On Four-year Terms Of Parliament, And On How The US Courts Are Dismantling Democracy

Last week, the issue of four-year parliamentary terms surfaced again. Infuriatingly, it is being discussed purely in terms of its convenience for political parties. They’d get so much more time to enact their policies, free of scrutiny or sanction by voters for longer. What’s not for them to like? So far, there has been so sign of what the public would receive in return. More efficiency? Yeah right. But “efficiency” is not your friend.

Almost uniquely among developed countries, New Zealand has a threadbare system of checks and balances. It has a single chamber of Parliament. It has no written Constitution and no entrenched Bill of Rights, thereby limiting the watchdog role of the courts. At best the Supreme Court and/or the Attorney General can declare this or that measure “inconsistent” with the Bill of Rights, and the ruling party can and often does, ignore such advice. On the 2010 decision by the National government to remove convicts’ right to vote that’s exactly what had happened:

The High Court found that the law was an unjustified limit on rights. Indeed, the Attorney-General had already concluded that in his report to Parliament before the law was passed.

So much for that “protection”. In fact, New Zealanders voted in the MMP system to prevent the excesses of majoritarian rule that occurred in the 1980s from ever happening again. Yet even the rules governing MMP inhibit democracy. They require an extremely high threshold of 5% before the public can see its choices reflected in parliamentary representation.

Twice before and at considerable cost, voters have rejected four year terms. If, out of self-interest, the political parties are going to put this proposal up again, the public will need to know what it stands to receive in return. At the very least, the MMP threshold would need to be dropped to say three per cent, or lower. Beforehand, the Bill of Rights, now 30 years old, would need to have been reviewed, and strengthened. And the alleged efficiency gains from a four year term would need to be proven, and not simply stated as a virtue of benefit to all.

Yes, we are among the few developed countries to have only a three year parliamentary term. But that’s mainly because we are also among the few developed countries with such paltry checks and balances on the power of the Executive. A three year term is our best protection against political excess. We shouldn’t just give it away, for free.

Courting disaster

Talking of checks and balances..,so far, the media coverage of the attempts by the Trump administration to undermine the US election has focused on Trump’s efforts to discredit mail-in voting, and to cripple the ability of the US Postal Service to handle the mail traffic this will involve. Less attention has been given to the role of the courts. At best, the focus has existed has been almost exclusively on the Senate’s ratification of the Amy Coney Barrett nomination to the Supreme Court.

True, Barrett’s confirmation will create a 6-3 conservative majority on the Supreme Court that will endanger the1973 Roe v Wade precedent on which the right to abortion is based. Unfortunately, that grave concern has overshadowed the extent to which the Trump administration has been quietly stacking the lower courts with appointments that pose a serious threat to US democracy. Systematically, voting rights across the United States are being undermined.

Florida offers a classic example of how this subversion is being carried out. In every US election for the past 25 years, Florida has been a key swing state. Two years ago, voters voted heavily in favour of allowing felons – previously disenfranchised for life from voting, even if their offence was committed when they were 18 years old – to regain the right to vote. Theoretically, this would have put 1.5 million former felons back on the electoral rolls. Obviously not all of them would have registered, or voted. Still, given that since 2000, elections in Florida have been decided by mere tens of thousands of votes, this change might have had a significant impact on the Florida outcome, and nationally.

To shut off that possibility, the Republican state legislature quickly added a rider to subvert former felons from exercising this new right to vote. To do so, former felons would first need to repay all the court costs associated with their convictions. In many cases, this would reportedly amount to tens (or hundreds) of thousands of dollars, amounts that would be clearly beyond the ability of impoverished former felons, many of whom have subsequently struggled to find employment. This measure – in effect, a poll tax- has bounced back and forth through various court challenges until two months ago, it reached the 11th Circuit Court of Appeals, a bench to which the Trump administration has made six appointments since 2017.

Unsurprisingly, the 11 Circuit has found in favour of the Republicans. It upheld the poll tax. , So, despite the re-enfranchisement of former felons being the clear desire of the Florida citizenry, the conservative appellate court has upheld the effective denial of their right to vote. As mentioned, this could well tip the election result in Florida – and by extension, nationwide – in favour of a Republican victory. Moreover, there is no readily available register of court costs. Former felons in Florida cannot find out whether they owe anything, and how big the amount may be. Therefore, if they risk casting a vote, they will also risk committing a further felony.

The Roberts Supreme Court

The 11th Circuit decision is headed for the Supreme Court. No prizes for guessing how the Supremes will rule, eventually. Even before Amy Coney Barrett appeared on the horizon, the Supreme Court headed by John Roberts has been steadily stripping away the constitutional safeguards on the right to vote. Among other things, this track record makes a mockery of conservative claims to be devoted to ‘originalist” readings of the US Constitution, in line with the alleged intentions of the Founding Fathers. (If the Founders were clear on anything, it was on protecting the right to vote.)

Instead, the Roberts Court has systematically eroded those rights, starting with its Shelby decision in 2014. Shelby effectively gutted the Voting Rights Act of 1964, the prime achievement of the civil, rights era. The Voting Rights Act had ensured federal policing of those states – not all of them in the South – that used racist measures to disenfranchise (primarily)black voters. The Roberts court declared in Shelby that such protections were no longer necessary, thereby re-opening the door to abuse in states like Georgia, Alabama, the Carolinas and beyond.

Via Shelby, the Supreme Court also winked in a wider sense to the states that whatever measures the states used to disenfranchise minority groups, this would probably be OK with the Court. In its similarly infamous Citizens United decision on political funding, the Roberts Court effectively enabled US corporates to buy US elections.

There are many such dubious practices in play at this election. The Brennan Center – always the prime location for reliable voting rights information and analysis – has a state by state update of the voting litigation currently in train. In the swing state of Pennsylvania the Republican state legislature has required the mailed in ballot envelope to be itself enclosed in a second “security” envelope. If it lacks the second envelope, the ballot faces being rejected, thereby disenfranchising an estimated 100,000 people in a state won by Trump in 2016 by only 44,000 votes. In Arizona, the Democratic Party seems to be losing its courtroom appeal against a legal ruling that voters who have failed to sign an otherwise valid ballot should not be asked and allowed to confirm their identity – even though the ballot envelope contains a phone number expressly meant to allow such clarifications of intent.

And so on. Point being, the courts are increasingly deciding the shape and the scope of American democracy. To a lopsided extent and in different parts of the country, those decisions are being handed down by Republican-appointed justices, whose judicial bent is to allow the states free rein to narrow the channels for democratic expression.

Footnote: In the Trump vs Biden presidential debate, Trump alleged that Barack Obama had ”left” unfilled well over a hundred judicial appointments. But as the debate fact checkers at the New York Times pointed out, Obama was not the cause. The Republican controlled Senate had simply refused to ratify Obama’s nominations, thereby creating a logjam that has since turned into a torrent of ratifications under Trump.

How effective was this refusal by the Republicans to allow Obama to validly exercise his presidential powers? Very. If you look at the percentages of appellate and district court judicial appointments made in the last two years in office of previous presidents you get these figures: Reagan (20% appellate, 23% district court) Clinton (24% and 19%) and George W. Bush (17% and 22%) - all of which stand in stark contrast to Obama, where the comparable figures are only 4% and 7%. Basically, the Republican-controlled Senate re-wrote the rulebook on appointments to the nation’s judicial benches, and tilted representation in their own favour.

Trump has been enabled to confirm three Supreme Court nominations. As of February 2020, he had also appointed 51 appellate court judges, 133 district court judges, and two U.S. Court of International Trade judges since his inauguration in January 2017. For a generation to come, the US courts will be handing down judicial decisions made by Trump appointees, via a path to ratification held open only to them.

Footnote Two: Finally the Supreme Court is due to make two other crucial rulings. Originating in Arizona, there are these two pending cases:

It’s difficult to exaggerate the stakes in Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee. The cases involve two Arizona laws restricting the right to vote. One law requires ballots cast in the wrong location to be tossed out, while the other prevents individuals from delivering another person’s absentee ballot to the elections office. [eg from nursing homes.] But as these cases arise under the Voting Rights Act — a seminal law preventing racist voting laws, that the Supreme Court has already weakened considerably — they provide a conservative-majority Supreme Court the opportunity to dismantle what’s left of the Voting Rights Act.

Both these Arizona measures impact more heavily on people from ethnic minorities :

As a federal appeals court explained in an opinion striking down the two laws, “uncontested evidence in the district court established that minority voters in Arizona cast [out of precinct] ballots at twice the rate of white voters.” And Hispanic and Native American voters are especially likely to rely on a third party to ensure that their ballot is cast.

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