CounterPunch Exclusives

CounterPunch Exclusives

The Founders’ Fix: How Expanding Congress Could Save Minority Voting Rights

Photo by Darren Halstead

The dismantling of the Voting Rights Act begun by the Supreme Court in the case of Shelby County v. Holder in 2013 was completed this last month by Louisiana v. Callais. Callais has raised the legal bar for drawing majority-minority districts, one of the last remaining tools to redress systemic racial discrimination in voting, to impossible heights. What remains of the Voting Rights Act of 1965 is but a symbolic husk, lacking the most essential element of any law, the power of enforcement.

Liberal commentators have piled on to condemn the court and have called for court reform, advocating term limits and even court packing in the tradition of F.D.R.. But few have noted that there is another avenue to preserve and even expand the representation of minority voters in America: Congress could also pack itself.

Many theorists have calculated that increasing the size of a legislature in a pluralistic society significantly increases the representation of minority communities and makes it far harder to gerrymander them into silence. As districts become smaller the number of people necessary to constitute a majority also falls and crafting districts to divide particular communities becomes more difficult.

Underlying the problem that the Voting Rights Act attempted to solve is the mismatch between an architecture of American democracy that grants all representation and power to the majority and none to anyone else, even someone receiving the votes of 49.9% of the citizenry. This majoritarian bias was not considered a problem by the Founders who excluded nonwhites from citizenship, voting, and most civil rights thereby allowing for the shifting coalitions that Madison envisioned being the axis of politics in Federalist #10.

Political theorists have proposed several solutions to provide for minority representation in winner-take-all electoral systems. Lani Guinier famously proposed ranked-choice voting and others have proposed other forms of what political scientists generically refer to as ‘cumulative voting’ systems.[1] The tricky part of all these schemes is that Americans have come to associate territorial representation with democracy itself and view systems of Parliamentary or “at large” representation to be less legitimate.

A simpler solution to the closure of a majoritarian system to minority voices is the one that the Founders envisioned, but was smashed by the twin hammers of racism and nativism in the 1920s. This is growing the size of Congress proportionate to the population.

The Supreme Court’s favorite founder, James Madison, was adamant that the lower chamber of the new government be proportioned to the growing population of the nation: “If the power is not immediately derived from the people, in proportion to their numbers, we may make a paper confederacy, but that will be all.” Madison got his way and Article I, Section 2, of the Constitution tied the number of seats in Congress to the populations of the states: “Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective Numbers.” Later, in lobbying for the blueprint of government in The Federalist Papers, he wrote, “I take for granted … that the number of representatives will be augmented from time…” and predicted that the House of Representatives would in fifty years multiply to four hundred. Though he was off by half and the four-hundred threshold wasn’t passed until 1910, his optimistic forecast shows how relatively large numbers (the first Congress had but 65 members) did not give him pause.

Article I did set a floor on the size of Congress, stating that the ratio of representation could not “exceed one for every thirty Thousand” people. Were that ratio in force today the 11,036 members of Congress could only be accommodated in one venue in the District, Capital One Arena when the Wizards or the Capitals are away. Madison did believe there was a number at which the legislature would become unwieldy and argued that it should “be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude.”

America’s first Congress thought keeping proportional to the population was so important that it took up drafting an automatic apportionment amendment to the Constitution before adopting the other ten amendments that contained the Bill of Rights. This original First Amendment to the Constitution was passed and sent on to the states where it failed just one vote short of being adopted. The Congressional Apportionment........

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