Minority Rule and Voting as Protest

by Terry Wechsler

The American system of democracy is one of the more complex forms of government, not the least reason being the struggle to balance power, particularly among the branches. But another balance that has challenged the nation since its founding is protecting the minority from the tyranny of majority rule.

Slave-holding states wanted “equal” say, not necessarily consistent with their relative populations (particularly since slaves were barely counted as “men” for voting purposes) as a tradeoff for entering the Union. Hence the method of electing the U.S. senate.
The Electoral College was an elaborate scheme designed to prevent ascendency to the presidency by “any man who is not in an eminent degree endowed with the requisite qualifications,” according to Alexander Hamilton in The Federalist Papers.

What the Founders could not foresee was the way the nation would evolve as its population grew, and rural economies provided less and less of the nation’s wealth. The result is a demographic reality that contributed to the current “Tyranny of the Minority,” which happens to be the title of the first op-ed for The New York Times by Michelle Goldberg.

Goldberg, citing Sanford Levinson, a University of Texas constitutional law scholar, noted that modern demographics and our federal election system result in urban voters who represent roughly half the population functionally getting only about 20 percent of the vote. She summarizes:

America is now two countries, eyeing each other across a chasm of distrust and contempt. One is urban, diverse and outward looking. This is the America that’s growing. The other is white, provincial and culturally revanchist. This is the America that’s in charge.

Polls show a third of Californians — frustrated with the imbalance between their economic contribution to federal coffers relative to their representation in the Senate and Electoral College — favor secession. New Yorkers, to some degree, share their sentiment.
Demographics alone, however, cannot account for the political reality in the nation today where a population with more registered Democrats than Republicans has a Republican president and Congress, while 34 states have Republican governors, and 32 states have Republican-controlled legislatures.

This phenomenon did not simply result from shifting demographics. It required more than a little orchestrating, mostly in the form of gerrymandering and voter suppression. Several federal courts have ordered redrawing of congressional districts, and legal fights proliferate to address laws and policies — such as photo I.D. requirements and selective closure of precinct polling places — which disproportionately affect the voting ability of lower income voters who tend to be disproportionately people of color and Democratic-leaning. Similarly, voting at polls rather than by mail, and on work days rather than weekends or designated holidays, effectively suppresses the votes of hourly wage earners, whether intentionally or not.

Congressional measures to redress federal voting inequities seem unlikely given the current political climate. One proposal, The National Popular Vote Interstate Compact, would require states to cast their electoral votes for the presidential candidate who wins the popular vote in their state. Donkeys will no doubt sooner fly.

The federal courts do what they can when questions of redistricting and fair voting reach them, but ultimately those decisions must survive a now Republican-controlled Supreme Court.

Harvard Law professor Lawrence Lessig (lessig.org) believes there is an Equal Protection Clause argument to be made that the “winner-take-all” method 48 states use to cast Electoral College votes violates the one-person-one-vote guarantee of the U.S. Constitution. He plans to file a crowd-funded legal challenge soon, which he hopes will raise awareness of the unfairness of the current electoral system, if it does nothing else.
In the meantime, though, there is something every person could do to redress systems and practices that have resulted in the tyranny of the minority:

Voting is not radical or subversive, but in an age when less than 50 percent of registered voters participate, particularly in “off-year” elections, such as this one in 2017, voting becomes almost a form of protest. While elections in even years are “sexier” — in 2018, the nation will vote for the entire Congressional House of Representatives and one-third of the Senate — odd-numbered years can involve important legislative special elections at the state and federal level, as well as the opportunity to severely impact local governance. That is the case in Whatcom County this year.

Among the measures on the ballot in Whatcom County is Prop 2017-6, the “jail tax,” which will determine whether we pay to fund a tax increase for a new jail that dwarfs the current facility. Also on the ballot are races for a majority of the seats on the County Council and the Port Commission.

The County Council’s influence on our daily lives, and the local economic and environmental health of the area, is significant. For instance, in the last week of September, that body voted to extend a moratorium on development of new facilities at Cherry Point, which would export unrefined domestic fossil fuels. This has the practical effect of preventing development of an additional pier and storage facilities for Bakken and Canadian crude to be shipped via trains and pipeline to Whatcom County, then stored and exported on tankers through our Salish Sea to be sold in overseas markets, primarily in Asia.

The Port Commissioners, who represent the entire county, oversee development of water-related resources and manage the airport. They must balance expenditure of a budget in the hundreds of millions of dollars and prioritize improvements on waterfronts, development of docking facilities and expansion of the airport.

Our county’s land use, economy and environment will be affected for generations by the decisions our elected officials make today. If we do not vote, we virtually and metaphorically hand the keys to the kingdom to folks whose values may not be compatible with our own. The British Petroleum Corporation, for example, contributed $1,000 each to three county candidates this year: Marie Kay Robinson for County Council; and Ken Bell and Dan Robbins for Port.

Beyond our immediate borders, we can contribute to key special elections in which we cannot vote by contributing money, if we are able, as well as volunteer efforts. Most phone banking today is remote. Some citizens from Whatcom and nearby counties literally rode buses to King County to canvass for Manka Dhingra, who is running in a special election for the state senate seat in the 45th Legislative District — a race that could flip the state Senate from a majority Republican to a majority Democratic.

The election of Donald Trump hammered home the importance of voting. Our state did its part, but across the nation, turnout determined Electoral College votes that swung a presidential election to a candidate who had not won the popular vote. More voters might have prevented that.

Sometimes at the federal level, and even more often at the state and local levels, we have no one but ourselves to blame if the candidates who better represent our values lose their elections. At that point we do get the government we deserve.

Key Dates

Oct. 9: Deadline for online voter registration, address change and other updates
Note link: www.myvote.wa.gov. Citizens may vote even if they have not updated their address.

Oct. 16: County mails Voter Guides for Measures/Local Candidates
Note link to view online Voters’ Guide: http://www.whatcomcounty.us/1732/Current-Election

Oct. 18: Ballots are mailed to Whatcom County registered voters
Note link to view sample ballot: http://www.whatcomcounty.us/1732/Current-Election

Oct. 18: Drop boxes open; close 8:00 p.m. election day, Nov. 7

Note map of drop box locations: http://www.whatcomcounty.us/1863/Ballot-Drop-Box-Locations

Oct. 30: Deadline for in-person new state voter registration
Note location: Auditor’s Office, 311 Grand Ave., Ste. 103, Bellingham, 8:30 a.m. – 4:30 p.m.

Nov. 7: General election and deadline for ballot postmarks
Terry Wechsler is a Washington attorney who has previously written for Whatcom Watch about fossil fuel transportation proposals. Richard May, Whatcom County Democrats’ State Committeeman, contributed to this op-ed.