Voting boothsWith Election Day 2018 recently behind us, now is a good time for us lawyers to think about the gap between the ideals and reality of American democracy.

A gap between American ideals and American reality has always existed.  At our founding, almost 250 years ago, we declared all men created equal but kept millions enslaved and did not allow women to vote.  Since then we have boasted of our country as a land of equal opportunity and meritocracy, but even today inherited wealth and alumni legacies create vast economic disparities not based on individual merit or talent.  And now we have yet another yawning gap between the ideals and reality of a fundamental American conceit: democracy itself.

The Democratic ideal is at the heart of the American experiment.  Self-government is what our Revolution was all about.  Here, we the people supposedly rule.  Lincoln described it as a government of the people, by the people and for the people.  Democracy!  It has always been a patriotic rallying cry.  A hundred years ago we went to war to “make the world safe for democracy.”  In 2003 we went to war to “export Democracy.”

But is our Democracy so ideal?  Is it worth exporting?  Is it even real?  Is it endangered?  What do we even mean by Democracy?

A good way to answer these disturbing questions is to go back for guidance to one of the greatest yet least widely known speeches in American history.  In 1852, the famous escaped slave Frederick Douglass gave a powerful and eloquent speech about American hypocrisy.  Invited to speak at an Independence Day celebration in Rochester, New York, Douglass delivered more than was expected.  He titled his talk “What to the Slave Is the 4th of July?” Douglass started off in traditional Fourth of July fashion, praising at length the founders for their courage, foresight and wisdom.  He complimented and admired the “truly great men” who signed the Declaration of Independence as “statemen, patriots and heroes” who “loved their country better than their own private interests.”  But then he pivoted.  His speech took an unanticipated turn, a turn that, even when read today, startles the mind and sears the conscience.

After such a glowing backward look at 1776, Douglass shifts to his present.  He considers the terrible plight of the slave in antebellum America and then thunders at his listeners: “Your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery . . . bombast, fraud, deception, impiety, and hypocrisy.”  With all the force and harsh memory of his own life experience, he goes on to describe slavery to his northern audience as the worst example of “your national inconsistencies.”  Yet he predicts that “there are forces in operation, which must inevitably work the downfall of slavery . . . the doom of slavery is certain.”

Douglass spoke these prophetic words nine years before the Civil War began and eleven years before the Emancipation Proclamation.  For an American to read Douglass’s brilliant speech today is a chilling but important and embarrassing experience.  If you have never read it, you really must.  You owe it to yourself.  You will never forget it.  It is on a par with the Gettysburg Address and Martin Luther King’s “I Have a Dream.”  You will admire Douglass’s rhetorical skill and depth of feeling.

What is more, you will find yourself thinking about how Douglass’s speech applies to America today.  In 1852, the great American hypocrisy was the gulf between professed equality and actual slavery.  But, thankfully, slavery itself is long gone, though, sad to say, not all of its vestiges.  Now, however, America’s hollow mockery is the huge chasm between Democracy and the disenfranchised voter.  Where is today’s Frederick Douglass to decry the bombast, deception, irony, hypocrisy and inconsistency of the American electoral process?

What is Democracy?  Regardless of how political scientists define it, elections are what we Americans mean by Democracy.  Whether we call our particular form of government a Democracy or a republic, the major premise is the same: representative government.  Here the people choose who will govern them, and we do so by means of free elections.  America defines Democracy by the electoral process.  The Constitution, our foundation document, sets up a government based on elections.  It is how we exercise self-government.  It is what too many Americans have bled and died for.

But what if the integrity of the electoral process in America today is doubtful?  If so, then so is the meaning of Democracy itself.  That is really America’s current and most fundamental crisis.  And the truth is that the integrity of the electoral process in this country is more than just in doubt; it has been seriously compromised, maybe even broken, so much so that calling it Democracy makes one wonder if the label is a misnomer.

How can we today honestly and accurately brag about our democracy?  It is open to withering criticism in several ways.

  1. Voter Suppression. One would think that a Democracy would seek to have as many people as possible vote.  But in some places in America, we do the opposite.  We actually erect obstacles to voting.  We make it hard to register, we purge voter rolls, and we pass voter identification laws.  We do this all in the name of imaginary voter fraud.  Whether such steps are taken simply to favor one political party or are racially motivated, they are not Democracy.  In some parts of the country, they appear to be a legacy of slavery.
  2. Extreme Gerrymandering. One would think that the drawing of bizarrely shaped electoral districts to favor one party or another would have disappeared fifty years ago when the Supreme Court ruled on the one-person one-vote cases.  Why should a partisan state legislature, rather than an independent non-partisan commission or special master, draw district lines?  While we can understand why one party may want to stay in power, how can we as a democratic people tolerate such obvious and transparent rigging of the system?  Why the courts, especially the Supreme Court, have not eliminated this warping of a democratic process long ago is a nagging question.
  3. Undisclosed Campaign Money. The 2010 Citizens United case trivialized the integrity of the electoral process.  That controversial decision held that corporations, as long as they did not contribute to a candidate’s actual campaign, could spend unlimited amounts of money on advertisements and other political tools calling for the election or defeat of individual candidates.  But money distorts elections; it’s that simple, and we all know it.  Citizens United relied on the mistaken premise of the 1976 case of Buckley v. Valeo that political spending is constitutionally protected as akin to free speech.  From there, the court in Citizens United dubiously ruled that corporations have First Amendment rights.  Then Citizens United multiplied and compounded the errors by failing to see the integrity of the electoral process as itself a constitutional value that outweighs the so-called right to donate unlimited sums for political purposes.  Eventually Buckley and Citizens United will be overruled, it is only a matter of time.
  4. Dirty Tricks and Campaign Fraud. The rough and tumble of American elections is one thing, dirty tricks and campaign fraud is quite another.  The laws regulating the integrity of political campaigns should be strictly enforced with severe penalties for violations.  If Democracy is one of our highest values, should not an attempt to infringe on it merit equivalently harsh punishment?  If we lightly punish, say, election fraud, does not that send the wrong message: that we do not think Democracy is that important?
  5. The Electoral College. Twice in the last 18 years, the presidential candidate with more popular votes lost because of the Electoral College.  Whatever value or purpose the Electoral College served at our nation’s founding, it no longer serves any useful purpose.  The Senate gives each state, regardless of population, the same two votes.  Small states do not also need the Electoral College to give them outsized power and influence.  The Electoral College merely thwarts the will of the people in the single most important national election.  But the Constitution created the Electoral College, and it will take a constitutional amendment to abolish it, or at least a compact among large states to eliminate its baleful impact.

Given these distressing flaws in our Democracy, we might ask, echoing Frederick Douglass, what to the disenfranchised voter is Democracy?  With hope and luck, maybe we can paraphrase Douglass further, and predict that there are forces now in operation that must inevitably work the downfall of those flaws.  The doom of voter suppression, extreme gerrymandering and the rest is, if we want it badly enough, certain.  We lawyers have the opportunity, the burden, and the skills to make it happen.

Daniel J. Kornstein is a partner at Emery Celli Brinckerhoff & Abady.