Readers of Fault Lines in the Constitution and of this blog are probably aware that the title, which was brilliantly suggested by our editor, Kathy Landwehr, relates to geology. Just as the Earth contains underground fault lines that slip, slide, and sink, causing earthquakes, so does the basis of our Constitution contain fractures that can demolish our government.
Furthermore, there are many kinds of geological fault lines, including tectonic, volcanic, collapsing, and explosive. Similarly, we discuss twenty kinds of constitutional fault lines in the book. Earth—and likely many people around the world—would really be in trouble if several of these occurred at once! The good news is that serious multiple earthquakes are not happening simultaneously, as far as we know. Unfortunately, however, it appears that numerous fractures in our government are currently splitting apart, with potentially catastrophic results for tens of millions of Americans.
We’ve written about these current issues, mostly recently on Supremacy. Let’s take stock on the converging fault lines that are shaking our foundations now.
The Framers left decisions about who has the right to vote, as well as when, how, and where they do it, up to each state. As we explain in Chapter 8 in Fault Lines in the Constitution, the reason there is no national set of guidelines is that they punted the issue; even in 1783, the right to vote was too hot to handle. That approach, though, led to multiple inconsistencies across the country. Until 1807, some women could vote in New Jersey but nowhere else in the United States. Some free Black people could vote in some places at some times, but other free Blacks in other places or times could not. As a result, Congress ratified four constitutional amendments—the Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth—limiting states’ powers in this area. The Equal Protection Clause of the Constitution has had the same effect.
Nevertheless, states retain significant control over the right—or the prevention of the right—to vote. Since no state is willing to place its freedom to decide who votes in the hands of the rest of the country, significant variation among state practices persists. Oregon makes voting easy by not just allowing but requiring that voters mail in their ballots, thus eliminating the problems of getting to the polling site when it’s open and waiting in line. At least eighteen other states, however, recently passed a slew of barriers to voting, make it harder to register, get to the polls, and submit a ballot. Experts expect that it will be particularly difficult for low-income and people of color to participate in elections. Georgia has even prohibited providing people in line with water or food!
The only way to overcome states’ actions that limit voter participation is for Congress to pass a law establishing consistent criteria for the whole country. The monumental Voting Rights Act of 1965, for instance, outlawed discriminatory practices like literacy tests and, crucially, requiring federal approval for any state changes in voting practices. In 2015, however, the Supreme Court, in a five-to-four decision, gutted this so-called “pre-clearance” aspect of the VRA, ruling that it amounted to federal incursion on the sovereignty of states. Congressional attempts to overturn this decision by passing new legislation, including the Freedom to Vote: John R. Lewis Act, are headed to defeat, even though they are supported by a majority of both the House and the Senate. A major reason is the Senate’s filibuster rule.
Majority rule in the Senate is a myth. While it takes a majority to pass or defeat a bill, a minority can prevent it from even being discussed, prior to voting. With rare exceptions, no bill can be voted on unless sixty senators agree to allow it to come up. This means that even when fifty-one senators support a bill, they never get the chance to vote for it.
If the filibuster were disallowed, the Freedom to Vote Act might pass the Senate, as a similar bill has done in the House of Representatives. Every Democratic senator and those who vote with the Democratic caucus, as well as Vice President Kamala Harris, support the bill, which means that there are fifty-one votes for passage. However, two Democrats joined all fifty Republicans in preventing the filibuster rule to be changed so that the vote could take place, so it really doesn’t matter what the majority wants. Other legislation backed by Democrats and by President Joe Biden, such as bills regarding infrastructure and climate change, also may not pass, given united Republican opposition to letting almost all legislation come up for votes. Thanks to the filibuster, Congress is stymied.
Every ten years, the US government counts noses to see how many people live in each state. With that information, along with data about race and ethnicity, income levels, family size, and more, the government makes decisions about the distribution of funds for programs like Head Start and free lunch for kids in school. Most importantly, the census determines the number of members each state can send to the House of Representatives.
The 2020 Census, which, according to recent disclosures, might have been tampered with by members of President Donald J. Trump’s administration, revealed that, during the previous ten years, the US population had grown and shifted. Because of expanding birth rates and migration within the country, some states, including Nevada, Utah, and Texas, grew larger while others, including Mississippi, Illinois, and West Virginia, declined in size.
The House, however, does not change size: it remains at 435 seats—as it has since 1919, even though the US population has tripled since then. These 435 seats have to be redistributed so that higher-population states get more representatives, and states that got smaller lose some. The most recent apportionment of the House gave two more seats to Texas and one more to each of five other states. At the same time, California and seven other states lost members.
As we explain in Chapter 5 of Fault Lines in the Constitution, states then determine how to draw the boundaries of Congressional districts. In some states, elected legislators make these decisions; in others, such as Michigan, nonpartisan commissions do so. Allowing legislatures to configure the size and shape of districts can promote mischief, called gerrymandering, in which one party ends up dominating that state’s representation in the House. In effect, representatives choose their voters.
Gerrymandering in favor of Republicans is apparently occurring in Georgia, North Carolina, Ohio, and Texas, among other states. The opposite appears to be occurring in Democratic-leaning states like New York. As a result, the House of Representatives might not be very representative of the views—or race or ethnicity—of the overall people living in these states. In fact, the State Supreme Court of Ohio recently invalidated the Ohio legislature’s districting plan because the justices found that it so unfair as to violate the state’s Constitution. A major theme of Fault Lines is a comparison of the United States Constitution with American state constitutions, which have their own, often unrecognized, approaches to governance.
Chapter 12 of Fault Lines in the Constitution explains how the Electoral College skews presidential elections by giving more weight to less-populated states and, even more importantly, by encouraging candidates to focus on the issues in toss-up “battleground” states, some of which have many electoral votes. Still, whatever one thinks of this system, there is a long-established process for counting the Electoral College ballots and certifying the winner.
Nevertheless, incursions on the US Capitol on January 6, 2021, as well as speeches by former-President Trump suggest that attempts were made to disrupt this process and to install as president the person who lost the Electoral College count. A Congressional Commission is investigating the attack and Trump’s possible role in encouraging it. It appears clearer and clearer that he insisted that Vice President Mike Pence refuse to accept the validity of Biden’s election and throw the decision to the House of Representatives. In that case, the Constitution directs that each state would have one vote. Since Republicans control a majority of state delegations, even if they are a minority of the total number of representatives, Trump would have been returned to the Oval Office, despite having lost the election. The vice president did not go along with the pleas of the then-president, but he was under tremendous pressure to do so.
We won’t venture to guess which of these governmental fault lines is the equivalent of a geological tectonic, volcanic, collapsing, or explosive fault line. We are, though, concerned, that the extent and convergence of these fractures could grievously undermine our democracy.