By Steven Hill, DemocracySOS, June 28, 2022
Recent Supreme Court rulings are the latest examples of a future under “minority rule”
Over the last few months, we have slowly awoken to a troubling new world. The unfamiliar America that is emerging has become post-Roe, post-gun control, post-safe schools, post-Supreme Court impartiality, post-majoritarian and possibly post-fair elections (we shall see in November and in 2024). The US, which has been teetering on the edge of a cliff for some time, is now starting to tip into an abyss of “minority rule medievalism.”
Previously in my book Fixing Elections: the Failure of America’s Winner Take All Politics, published in 2002 following the debacle of the 2000 presidential election meltdown, I warned that if we didn’t take care of business and repair our extremely flawed and unrepresentative democracy, we would at some point veer into a dangerous minefield that I called “post-democracy.” Now, twenty years later, we are perilously close to reaching this singularity of no return.
Fortunately, we can pinpoint the reasons this is happening. And having identified the reasons, we can plot a corrective course. The current struggles are not so much due to extreme divisions within and among the American people, who are not as divided as it might appear. Rather, they are a product of the failure of our antiquated, 18th-century political system to translate majority opinion into policy and law.
But it will not be easy to reform our clanking political system. Reform efforts will require more attention from more people than ever before. While there are many important issues that affect our lives and that the US must solve, there is one issue that is fundamental to all of them – having a functioning democracy. If we don’t fix this one we will never solve climate change, inequality, balanced gun control or ensure the sanctity and security of our elections. This one is the root of the tree, and it is increasingly clear that it is rotten. We are running out of time to fix it.
The end of majority rule?
Majority rule, the notion that a constituency with more than half the popular support should be able to decide policy—and should not be dominated by a group that has less than half support—is one of the bedrock principles of representative government. Alexander Hamilton in Federalist 22 said a fundamental maxim of democratic government required “that the sense of the majority should prevail.” Yet today the US violates this sacred imperative on a regular basis. Our political system has evolved over the last several decades so that its flawed and antiquated institutions continually frustrate that Hamiltonian standard, fostering a dangerous experiment with “minoritarianism.”
Let’s look at our key democratic institutions, and the threat that each of them pose to our representative democracy. First I present the diagnosis; then I offer the remedies.
US House of Representatives. In the “People’s house,” a number of analyses have shown that, for the Democrats to win a bare majority of seats, they often must win well more than half of the nationwide popular vote in all 435 House district seats. In some election years, such as 2012 and 1996, the Democrats won the national popular vote but Republicans won House majorities. However don’t feel sorry for Democrats; in previous decades, the Republican Party was consistently cheated out of seats due to such votes-to-seats distortions, losing as many as 43 House seats in 1976, and losing an average of twenty-seven seats per congressional cycle from 1976 through 1988.
Today’s imbalance is due to natural partisan demographics, in which Democratic voters increasingly live in more concentrated urban districts, making it easier to pack them into fewer districts during partisan redistricting. The resulting one-party fiefdoms ensure predictable outcomes, a decline in competition in all but a handful of districts, and declines in voter enthusiasm and turnout.
Partisan control over redistricting magnifies this effect. After the red wave election of 2010, Republicans took over many state legislatures and drew more than five times as many House districts as Democrats. In the redistricting of 2022, the GOP controlled the drawing of lines for 2.5 times as many seats as Democrats. For that reason, a number of experts are predicting that Republicans will take back the House in 2022 (unless a huge pro-Roe mobilization leads to Republican defeats).
Doubly magnifying this effect, with 90 percent of legislative districts often heavily lopsided in favor of either Democrats or Republicans, then the only election of real consequence is the partisan primary election that nominates the candidate of the party that dominates that district. And those primaries usually have extremely low voter turnout, often around 20-25%, with the most motivated and hyper-partisan voters showing up. Consequently, a report from Unite America found that just 10% of eligible voters nationwide cast ballots in primaries in 2020 that effectively decided 83% of U.S. House races. That’s minority rule run amok.
US Senate. The structural bias in the upper chamber is even more severe than in the House. Because every state receives two senators, regardless of population, Wyoming with a half a million people has the same representation as California with 40 million. At our country’s founding, this large state-small state bias was around 12 to 1, now it’s closer to 80 to 1. Moreover, in the last few decades, the two parties have gradually undergone a dramatic urban-rural sorting that has made most low-population states reliably Republican.
Consequently, while the U.S. Senate is currently split 50-50 Senators for each party, the Democratic half won over 41 million more votes than the Republican half and represents 56% of the American people. Sixteen conservative states with a smaller combined population than California’s have a total of 32 Senate seats. GOP senators have not represented a majority of the population since 1999, yet Republicans have held a majority of Senate seats for most of the past 20 years, passing or blocking key legislation.
Making matters worse, today’s Senate is about as representative as the UK’s House of Lords. It is overwhelmingly a chamber of elderly white males, with only 24 female senators out of 100 and 11 racial minorities (six Latinos, two Asian-Americans and three African-Americans) in a nation that is 40% minority and over half female.
Now add the filibuster and other archaic Senate procedures like appointment holds, and minority rule goes berserk. With the filibuster, the current Democratic-controlled Senate needs a near super-majority of 60 votes, including 10 votes from Republicans, to move any legislation forward. That means 41 GOP Senators representing a mere 20 percent of the country can stop legislation favored by Senators representing the other 80 percent. The Republicans used the filibuster to kill a major voting rights bill and a bipartisan commission to investigate the January 6 attack on the US Capitol (even though the latter won support from 56 Senators out of 100). This amounts to an extreme minority veto over public policy. The Senate is now the place where good legislation goes to die.
Presidential elections. With electoral votes awarded partly based on two Senators per state, presidential elections also are tilted towards Republican success. FiveThirtyEight estimates that a Democratic presidential winner must win the national popular vote by a margin of at least 3.5 points in order to win a bare majority of electoral votes. That’s why Republicans have won the presidency twice in the last six elections while losing the popular vote. Showing the fragility of this unrepresentative method, if 22,000 voters in the states of Wisconsin, Arizona and Georgia had changed their minds and voted for Trump over Biden, Trump would have tied Biden in the Electoral College, throwing the election into the House and electing Trump, even though he lost the national popular vote by over 7 million votes.
US Supreme Court. Because Supreme Court justices are nominated by the president and confirmed by the Senate, that same low-population, conservative bias is also hardwired into the Supreme Court. It’s no coincidence that currently the Supreme Court has a 6-3 conservative majority, despite the Democrats winning a majority of voters nationwide for the presidency, the House and the Senate. The Republicans have been hugely successful at appointing conservative judges, with President Trump appointing 226 federal judges, including three Supreme Court justices and as many powerful federal appeals court judges in four years as Barack Obama appointed in eight. Not bad, for a president who lost the popular vote, and for a GOP Senate that was elected by a minority of voters. Public confidence in the Supreme Court has shrunk to historic lows as its unpopular decisions reveal that it has become an unelected legislature of nine seats, where “five votes beats a reason any day.”
State legislatures. This GOP minoritarianism is not just baked into the federal government. Like in the US House, many states’ legislative elections are skewed by Democrat voters’ concentration in cities, making it easier to gerrymander Democrats into fewer districts. That has helped Republicans enormously to dominate the decennial redistricting process in state after state, following their success in winning control of the state legislatures which redraw the district lines. In four states — Michigan, Pennsylvania, North Carolina and Minnesota — GOP dominance of redistricting was so great that it controls majorities in those state-legislative chambers even though Democrats won the statewide popular votes. The GOP currently controls 67 state legislative chambers and the Democrats only 37.
In short, minority rule has metastasized like a cancer and is now pervasive throughout the US political system. It is like having a foot race in which one political party starts 10 meters ahead of the other. Numerous opinion polls about a range of issues show how governments at federal and state levels, as well as the US Supreme Court, are increasingly divorced from the policies that the public says it wants. The US is in danger of transmogrifying into a flailing “post-democracy,” in which we will still hold elections but those democratic rituals will be increasingly less effective as a vehicle for resolving the nation’s challenges. At what point might a critical mass of voters in a handful of battleground states cry out for a strongman who can “get things done”?
Despite appearances of the GOP’s “shrinking tent,” Republicans don’t need to expand their support base in order to win back control of the federal government. The GOP has found that mobilizing its loyal base of white voters can be a winning strategy, even if that base constitutes a voting minority. And no one mobilizes that electoral constituency better than Donald Trump.
A blueprint for better democracy: how to return the US to majority rule
There are solutions to these democratic threats, but in all honesty, they will be challenging to enact. An ambitious effort already is underway to adopt a national popular vote for president, utilizing interstate compacts instead of a constitutional amendment. A national presidential election should ensure that the winner has support from a popular majority. But even better than a French-style two round runoff system would be instant runoff voting, which allows voters to rank their favorite candidates and uses the rankings to elect a majority winner in a single election.
Congress also could change the method for electing the US House to “proportional ranked choice voting” in moderate-sized multi-seat districts (3 to 5 seats each), instead of the current “winner take all” single-seat districts. That would ensure broad representation in which a range of political parties would be able to win representation, and a majority of votes would always win a majority of seats. That also would give voters more choices and decrease some of the bitter partisanship.
The best example of the potency of such a change is illustrated by looking at U.S. House elections in southern states. For a number of years, polarized elections there have meant that white Republicans win the vast majority of seats, while black Democrats win a handful of urban-based seats. Partisanship has become racialized in dangerous ways. But instead of using single-seat districts, even so modest a change as combining three adjoining districts into one three-seat district elected by proportional ranked choice voting (where the mathematics works out to just over 25 percent of like-minded voters electing one seat), would advance fair and less polarized representation to an encouraging degree. And that representation schema would more accurately reflect the demographics of the southern electorate today.
A typical three-seat district likely would elect a white conservative Republican, a black liberal Democrat and a relatively centrist Republican or Democrat (usually white). Southern congressional moderates, once a mainstay of national stability and now an endangered species, would suddenly have new life. Such a plan would increase the number of African-Americans elected to the House without gerrymandering a single district. Some black Republicans might even get elected, as would more women. The resulting cross-fertilization in Democratic and Republican caucuses would lessen some of the ideological polarization and harsh partisan division that now infects the U.S. House. Such a “full representation” plan would also better represent white voters who currently live in opposition districts, and avoid costly redistricting lawsuits.
The Democratic-controlled Senate also should abolish the filibuster and toss it into the ash heap of history; or, to foster bipartisanship, use a process that gradually lowers the threshold from 60 votes to a final 51 vote majority.
The US also should depoliticize the appointment process for Supreme Court justices by using multiple appointing authorities and introducing reasonable term limits of 15 years, like many countries do. That would allow each president a chance to appoint a justice or two on a schedule.
Changing the representative structure of the U.S. Senate is going to be devilishly difficult, requiring a constitutional amendment, but we could elect the Senators by instant runoff voting to at least ensure a candidate wins with a majority. It would probably be better, however, to reduce the Senate’s powers, making it more limited like Germany’s upper chamber, the Bundesrat, since perhaps such a constitutional amendment would win sufficient popular and bipartisan support.
Other important reforms include enacting universal/automatic voter registration, which would eliminate most of the partisan shenanigans involved in voter registration, and at the same time ensure our elections and voter rolls are more secure. This is a reform that the Democrats could pass in numerous states that they control, and there has been some recent progress in a few states, but generally Democrats are continuing continue to drag their feet on this crucial reform.
Public financing of campaigns also would ensure that traditionally under-funded candidates are able to compete in elections, and would undermine the “pyramid of money” that allows party leaders to exert control over their party’s caucus by directing PAC money to preferred candidates, which is especially pernicious in party primaries.
This is the blueprint for the political reforms that are needed. Will they be easy to pass? No, especially not at the federal level. However we can start at the state and local levels, where much progress already has been made. But make no mistake, we must focus our attention obsessively on these solutions, and keep our eyes on the prize. We have to recognize that we have no other choice but to remake and reclaim our representative democracy. An anti-democratic minoritarianism has been unleashed, just as founders James Madison and Alexander Hamilton had feared. The Republicans will never give it up because, as a structural minority party, their power depends on it. Yet minority dominance undermines the government’s legitimacy, and pushes the US another step toward a future of post-democracy.
Our mudslide into post-democracy, if left unchecked, is more likely to unleash, not Lincoln’s government of, by and for the people, but a government of, by and for the few — that is, tyranny. But, ironically enough, elected tyranny, a historically unique phenomena. It will complete a tragic interment of the Spirit of 1776, and we are already seeing the first signs of it. Once the disintegration reaches critical mass, it may advance quicker than most Americans would have thought possible. This is the way our democracy will end, not with a bang but with a whimper.
However the US in the past has shown an impressive ability to adapt to a crisis and find solutions. During this time of growing national urgency, the inevitable necessity to reform our antiquated “minority rule” system demands our attention.
Steven Hill @StevenHill1776