We have several serious constitutional crises underway. They are serious and intertwined, but remediable.
Second, Republicans have given up on democracy. They seek to tailor the electorate through voter suppression and undermine the administration of elections, thereby insulating themselves from accountability. In place of the American creed that “all men are created equal,” Republicans want to define America as a White, Christian nation and use the power of government to uphold their values (e.g., a fetus is a “person,” anti-gay merchants can deny services, employers can deprive employees of access to contraception), often under the banner of “religious liberty.” They are even willing to encourage violence to achieve their goals.
Third, through the operation of a Senate heavily weighted toward less populous red states, the electoral college, extreme gerrymandering and the filibuster, we have moved from democracy with minority protections to a tyranny of the minority. Our democracy is becoming less and less representative of a diverse population. Republicans now wield their power to prevent accountability for crimes against our democracy (e.g., by refusing to establish a Jan. 6 commission) and to disable reforms for election integrity.
There is no easy way to interject greater democracy — and hence more accountability — into our system. The Senate and electoral college are not going away. And for the foreseeable future, Republicans will not abandon their authoritarian, might-makes-right outlook for self-restraint, tolerance, reverence for the rule of law and fairness. But that does not mean democracy’s defenders are without recourse.
Pro-democracy advocates can make this an issue in the election. Do we really want to entrust power to a party that tolerates anti-democratic extremists and foments violence? Will Republicans on the ballot acknowledge that President Biden won and vow to respect election results?
Beyond that, pro-democracy forces can focus on institutions where majority rule still applies. Gubernatorial elections in 2022 (of which there will be more than 30) are critical. Democratic governors exercise veto power over hyperpartisan state lawmakers on everything from voting restrictions to abortion bans, even if they do not enjoy state legislative majorities. Donors would be wise to emphasize these races as well as critical contests for secretaries of state. Excessive focus on national races has left democracy at the state level vulnerable.
If pro-democratic forces have narrow legislative majorities and cooperative governors, they can move forward on other democratic reforms such as the National Popular Vote compact, which would award electoral votes to the national popular vote winner. States and other jurisdictions representing 195 electoral votes have already signed on, so the compact only needs 75 more electoral votes for it to take effect. States have passed the compact in at least one chamber in nine additional states representing 88 more electoral votes.
Even without support from governors or state legislative majorities, voters can fight for the popular vote compact. Last year, Colorado passed a popular vote referendum. In Michigan, which has 16 electoral votes, a referendum to support this shift may reach the ballot.
Ultimately, most problems come back to the Senate filibuster, which heightens minority control in an already non-majoritarian body. Democrats are already debating an exception or workaround for the filibuster to protect the fundamental building blocks of democracy (e.g., voting reform). The need to prevent election subversion, close loopholes in the Electoral Count Act and protect nonpartisan election administrators becomes more urgent as Republicans intensify their state-level assaults on elections and continue to defend the "big lie".
And the need to protect fundamental constitutional rights clearly goes beyond voting. Sen. Susan Collins (R-Maine), who was apparently snookered into putting anti-choice justices on the Supreme Court (or, more likely, did so to avoid a primary challenge), now wants to pass a statute preserving abortion rights in federal law. Talk about locking the barn door after the horse is out. Such a bill will never find 10 Republican votes; if she is serious about repairing the damage she has done to reproductive rights, she too should be amenable to a filibuster workaround.
What would that look like? It could, for example, allow the Senate and House to pass legislation by simple majority to correct or reverse a discredited Supreme Court decision affecting constitutional rights. This would allow Congress to restate the parameters of Section 2 of the Voting Rights Act, thereby negating Justice Samuel A. Alito Jr.'s made-up “guideposts” that undermine voting rights legislation. And it would allow Congress to reauthorize Section 5 of the VRA, which Chief Justice John G. Roberts Jr. erroneously decided was unnecessary, since states with a history of voting discrimination were supposedly beyond that sort of thing. And should the court gut abortion rights, the House and Senate by a simple majority would be able to pass a statute preserving the constitutional right to an abortion in federal law.
In short, informed voters can halt the atrophy of democracy through ballot referenda and in gubernatorial races (where gerrymandering is inapplicable). In the Senate, senators such as Joe Manchin III (D-W.Va.) and a politically humiliated Collins can step up and secure constitutional rights. These actions will not be easy, but they are essential to preserve our democracy.