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Below is a complimentary Demography Unplugged research note written by Hedgeye Demography analyst Neil Howe. Click here to learn more and subscribe.

Most Americans Favor Major Electoral and Judicial Reforms - 10 30 2020 8 44 32 AM

According to a new poll, the majority of American adults are in favor of major electoral and judicial reforms. These include expanding the Supreme Court, enacting term limits for justices, and eliminating the Electoral College, with the highest levels of support coming from those under age 40. (UMass Lowell Center for Public Opinion)

NH: Millennial voters are the most likely to support the Democratic-backed reform ideas mentioned in this poll. No surprise there. What’s notable is that the overall public isn’t far behind. 

Fully 66% of Millennial voters favor expanding the number of justices on the Supreme Court from nine to 13, compared to 52% of respondents overall. 79% of Millennials support eliminating lifetime appointments and limiting the amount of time that justices spend on the court, compared to 72% of respondents overall.

This poll was taken after President Trump nominated Amy Coney Barrett to the court, which was his third appointment of a Supreme Court justice during his term of office

When it comes to eliminating the Electoral College in favor of a national popular vote, Millennials also lead the way in support (at 64%), and a majority of the public (58%) backs this as well. Meanwhile, 61% of Americans--and 71% of Millennials--believe that the U.S. would be better off with more than two competitive parties.

The same pattern holds for reforms that would make it easier to vote. Most of the public supports allowing people to register to vote at the polls, “no excuse” absentee balloting in future elections, and registering people to vote automatically whenever they interact with a state agency like the DMV. Another left-wing proposal that enjoys majority support--though by a much slimmer margin--is cancelling all student loan debt.

Fully 52% of Americans support this idea, including 66% of Millennials, 51% of Gen Xers, 38% of Boomers, and 31% of the Silent.

Again, some of these results are influenced by recent events--like the Amy Coney Barrett confirmation. But most of them reflect a growing dissatisfaction with our political system that has been building for years. Only 24% of Americans said they can trust the federal government to do what’s right “just about always” or “most of the time.” The remaining share (76%) chose “some of the time” or “hardly ever.” In a VICE News/Ipsos poll, nearly three-quarters of 18- to 30-year-olds agreed with the statements “our democracy is broken” (73%) and “the economy is rigged to advantage the rich and powerful” (74%). (See “Global Millennials: Down on Democracy and Drawn to Populism.”)

OK, most of the public wants to big judicial and electoral reforms. So will they happen? IMO, the odds for some are better than for others.

The idea of eliminating the Electoral College is probably the most popular, and reforms that would do just that have been floated almost since the dawn of the republic. There have been at least 700 proposals to abolish those much-hated Electors.

The obstacle? Reform requires a constitutional amendment, which in turn requires a 2/3 vote in both houses of Congress plus ratification by 3/4 quarters of the states.

So long as the current distribution of Electors so clearly favors one major party--right now, the Republican Party--it is hardly conceivable that reformers could muster such approval. Beyond self interest, Republicans can always argue that the current system was part of the "federalist deal" that the founders made with America's quasi-sovereign states in 1787. It's the same reason why every state, big or small, has the same number of senators.

What about changing voter registration procedures? Here, prospects for reform are better. Although the states do retain the right to set their own voting procedures under the Constitution, they share that right with the federal government. (See Article 1, Section 4.)

Moreover, the federal government has long "assumed" the power to overrule state law on any matter touching upon equal rights and due process. That's how Congress has justified other efforts to expand access to voting in all states, as in the National Voter Registration Act of 1993.

As for changing the number of justices on the Supreme Court, well, there's no constitutional impediment here at all. Congress has always retained the right to expand or shrink the number of justices. And until 1869 the number of justices on the Court changed seven times, with the total ranging from five to 10.

The big question here is whether Congress could ever bring itself to cross this Rubicon. Let's imagine, for example, that Biden wins the White House and the Democrats take the Senate. There will be urgent calls for the Democrats to blow through the filibuster rule and enact an expansion of the Supreme Court with a majority vote.

But I suspect cooler heads will prevail on the Democratic side. By enlarging the court, the Democrats will know that the GOP will be able to enlarge it even further when they take over. Once exercised, it's hard to see how or where this discretion could ever be restrained again.

There is a relevant historical precedent. President Franklin Roosevelt, during his first term, complained bitterly about how many of his "New Deal" initiatives, including the NRA and the AAA, were being struck down the Supreme Court. He lashed out in particular against four arch-conservative justices--"the four horsemen of reaction"--who systematically blocked all of his economic legislation. After getting re-elected in 1936 with a massive popular vote margin, FDR floated the proposal to expand the Supreme Court by adding up to six new members.

Surprisingly, few Americans responded favorably to the idea--neither the public nor the leading Democrats in Congress. The proposal was quietly tabled.

A few months later, however, the Supreme Court seemed to get the message, and the two swing justices began to change their votes in a pro-New Deal direction. (This is known as the "switch in time that saved nine.") Not long thereafter, the "four horsemen" either died or retired, enabling FDR to appoint eight new justices during his four terms.

The lesson for Supreme Court reformers is this. Legislators who look forward to long careers are naturally averse to employing weapons today that can so easily be used against them tomorrow. Yet justices with life tenure are also looking down the road. And they too understand that the very legitimacy of their court may be undermined by decisions that are way out of line with public attitudes.

Concern for democratic legitimacy acts like a gravitational force pulling most justices over time--and today these probably include Roberts, Gorsuch, Kavanaugh, and Barrett--away from polarizing rulings if they can at all help it.