The Will of the Minority

Alan Zendell, January 17, 2021

When our Founding Fathers proposed that our nation be governed by democratically elected leaders, intending that we would be led by people who reflected the will of the majority of voters, it was a bold new concept. The entire civilized world was governed by kings, queens, emperors, and petty warlords. Could the idea of electing leaders actually work?

We’re still asking that question today, and it’s not looking good for democracy. In the eighteenth century, our Constitution appeared to support majority rule in concept, but reality fell far short of that. Majority, in 1789, meant a majority of white, male landowners, who were, in fact, a pitifully small minority of the population.

That held true for nearly fifty years, but in the 1820s, America achieved nearly universal white male suffrage. New York began the trend in 1821, when it removed the land-owning requirement for white males, but not for nonwhites. It took until the end of the decade for full voting emancipation (for white male adults) to be legislated in most of the other states.

After the Civil War, the thirteenth, fourteenth, and fifteenth Amendments expanded voting rights to all Negroes, whether they were former slaves or not. In 1840, non-property-owning whites were allowed to vote in the presidential election in most states, but it took until 1856 for that to become law in every state. At the end of 1865, Congress and the states incorporated Lincoln’s Emancipation Proclamation into the Constitution in the Thirteenth Amendment. Three years later, the Fourteenth Amendment granted equal citizenship and civil rights to all Negroes, both former slaves, and those who had lived free. In 1870 Congress and the states finished the job of repatriating former slaves, by adopting the Fifteenth Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

Finally, the Constitution had provided for governance by the majority of citizens – as long as they were male. (Women, who always comprised more than half of our adult population, didn’t get the right to vote until 1920.) Some states wouldn’t accept the general statement of Amendments 13-15, and a battle between states’ rights and the federal government ensued until 1965, as state after state claimed the right to control its elections, legislating poll taxes, literacy requirements, and any other restriction they could think of to keep nonwhites from voting. The 1965 Voting Rights Act was passed to correct that, but the fight continued, as states and the Supreme Court chipped away at the 1965 law.

Today, we face a critical time for voting rights, and it’s one that drips with irony. The Supreme Court now has a 6-3 Conservative majority – or does it? All three of Trump’s additions to the Court claimed to be strict constitutionalists, or “originalists.” That literally means adhering to the letter of the Constitution and the perceived intent of the Founders, which can be summarized in two concepts: democracy and majority rule. If they adhere to the principles they professed at their confirmation hearings they will find most of the provisions of the restrictive state voting laws of 2021 unconstitutional. But will they?

This is a critical question because it gets to the root of the Big Lie. If the Court allows current practices in many states to stand, democracy and majority rule are in serious trouble. Gerrymanding allows political operatives to skew the vote toward the party in power in each state. In some cases it nullifies the ballots of as many as one quarter of a state’s voters, whose only crime was registering with the opposition party. The proposed new redistricting map in North Carolina would allow more than 70% of the seats in the legislature to be captured with less than 50% of votes cast.  Voting restrictions designed to keep down the nonwhite vote count assure under-representation by blacks, Hispanics, and native Americans.

All this is what is on the table in the fight to pass a new federal voting rights law. Think about that. Democrats control only half the votes in the Senate, but those Senators represent the views of more than two-thirds of Americans who support democracy and majority rule. The only thing preventing passage is the filibuster.

The fight over the filibuster will go on indefinitely, but this is not about eliminating it from Senate rules. Carve-outs are nothing new. All the President and forty-eight Democratic Senators are asking is that the filibuster be suspended for one vote to save our democracy. I want to hear Senators Manchin and Sinema justify their opposition to that in open forum. Wouldn’t you love to see Jake Tapper and Chris Wallace grill them in a national Town Hall?

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