Tag: Electoral College

There’s nothing hypocritical about calling out the tyranny of the minority

Benjamin Harrison. Photo (cc) 1998 by Monroedb1. Painting by T.C. Steele.

I recently sketched out some ideas for how the Constitution could be rewritten in order to get ourselves out of a dilemma that’s become a crisis — rule by a shrinking minority of voters, grounded in the reality that our smallest states have disproportionate power in the Electoral College and the Senate.

The most immediate result is that we now have a Supreme Court with three members who were chosen by a president who lost the popular vote and confirmed by Republican senators who represented far fewer Americans than the Democrats who voted against them. If that’s not a crisis of legitimacy, I don’t know what is.

After I wrote that post, the feedback I got on Twitter was partly favorable, partly unfavorable. I think the most substantive criticism is that I’m being hypocritical — that I wouldn’t care if the situation were reversed. I’ll plead guilty to one small part of that argument: I’m thinking that the time may have come to trim the Supreme Court’s immense powers, and that’s something that didn’t bother me when it was issuing landmark decisions on reproductive rights and same-sex marriage. (Then again, more rights shouldn’t be controversial since no one is being forced to avail themselves of those rights.)

But for the larger point I was trying to make? No, no hypocrisy. And that’s because the situation we find ourselves in is unprecedented, at least not since the Gilded Age. I recall sitting in the green room a few weeks before Election Day in 2000, waiting to go on “Beat the Press,” when one of the other panelists, Tom Fiedler, started talking about the possibility that the popular-vote winner might lose in the Electoral College. Impossible, I replied. These things have a way of working themselves out. After all, it had been 112 years since Benjamin Harrison, a Republican, had been installed as president despite losing the popular vote to Democrat Grover Cleveland. It wasn’t going to happen again.

Well, we all know how the 2000 election unfolded. George W. Bush became  president thanks to the Electoral College, even though Al Gore won the popular vote. But that seemed like an outlier, and we were all far more riveted by the shenanigans in Florida than we were by the undemocratic nature of Bush’s victory. The belief that Bush stole Florida overshadowed the Electoral College issue.

What drove the Electoral College to the forefront, of course, was the 2016 election, which Hillary Clinton won by nearly 3 million votes. Thanks to the way the vote broke down geographically, Donald Trump won the Electoral College. In 2020, Joe Biden won by 7 million votes — a landslide by modern standards — yet still came uncomfortably close to losing in the Electoral College. It’s not at all inconceivable that the next Republican to win the Electoral College will also lose the popular vote by 8 million to 10 million people.

The Senate is, if anything, even less democratic. Tiny Wyoming (581,000 residents) gets two senators, who are virtually guaranteed of being Republican. California’s 39 million residents are also represented by just two senators, both Democrats. Yet at least in the post-New Deal era, the situation in the Senate was muddled enough that such geographic inequities didn’t really come into play. The Senate was Democratic for virtually all of that time, but the racist Southern Democrats really made the Senate a three-party body. Northern Democrats often worked with liberal and moderate Republicans (yes, there really were some). Coalition-building was possible. The filibuster was rarely used.

In today’s New York Times, Jamelle Bouie, whose writings on the Constitution and the state of democracy are indispensable, has this to say:

As for the constitutional crisis, it is arguably already here. Both the insurrection and the partisan lawmaking of the Supreme Court have thrown those counter-majoritarian features of the American system into sharp relief. They’ve raised hard questions about the strength and legitimacy of institutions that allow minority rule — and allow it to endure. It is a crisis when the fundamental rights of hundreds of millions of Americans are functionally overturned by an unelected tribunal whose pivotal members owe their seats to a president who won office through the mechanism of the Electoral College, having lost the majority of voters in both of his election campaigns.

Our current system favors geography over people and the interests of the minority over those of the majority. This has nothing to do with minority rights. A properly functioning liberal democracy is ruled by the majority with certain rights guaranteed so that government doesn’t deteriorate into a tyranny of the majority. Like, you know, not being forced to quarter troops in your home in peacetime. Or the right to a speedy and public trial. Or the right to exercise control over your own body, or marry the partner of your choosing.

I truly believe that when something can’t go on forever, then it won’t. At some point, the majority is going to rise up and demand change. Imagine what would happen if the next Republican presidential candidate loses the popular vote by 10 million yet wins the Electoral College with the help of dirty tricks in a few Republican states — dirty tricks that are being enshrined into law even as we speak. You can say that Democratic leaders won’t do anything, or won’t do enough. But you know what? It’s going to be taken out of their hands.

I wish you all a great Independence Day — and I look forward to a day when we can all reclaim our independence.

Minority rule is destroying the country. Here are some ideas on how to change that.

There’s something about writing a proposed constitutional amendment that has the whiff of nuttery about it — some guy sitting at home in his underwear (hey, that’s me!) raving about something that has no chance of influencing anyone.

But, having complained quite a bit about our slide into undemocratic minority rule — a consequence of small, Republican states having a disproportionate advantage in the Electoral College and the Senate — I thought I’d lay out one possible solution. Or solutions.

We could move to a parliamentary system, and that would certainly be an improvement on what we have now. But I thought it would be interesting to see what it would look like if we tried something less radical, but still comprehensive. So here we go.

The presidency

  • This one is simple. Abolish the Electoral College. Elect the president by popular vote. One person, one vote should be our lodestar. Let’s end the absurdity of voters in tiny Wyoming having nearly four times as much power as Californians.

Congress

  • The Senate is unfixable because of its two-senators-per state requirement. That makes it far worse than even the Electoral College. Let’s make the Senate a mostly honorary body whose members are appointed by the states. I would restrict the senators’ powers to choosing the wine at weekly social gatherings they would be required to attend.
  • House members should be elected to four-year terms in presidential-election years. No more midterms. House districts would be drawn by nonpartisan commissions. States would be free to set up multi-member districts if they choose. (Actually, they are free to do so now, but no one does.) For instance, Massachusetts could have three House districts instead of nine, and each district would elect three members.

The Supreme Court

  • The nine members would each be appointed to a single 16-year term. Each president would be guaranteed two appointments per term. Proposals to curtail the justices’ power ought to be considered as well, but I’m not going to address that here.

Elections

  • All federal elections would require a majority winner. If the first-place finisher in a multi-candidate field receives less than 50% of the vote, a runoff would be held.
  • Attempts to regulate campaign spending would be deemed not to be in violation of the First Amendment.
  • Needless to say, attempts to restrict the vote of the sort that a number of red states have adopted would be taken out with the trash and burned.

Problem solved! Two hundred thirty-four years of accommodating the former slave states are enough.

Why ‘both sides’ journalism fails in the face of the rising threat to our democracy

Previously published at GBH News.

One president lied about COVID-19 (the country’s and his own), embraced white supremacists and tried to overturn the results of an election that he lost. Another president has hit a few bumps in the road as he attempts to persuade Congress to pass his agenda. Can you guess which one received more negative news coverage?

If you guessed President Joe Biden, then come on down. According to an analysis of 65 news websites, Biden’s treatment by the media was as harsh or harsher from August through November of this year than then-President Donald Trump’s was during the same four-month period in 2020.

On one level, it’s inconceivable. On another, though, it’s all too predictable. Large swaths of the media simply cannot or will not move beyond both-sides journalism, equating the frustratingly hapless Democrats with a Republican Party that has embraced authoritarianism and voter suppression.

“My colleagues in the media are serving as accessories to the murder of democracy,” wrote Washington Post columnist Dana Milbank, who ordered up the study. He concluded: “Too many journalists are caught in a mindless neutrality between democracy and its saboteurs, between fact and fiction. It’s time to take a stand.”

As I’ve written before, and as many others have said, we’re in the midst of a crisis of democracy. The Republican Party, already disproportionately empowered because of the Constitution’s small-state bias and the Senate filibuster (the latter, of course, could be abolished tomorrow), is working to strengthen its advantage through partisan gerrymandering and the passage of voter-suppression laws. The result could be white minority rule for years to come.

The situation has deteriorated to the point that the European think tank International IDEA now regards the United States as a “backsliding democracy.” To quote from IDEA’s report directly, “the United States, the bastion of global democracy, fell victim to authoritarian tendencies itself, and was knocked down a significant number of steps on the democratic scale.”

And the media remain wedded to their old tropes, covering political campaigns as though they were horse races and treating the two major parties as equally legitimate players with different views.

It’s a topic that was discussed at length recently on Ezra Klein’s New York Times podcast by New York University journalism professor Jay Rosen and guest host Nicole Hemmer, a scholar who studies right-wing media. Their conversation defies easy summary (the whole episode can be found here), but essentially, Rosen argued that the political press falls back on its old habits because breaking out of them is just too difficult.

“The horse race absorbs a lot of abuse from people like me,” he said. “But it can take that abuse, because it is such a problem-solver. It checks so many other boxes that even when people know it’s kind of bankrupt, it stays on.” As an alternative, Rosen proposes coverage based on a “citizens agenda,” which he has written about at his blog, PressThink. But he admitted to Hemmer that we may lose our democracy before his ideas are adopted by more than a fraction of journalists.

What I find especially frustrating is that the media have not been ignoring the Republican threat to our democracy. Far from it. As just one small example, the Times on Sunday published a front-page story by Nick Corasaniti on a multitude of actions being taken at the state level to suppress the vote and put Trump loyalists in charge of the election machinery.

“Democrats and voting rights groups say some of the Republican measures will suppress voting, especially by people of color,” Corasaniti wrote. “They warn that other bills will increase the influence of politicians and other partisans in what had been relatively routine election administration. Some measures, they argue, raise the prospect of elections being thrown into chaos or even overturned.”

So why am I frustrated? Because this sort of valuable enterprise reporting is walled off from day-to-day political coverage. We are routinely served up stories about the congressional Republican leaders, Rep. Kevin McCarthy and Sen. Mitch McConnell, going about their business as though they were latter-day versions of the late Bob Dole, sharply partisan but ultimately dedicated to the business of seeking compromise and governing. In fact, whether through cowardice or conviction, they are enabling our slide into authoritarianism by undermining the investigation into the Jan. 6 insurrection as well as by failing to call out Trump and the excesses of their worst members.

Earlier this year, Washington Post columnist Margaret Sullivan endorsed the idea of a “democracy beat,” which would look closely at attempts to subvert voting rights. Sullivan would go further than that, too. “The democracy beat shouldn’t be some kind of specialized innovation,” she wrote, “but a widespread rethinking across the mainstream media,” permeating every aspect of political and governmental coverage.

If Trump runs again, he may very well end up being installed as president even if he loses both the popular vote and the Electoral College. Who would stop him? In the aftermath of the 2020 election, there were still enough Republican state and local officials with integrity who refused to go along with Trump’s demands that they overturn the results. That is not likely to be the case in 2024. As Barton Gellman wrote in a new Atlantic cover story, “The prospect of this democratic collapse is not remote. People with the motive to make it happen are manufacturing the means. Given the opportunity, they will act. They are acting already.”

Meanwhile, the media go about covering President Biden and his travails as though our politics hadn’t changed over the past 40 years. Of course Biden needs to be held accountable. The ugly withdrawal from Afghanistan, confusing White House messaging about COVID and his inability to bring Sens. Joe Manchin and Kyrsten Sinema to heel are all worthy of tough coverage. (But not inflation because, please, don’t be stupid.) But it needs to be done in a way that we don’t lose sight of the big picture. And the big picture is that we are in real danger of losing our country.

As the Dartmouth political scientist Brendan Nyhan put it on Twitter, “The problem is the media failing to distinguish threats to democracy from normal negative coverage (an important form of democratic accountability!).”

Five years ago Thomas Patterson of the Harvard Kennedy School issued a report showing that coverage of Trump and Hillary Clinton during the 2016 general-election campaign had been equally negative — a finding that he found disturbing. Patterson wrote that “indiscriminate criticism has the effect of blurring important distinctions. Were the allegations surrounding Clinton of the same order of magnitude as those surrounding Trump? It’s a question that journalists made no serious effort to answer during the 2016 campaign. They reported all the ugly stuff they could find, and left it to the voters to decide what to make of it.”

Well, here we go again. Next time, though, it’s the future of democracy that is likely to be at stake.

The Supreme Court’s vote to uphold the Texas abortion law is an affront to democracy

Photo (cc) 2006 by OZinOH

In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.

But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.

Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)

The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.

This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.

How minority rule is turning the U.S. into an undemocratic country

Photo (cc) 2014 by the National Museum of American History

This essay was first published in the Media Nation member newsletter. To become a member for $5 a month, please click here.

Like many of us, I worry about the state of our democracy. I write about it from time to time, but what concerns me especially is that it’s almost impossible to see any way out of our dilemma. That’s because we need systemic reform in order to move toward democracy. Not only is it in the interest of Republicans to oppose that reform, but there’s also no way of overcoming their opposition.

Obviously a lot of attention has been focused on Democratic Sen. Joe Manchin’s opposition to getting rid of the filibuster, which means that President Joe Biden won’t be able to pass any of his non-budget priorities through a simple majority. But we all know the problem goes deeper than that, because the Constitution is heavily tilted toward the small-population states, which are overwhelmingly Republican.

At the presidential level, we need to get rid of the Electoral College, a vestige of slavery that resulted in the elections of George W. Bush in 2000 and Donald Trump in 2016 even though they lost the popular vote. Yes, the Electoral College has always been with us. But before Bush, the last time a candidate was elected president despite losing the popular vote was in 1888. Because of shifting demographics, such outcomes have become increasingly likely.

Nor is the problem solely at the presidential level. The 50 Republican senators represent just 43.5% of the electorate, according to calculations by the Daily Kos, whereas the 50 Democratic senators represent 56.5%. That’s an enormous gap, yet between the filibuster’s requirement of 60 votes to move forward on anything and the small-state advantage, Chuck Schumer might as well hand his gavel over to Mitch McConnell.

The House is at least theoretically democratic since districts are drawn on the basis of population. But partisan gerrymandering has resulted in Republicans having more seats to which they should be entitled. That will certainly prove to be a factor in the midterm elections, when the Republicans will in all likelihood regain their majority.

And I haven’t even mentioned Republican efforts across the country to pass voter-suppression laws that would disproportionately affect people of color.

This state of affairs would be bad enough if Republicans were committed to our democratic system. But we can see that they’re not, and their willingness to repeat the Big Lie that Trump won re-election last fall has become a loyalty test within the party.

We can all think of ways to solve these problems, but even to write about them seems like an exercise in futility. The Republicans would block any changes that would diminish their power. And we will continue to move deeper into minority rule.

Long-overdue calls to abolish the Electoral College are finally being heard

What do Benjamin Harrison, George W. Bush and Donald Trump have in common?

Previously published at WGBHNews.org.

The movement to get rid of the Electoral College is having a moment. For the past several weeks, pundits and politicians alike have renewed calls to do away with this 18th-century anachronism and award the presidency to the candidate who wins the most votes.

With Attorney General William Barr’s summary of the Mueller Report dealing a powerful blow to the always-unlikely scenario that Congress would impeach President Trump and remove him from office, the call for Electoral College abolition is likely to grow louder. Democratic presidential candidate Elizabeth Warren has made it a centerpiece of her campaign. Her competitors Beto O’Rourke and Pete Buttigieg agree, while Kamala Harris is leaning in that direction as well.

Buttigieg wrote in a recent commentary for CNN.com that “we need to re-evaluate the role of the Electoral College, which has — in my short lifetime — overruled the popular vote twice. It should be a commonsense position that the person who gets the most votes is the person who wins the presidency.”

New York Times columnist Jamelle Bouie has been especially thoughtful on the topic, nothing that former Maine governor Paul LePage had it exactly right when he complained recently that doing away with the Electoral College would diminish the power of white supremacy. (OK, the notoriously racist LePage didn’t put it quite that way.)

As Bouie argued, and as I wrote here more than two years ago, the Electoral College came about as a way to grant disproportionate power to the slave states of the South so that they would agree to ratify the Constitution. How? Let’s look at the numbers. Each state gets an electoral vote for every House member, plus two bonus votes for their senators. Before the Civil War, the slave states received an artificial — and morally reprehensible — boost in House and Electoral College representation because each slave counted as three-fifths of a person for the purpose of determining the number of that state’s House seats. That advantage disappeared after the Civil War, but the two extra votes for senators continue to give states with the lowest population disproportionate power. For instance, in 2016 voters in tiny Wyoming had nearly four times as much influence as those in California.

There are some myths surrounding the Electoral College that need to be put to rest. One is that the founders favored it because they opposed direct democracy. Boston Globe columnist Jeff Jacoby uncorked that one recently, writing, “The framers of the Constitution devised it deliberately as a check on direct democracy” because they did not want “important national decisions to be driven by unbridled public emotion, populist demagoguery, or the passions of the mob.”

There may have been something to that in the early days of the republic. But the problem with this theory today is that the reality is exactly the opposite of what Jacoby describes. In fact, the president is elected via direct democracy. The electors in each state are not free to exercise their independent judgment and stand fast against “the passions of the mob.” In many cases it is actually illegal for electors to oppose the will of their state’s voters. Not that there’s much chance of that happening given that they are chosen because they’re party loyalists. So we end up with the worst of both worlds — direct democracy, but distorted to favor rural states over the places where people actually live.

Another fallacy is that we’ve always lived with the reality of the Electoral College, candidates have always understood that they need to build a broad coalition of states, and that popular-vote winners who lose in the electoral count have no one but themselves to blame.

Unlike the direct-democracy argument, there is a little bit of truth to this one. “In the Trump era, Democrats are in a perpetual state of panic,” National Review editor Rich Lowry wrote recently in Politico. “They should remember that the electoral map is always changing. Before 2016, it was thought the Electoral College favored Democrats. It shouldn’t be beyond their conceiving that they can win again under the long-established rules of America’s foundational governing document.”

But here’s the problem with that argument:Before George W. Bush’s narrow, controversial victory over Al Gore in 2000, the last time a candidate became president despite losing the popular vote was 1888, when Republican Benjamin Harrison defeated Grover Cleveland, the incumbent Democrat.

That’s 112 years. Surely the public could be forgiven for thinking that the Electoral College — to the extent that they thought about it at all — was some vestigial appendage from the past that they need not worry about. Now, thanks to shifting population patterns, any Democratic candidate starts out with a disadvantage because so many liberal voters now live in a few blue, underrepresented bastions such as New York, California, and Massachusetts.

So what are we going to do about this miserable state of affairs? One possible solution is an interstate compact being pushed by an organization called National Popular Vote, which would require each state’s electors to support the candidate who won the most votes nationwide. But this strikes me as a fool’s mission, as there is no more incentive for small states to join the compact than there would be for them to support a constitutional amendment to do away with the Electoral College altogether.

And, of course, a popular, broad-based campaign can win both a majority of the popular vote and the Electoral College, thus putting the issue on the backburner. Barack Obama did it twice. So did Ronald Reagan.

Ultimately, though, we need to come to a consensus that nothing good comes of a presidency that was flawed right from the start by losing the popular vote. Bush was unable to unite the country except for a brief moment after the terrorist attacks of Sept. 11, 2001. Trump’s problems hardly need to be laid out here. But doing something about the Electoral College will require a bigger politics than we have at the moment. I’ll choose to be optimistic and hope that sometime in the not-too-distant future we can embrace something better.

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Minority rule: Why our undemocratic republic must give way to something else

The founders favored indirect democracy reflecting the will of the majority.

Previously published at WGBHNews.org.

If something can’t go on forever, then it won’t. And so it is with the current state of our democracy, which awards disproportionate power to an ever-shrinking slice of the electorate. Today the president, the Senate, and the Supreme Court reflect the will of a minority of voters. The majority is left out in the cold. At some point that has to change, even if it’s not at all clear how it’s going to happen.

Now, some of you are already sharpening your sticks and getting ready to poke holes in my argument. We’re not a democracy, you’ll say. We’re a constitutional republic. Well, you’re half-right. Living in a constitutional republic means that our democratic rights are sometimes exercised indirectly, and that there are certain protections that the majority may not take away from us. What it’s not supposed to mean is that some people’s votes counts more than others.

I’ll return to that argument later on. But first, as Kai Ryssdal says, let’s do the numbers.

The executive branch. After what happened in 2016, our undemocratic method of electing the president is well known, widely understood, and, at least among Democrats, widely reviled. The Electoral College is a vestige of the past and, as I’ve written before, an artifact of slavery: it gave slave states a louder voice in presidential elections by counting each slave as three-fifths of a person even though they had no right to vote.

That obscenity is long gone. But voters in small states still have more power than those in large ones. Why? In addition to casting an electoral vote for each House district, every state gets two bonus votes (reflecting its two senators) regardless of size. How unfair is that? In tiny Wyoming, each elector represents about 194,000 residents, whereas in giant California the number is 697,000. It is the equivalent of each Wyoming voter’s ballot being counted 3.6 times while those of California residents are counted only once.

Until George W. Bush won the presidency despite losing the popular vote in 2000, the idea that the winner of the popular vote could lose the presidency seemed like a 19th-century anachronism, conjuring up images of Rutherford B. Hayes, known to his contemporaries as “His Fraudulency.” Then came 2016, when Donald Trump won despite losing the popular vote to Hillary Clinton by the not-insubstantial margin of 2.8 million votes. With more and more Democrats and liberals moving to blue states, the gap may only get worse.

The legislative branch. The anti-democratic nature of Congress is most obvious in the Senate, which is marred by the same small-state bias as the Electoral College. Each state, as we know, elects two senators regardless of size. To use our previous example, California’s Democratic senators, Dianne Feinstein and Kamala Harris, represent more than 39 million people, whereas Wyoming’s two Republican senators, John Barrasso and Mike Enzi, represent just 580,000.

That is an absurd situation, far worse than what prevails in the Electoral College, which at least is partly based on population. One consequence of the large-state/small-state divide is that millions more Americans vote for Democratic Senate candidates than for Republicans. For instance, Dylan Matthews noted in Vox several years ago that the 46 Democratic senators who were seated in 2015 had received 20 million more votes than the 54 Republicans. (The Democratic total included two independents, Bernie Sanders of Vermont and Angus King of Maine, who caucus with the Democrats.)

As with the Electoral College, the two-senators-per-state arrangement was rooted in the need to grant greater power to the slave states in order to bring the union together. Today, given that most small states are Republican and most large states are Democratic, Republicans gain a huge advantage.

House districts, at least, are based on population. But gerrymandering by Republican-controlled governorships and legislatures has had its effect there as well. In 2016, for instance, Republicans won 241 of the 435 total House seats, beating the Democrats by 55.4 percent to 45.5 percent. Nationwide, voters favored Republican House candidates by the much slimmer margin of 49.1 percent to 48 percent. That raises the specter that, even if Democrats had received more votes, Republicans still would have won more House seats.

The judicial branch. With the confirmation of Brett Kavanaugh as the ninth justice, the Supreme Court now includes two members who were appointed by a president who lost the popular vote — that is, President Trump. (George W. Bush appointed Chief Justice John Roberts and Justice Sam Alito only after his 2004 re-election, in which he won both the popular and electoral votes.)

Moreover, both of Trump’s nominees were confirmed by senators who received far fewer votes than the senators who opposed them. Michael Tomasky recently observed in The New York Times that in the case of Trump’s first choice, Neil Gorsuch, the 54 senators who voted to confirm him received 54 million votes whereas the 45 senators who were opposed won more than 73 million. That’s a margin of 58 percent to 42 percent against confirmation. The Kavanaugh confirmation vote broke along similar lines. Indeed, Philip Bump of The Washington Post estimated that the senators who voted to confirm Kavanaugh represented just 44 percent of the population.

In other words, reproductive rights, same-sex marriage, and other liberties are now at risk because of two justices who were appointed by a president who lost the popular vote, and who were were confirmed by senators who received far fewer votes than those who were opposed. Is this any way to run a democracy in the 21st century?

And yes, let’s get back to that democracy-versus-republic argument. What does it mean to live in a constitutional republic rather than a democracy? It means that we don’t make laws directly — we let Congress do it. It means there are certain rights that even a majority can’t take away from us (except through a constitutional amendment), whether it be freedom of speech, the right to bear arms, or the right to a speedy and public trial by jury.

As Harvard Law School professor Lawrence Lessig wrote two years ago, the “we’re a republic” retort favored by defenders of the Electoral College is nonsense. The founders defined a “republic” as a representative democracy rather than a direct democracy, not as a non-democracy. James Madison, Lessig pointed out, said that “in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents.” (Lessig, I should add, is the force behind an intriguing idea to reform the Electoral College.) That doesn’t mean the minority gets to rule while the majority gets to shut up. It means the majority exercises its will indirectly rather than directly.

Writing in Philly.com, columnist Will Bunch offers some useful ideas to reform our anti-majoritarian system, ranging from abolishing the Electoral College to ending the two-senators-per-state arrangement.

Bunch goes so far as to compare our current situation to the run-up to the Civil War. “Let’s once again radically fix the way America does its business — this time, before a civil war breaks out,” he writes. That strikes me as hyperbolic, but maybe he’s right. We are facing a crisis of legitimacy We do not have a government of the people or for the people when any — or, as is now the case, all — branches of government exercise power against the wishes of most Americans. Because the status quo can’t be maintained, it won’t be. The only question is how we’ll fix a system that is irredeemably broken.

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The Electoral College and the legacy of slavery

Illustration via Wikimedia Commons.

Is the Electoral College a vestige of slavery? It’s a question that has been debated from the moment it became clear that Donald Trump would become the next president despite losing the popular vote to Hillary Clinton.

An answer that will satisfy everyone is not possible. But a provocative law-journal article published in the aftermath of George W. Bush’s victory over the 2000 popular-vote winner, Al Gore, strongly suggests that slavery is indeed at the root of it. With the Electoral College scheduled to ratify Trump’s victory on December 19, it’s time to take a look at how and why this strange institution was created.

Read the rest at WGBH News. And talk about this post on Facebook.