Dec 13, 2021
I feel like an exhausted well digger, shovel in hand, who was just handed a jack hammer. But in my case, it is a tool I didn't even know existed--a tool for saving our beleaguered democracy.
A premise of our Constitution is that each state of the union is governed as a "republic." Article IV Section 4 states: "The United States shall guarantee to every State in this Union a Republican Form of Government." This pledge to the states is often called the "guarantee clause."
In just the first nine months of this year, at least 19 states have enacted 33 laws making it more difficult for Americans to vote, reports the Brennan Center for Justice.
And what is the "Republican form of government" that our Constitution guarantees each state?
Typically, "republic" is defined as a polity in which "citizens have the supreme power," expressed through representatives they elect. Note that "supreme power" vested in citizens must mean equal power; for citizens as a body cannot hold "supreme power" if some citizens have power over others. Such inequality moves us toward aristocracy, not a republic.
The guarantee clause couldn't be clearer, right?
In fact, legal scholar Jared Stamell argues that the "Guarantee Clause Protects the Right to Vote Without New Federal Legislation." He underscores that "the Founders" understood that the "Republican Form is a government where every eligible citizen has the opportunity to vote and...the Federal Government must protect the right to vote."
In theory, Stamell seems right, but Congress has stood on the sidelines, not yet fulfilling its constitutional mandate defined in the guarantee clause. Neither have the Courts stepped in to ensure equal representation. Instead, by equating spending with speech, as in its 2010 Citizens United decision, the Supreme Court has deepened the inequalities corrupting our democracy.
How urgent is it that Congress act to ensure a "Republican form of government"?
In just the first nine months of this year, at least 19 states have enacted 33 laws making it more difficult for Americans to vote, reports the Brennan Center for Justice. Moreover, Republicans are enacting highly gerrymandered maps that will make elections across the country even more unfair and uncompetitive.
Note that the Supreme Court ruled in 2019 that partisan gerrymandering is "not reviewable" by the federal courts. Thus, as the body that sets the rules, Congress is the arm of government able to uphold the guarantee clause.
The 1965 Voting Rights Act is an example of Congress meeting this mandate. Among its provisions, the law prohibited jurisdictions with a history of discriminatory voting practices from making any change to related laws without first getting approval from the Department of Justice or the U.S. District Court for D.C. after verifying the change did not discriminate against protected minorities.
Almost five decades later, in 2013, the Supreme Court decision Shelby County v. Holder concluded that conditions had changed, so affected states would no longer be subject to such "preclearance." To reinstate it, Congress would have to update the formula for determining discrimination. The decision invited Congress to create that new formula, but it failed to do so.
Note that race-and-language-discrimination in voting laws remains illegal. Case in point: The Department of Justice has stepped up this week, using the 1965 Act. It sued Texas over the state's new redistricting plan, arguing that its map illegally "undermines minority groups' right to vote." The Supreme Court, however, is increasingly hostile to these challenges.
Now is the moment for Congress to meet its constitutional mandate, including and going beyond race-and-language discrimination.
Pending in Congress is the Freedom to Vote Act, which would ensure the freedom to vote for all Americans, end congressional partisan gerrymandering, and reduce the influence of big money in politics. Congress can also pass the John Lewis Voting Rights Act that would restore and strengthen the key provisions of the Voting Rights Act.
Many argue that Democrats must end the filibuster to pass this essential legislation; and if they do not, Republicans, once in power, will kill it to continue their assault on voting rights foundational to the republic.
Time is running out for protecting our democracy. And, note well: No matter what one's central passion--be it the climate crisis, universal healthcare, extreme economic inequity, and more--democracy is the tap-root solution essential to progress.
Now, confident in knowing the Constitution is our foundation, even the timid among us can call our representatives, imploring them to stand up for voting rights and our embattled republic--as they stay true to their oath of office. And, if more motivation is needed, take in this sad news: In the quality of our democracy Freedom House ranks the US behind 57 countries, behind Monaco and Romania.
In this process, let us spark conversation about why the guarantee clause has been absent in national dialogue and how we can fortify our endangered democracy.
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