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.
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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.
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.
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.
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.