consensus in Congress had agreed to renew the provisions this summer. It was the type of broad support such an important law deserved. However, the expected vote was cancelled last week after several southern Republicans complained that the law unfairly targeted the South. Now, it is unknown when Congress will take up the issue or whether the Act will be renewed at all over these lawmakers' objections.

The recent efforts by lawmakers to delay renewal of the Voting Rights Act are the kind of partisan politics Lyndon Johnson, a Southerner himself, rose above in initially passing the bill. Unfortunately, efforts to delay renewal are part of a nationwide trend toward making voting more difficult for more people. According to the Brennan Center for Justice at NYU School of Law, several states including, of course, Florida and Ohio have recently passed restrictions on voter registration drives despite the fact that such drives have no correlation with voter fraud. These drives simply increase the numbers of registered voters and, consequently, the number of Americans who vote. Such efforts should be encouraged rather than restricted.

Meanwhile, the Supreme Court produced a complicated decision on Wednesday regarding the recent redistricting effort in Texas. On one hand, the Court reaffirmed the continued need for provisions in the Voting Rights Act like those the rebelling lawmakers complain of, ruling that a redrawn district in southwest Texas unfairly diluted the votes of Latino voters. The Court ordered a new district drawn that would be more consistent with the tenets of the Voting Rights Act. However, the Court took no action to undo the highly-partisan redistricting that resulted in a net gain of four Republican seats in the Texas legislature, concluding that such gerrymandering of districts by party was constitutional.

The case in Texas is a mixed result that vividly illustrates both the continued necessity for protections like those found in the Voting Rights Act and the kinds of ways lawmakers continue to manipulate the election process.

In 2006, we look back at efforts such as poll taxes and literacy tests as blatant discrimination that ought to be condemned. Yet four decades after passage of the Voting Rights Act, lawmakers continue trying to manipulate the election process wherever they can find an opportunity, whether by campaign finance regulations, gerrymandered districts, restriction of voter registration drives, efforts to prevent ballots being available in foreign languages, expensive voter identification requirements, or even failing to renew some of the most important provisions of the legislation most useful in protecting Americans' right to vote. Such efforts taint our government, our elections, and our society and are no more acceptable today than they were in 1965.

Missed Opportunities on "Elections"

Once upon a time, Americans mocked the elections taking place in the single-party Soviet Union by referring to them as “elections,” rather than elections. The quotation marks implied that the removal of choice from an election stained such an election as inadequate or even fraudulent.

These days, even as we export democracy to Iraq and celebrate the elections taking place there, our own elections may not be quite adequate themselves. Nathanial Persity, an election law expert at Penn Law School, pointed out earlier this year that the turnover in the U.S. House of Representatives is actually lower than the turnover in the Soviet Politburo.

Indeed, according to the government reform group Common Cause, in 2004, only 7 of the 399 incumbents running for the House were defeated. That’s a 98.2% victory rate for incumbents, and 4 of the 7 who were defeated came from Texas where a supremely sketchy mid-decade Tom DeLay-inspired redistricting led to the ouster of Democrats. And the incumbents did not win competitively – 85% of them won by more than 60 points.

Shocking, isn’t it? Elections in the House, the body imagined to be closest and most accountable to the people, may be nothing more than “elections.” By removing the barrier of contested elections, an oligarchy of permanent politicians has taken an enormous bite out of government accountability. The result is greater concern for the donors who fill incumbents’ coffers to ensure that the next “election” will turn out exactly like the last. Given this situation, it should be no surprise that it is special interests and not voter interests that move the ball in Washington.

How did we get to this point? In 1812, Massachusetts Governor William Gerry transformed the Essex County district to a shape vaguely reminiscent of a salamander, birthing the term “gerrymandering,” and providing what would become the tool-of-choice for politicians to entrench themselves and their parties in office.

Although generally thought of in a negative light, gerrymandering has its upside. It can be an extremely useful method to maintain minority representation in government. In the South and Southwest, gerrymandered districts have been used to assure Black and Hispanic Americans a seat at the political table and to prevent minority interests from being ignored by the tyranny of the majority. However, more often, gerrymandering is used not to benefit the voters, but the politicians themselves. State legislatures are generally given the responsibility of drawing the very district lines they depend on for their positions. Leaving the inherently political task of redistricting to those with the most at stake in hope that they will not exploit that power defies centuries of human experience.

Voters this week in Ohio and California had the opportunity to consider reforms to redistricting, but the measures in neither state passed. The two plans were met with considerable disdain from both parties. Redistricting for selfish political gain, after all, is a nonpartisan issue – both parties gain from eliminating competitive elections.

In California, the measure was proposed by a Republican governor in an effort to break a Democratic lock on the state legislature. Governor Schwarzeneggar proposed that the task of redistricting be handed over to a panel of retired judges, but ran up against heavy Democratic opposition. The sides were reversed, but the result the same, in Ohio, where labor unions and moveon.org pushed for a measure creating an independent panel to redraw districts and break Republican control of the state assembly.

Both measures would have maintained the necessary human involvement in redistricting in order to keep the good of gerrymandering (minority representation), while eliminating the bad (partisan strangleholds). The defeats were a setback for the election reform movement, though the fight moves on to states like Florida and Massachusetts.

The self-dealing of redistricting is truly repugnant to most Americans. With voter accountability slowly being removed from the political process, referendums like those in Ohio and California provide the rare opportunity to halt partisan redistricting. Unfortunately, voters failed to capitalize on the opportunity this week and ensured that at least in two states, elections will be more like “elections.”