Minority Rule Snowballs

When I did my annual end-of-the-year review in 2013, “the biggest single theme” I picked out was Minority Rule:

Republicans have given up on the idea of persuading a majority to agree with them. Instead, conservatives plan to rule from the minority.

I listed a number of the tactics they had been using: voter suppression, gerrymandering, and judicial activism among them. I didn’t expect these tactics to work nearly so well as they have. Consider:

  • In 2016, Mitch McConnell led a Senate majority that represented far fewer Americans than the Democratic minority. [1]
  • He used that minority-rule majority to radically change the way the Senate considers presidential appointments, blocking President Obama (who had defeated Mitt Romney 51%-47% in the 2012 election) from appointing a new swing vote on the Supreme Court. Instead, McConnell delivered that appointment to Donald Trump (who, even with the assistance of a hostile foreign power, lost the popular vote in 2016 to Hillary Clinton 46%-48%).
  • Trump’s appointee, Neil Gorsuch, was approved by the Senate 53-46. The senators voting for him represented far fewer Americans than the senators voting against him. [2]
  • Thanks largely to gerrymandering, Republicans in the House have a larger majority of seats than they have of voters. In 2012, Republicans won a 33-seat majority even while losing the popular vote. This year, as Democrats run considerably ahead in generic-ballot polls, political scientists argue over how big the Democratic voting margin needs to be to take control of the House. Is 5% enough? Seven percent? Eleven? One very likely outcome from this fall’s elections is that Democrats win a clear majority of voters, while Republicans win a clear majority of seats.
  • At the state level, things are often worse. Last year in Virginia, Democrats failed to gain a majority in the House of Delegates, despite a landslide 53%-44% victory in the popular vote. In North Carolina, the population is split relatively evenly between the two parties; Trump won the state with just under 50% of the vote compared to Clinton’s 46%, but the Democratic candidate won the governor’s race 49.0%-48.8%, despite one of the country’s most outrageous attempts at voter suppression. Meanwhile, gerrymandering gives the Republicans a 74-46 supermajority in the General Assembly, making Governor Cooper (and hence, the voters who elected him) virtually powerless.
  • Since Gorsuch joined the Court, several partisan gerrymandering cases have come up. The Court has not taken a stand. Gorsuch apparently does not even have a problem with racial gerrymandering.
  • Gorsuch was also the deciding vote in a 5-4 decision allowing purges of the voting roles in a manner than is likely to disenfranchise many legitimate voters while preventing virtually zero illegal votes.

In summary, minority rulers in Congress, the White House, and state capitals keep changing the rules to make it possible to rule with ever-smaller minorities. And a minority-appointed Supreme Court is fine with that.

A certain amount of minority rule was built into the Constitution in institutions like the Senate and the Electoral College, but I don’t think the Founders envisioned even those mechanisms becoming as skewed as they are today. [3] The Founders hoped the United States could avoid splitting into political parties, so they certainly never envisioned the vicious cycle of minority-rule entrenchment we’re seeing now: A political party centered in the small states that the Constitution favors (and representing the interests of the very rich) has used that extra boost of power to make the system increasingly more anti-democratic, giving themselves legislative and executive sway well beyond their voting numbers, making it increasingly difficult for the majority to vote them out, disenfranchising many citizens who might vote against them in the future, tearing down any limits on the use of money in politics, and packing the courts with judges who will rubber-stamp their power-grab.

With Justice Kennedy’s retirement, the minority-rule president and minority-rule Senate have a chance to appoint another Supreme Court justice, tipping the Court’s balance further in their favor for many years to come.  Jonathan Chait notes:

Democrats have won the national vote in six of the last seven presidential elections, which, with the retirement of Anthony Kennedy, will have resulted in the appointment of eight of the Supreme Court’s nine justices. And yet four of those justices will have been appointed by presidents who took office despite having fewer votes than their opponent.

We can expect this new justice to make it virtually impossible for the Court to limit or mitigate the techniques of minority rule. [4]

Increasingly, that minority-appointed and minority-approved Court majority has become nakedly partisan. Justice Kennedy’s opinion-of-the-Court in Citizens United is a flight of fantasy in which unlimited corporate money improves the public debate prior to an election, because money (even money from profit-making corporations seeking government favors) is speech, and “There is no such thing as too much speech.” Chief Justice Roberts’ gutting of the Voting Right Act contains very little legal reasoning beyond his vague assertion that “things have changed dramatically” since the first version of the VRA in 1965.

It is no longer necessary to understand the laws or the Constitution to guess which side the Court will favor: Whatever improves Republican chances in the next election is good law. The Constitution’s guarantee of “a republican form of government” increasingly leans on the word form; if the formal process of an election is carried out, it doesn’t matter whether the sovereignty of the People is respected.

We know where this process can go: The end result is plainly apparent in Putin’s Russia, where Potemkin elections are held on a regular basis. The path is laid out by authoritarian “democracies” in Hungary and Poland, whose rulers have not yet achieved Putin’s level of security against the People, but are on their way.

None of that is inevitable, but it gets harder to turn things around the further we go. If the Supreme Court won’t protect democracy, then we will have to count on elected officials to do it. If it takes a 7% margin to control the House, we need to get that 7% margin. If winning the popular vote by three million votes isn’t enough to elect a president, then we need to win by four million votes. Gerrymander-ending laws that can’t get through gerrymandered legislatures need to be passed by referendum.

If a majority ever regains power, it shouldn’t be shy about using it: We need a constitutional amendment that controls corporate political spending. Voting rights need protection, and gerrymandering has to be stopped — by legislation if the Supreme Court will allow it, and by amendment if it won’t. The Electoral College has to be abolished. Citizens without representation in Congress need to get it: Puerto Rico needs to be offered statehood, and the District of Columbia needs representation. Breaking up the big states needs to be on the table.

The sovereignty of the People is a principle that runs deep in the DNA of American voters, even those who might favor conservative social policies. We need to make them understand the trade-off they’ve been making: An American Putin would do many things they’d like, but is it worth surrendering the Republic?

If we’re going to pull this out, we need to have all hands on deck. Apathetic citizens need to be convinced to care and to vote. The canards that “it doesn’t really matter” and “both sides are the same” need to be rejected. For the next few cycles, and maybe for the rest of our lifetimes, democracy itself is going to be the most important thing on the ballot. It’s going to be on the ballot in every election from president to school board. It needs to win.


[1] I couldn’t find a source to reference, so I calculated for myself. (You can check me if you want.) From a list of the senators by state, I determined that in 2016, 20 states had two Republican senators and 16 states had two Democratic senators (counting Bernie Sanders and Angus King as Democrats), accounting for an 8-seat Republican majority (54-46). I then went to the 2010 census and added up: The 20 two-Republican states had a total population of 99,576,045 and the 16 two-Democrat states totaled 126,215,202. I had not expected the margin to be quite so wide.

[2] By the same methods as above, 22 states had two senators voting for Gorsuch and one (Georgia) had one for and one not voting, so I’ll count Georgia’s population for Gorsuch. Those states total 108,613,347. Eighteen states totaling 135,574,383 people had two senators voting against Gorsuch. The other states had one senator for and one against, which I’ll regard as canceling out.

[3] The first census, in 1790, showed that the most populous state was Virginia, with 454,983 free inhabitants. The least populated state was Delaware, with 50,207, a ratio of about 9-to-1. In the 2010 census, California had over 37 million people and Wyoming 568,300, a 66-to-1 ratio. If you combine the populations of the seven states with less than a million people — Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming — you have 5.3 million people represented by 14 senators. That’s 1/7th the population of California with 7 times the senators.

The situation gets worse when you consider the Americans not represented in the Senate at all: 3.4 million in Puerto Rico and 700K in the District of Columbia. Puerto Rico’s population almost exactly matches that of Alaska, the Dakotas, Vermont, and Wyoming put together; those states have 10 senators.

The situation is somewhat better in the Electoral College, but still considerably less fair than in 1790. The first census gave Virginia 21 electoral votes and Delaware 3; 9 times the population produced 7 times the electoral votes. But today California has 55 electoral votes to Wyoming’s 3; 66 times the population produces 18 times the electoral votes.

It’s also clear what the Founders’ solution would be: Break up large states. In their time, Kentucky was created from land claimed by Virginia, and Vermont from land New Hampshire and New York were arguing over.

[4] Trump’s legal situation creates yet another problem: Probably, the Supreme Court is going to have to make some serious rulings about whether the president can be subpoenaed, when a corrupt pattern of pardons constitutes obstruction of justice, and even whether the president can pardon himself. Trump may well be deciding those issues himself right now, by choosing a justice who will rule in his favor.

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Comments

  • Gina  On July 2, 2018 at 10:13 am

    I’m at a loss as to what steps the Democratic party on any level is doing to fight voter apathy. I volunteered for a Senate campaign once, in a race that most people thought the Democrat had a good shot at winning, even in a deep red state (because even Kentuckians hate Mitch McConnell, fyi), and I couldn’t believe they didn’t have us volunteers doing anything that I thought might actually help us win. We spent hours calling registered Democrats, who very rarely answered the phone and didn’t care to discuss the election with us when they did. A complete waste of time! I thought, why aren’t we putting a table out in the Walmart parking lot and offering people information about the election and how to register to vote? Why aren’t we putting out classified ads offering people a ride to the polls or offering to help get people registered to vote? Why aren’t we helping people get whatever identification they need in order to meet the voter ID law? Why are we just sitting in a room and making phone calls that don’t get answered and talking to people who don’t want to talk to us??

    Anyway, she lost, of course, because she refused to admit she voted for Obama and McConnell shrewdly grabbed that issue and ran with it. He had, literally, nothing else going for him.

    During the four years I lived in Kentucky, though, I received over the years at least a half a dozen postcards and letters from the Republicans letting me know about upcoming elections, the candidates and the issues and how I should vote. And I was a registered Democrat!! If they could spend the money to send that information to people in the opposing party, why aren’t Democrats sending that information out to their own registered voters? Why have I never in my life received a piece of information in the mail about an election, a candidate or an issue from the Democratic party? I have never understood why no one has ever reached out to me to make sure I’m going to vote. I’m a voter, I do vote, but it tells me that no one is making any effort to reach out to the ones who aren’t voting, and this seems like a no brainer to me.

    • jh  On July 2, 2018 at 5:07 pm

      Maybe one solution is to find PACs and SuperPACs that are wiling to do what you state? I’m not sure what to say about spam mail. I never bothered to read any of it. A better shot would be to put up a lemonade stand and start talking about how bad republican policies are and the big picture. And start going on the attack. Don’t let republicans define the fight. Have them defend against charges that they like to throw children into cages. I mean – that’s exactly how I would do it. “Why do you like throwing children into cages?” And bring up the Charlottesville Rally and Heather. Remind people that “there are good people on both sides” while underscoring the Nazi imagery and the violence.

      If it’s a but “Benghazi” – ask them how many investigations they need before they believe HRC is innocent? 2? 3? 4? 5? 6? 7? 20?

      If it’s both parties are evil – ask them, so they are exactly alike? The democrats rip children from their parents’ arms and throw them into cages? If you had to choose between a peaceful death in your bed and a bullet to the head, you would still say that “both are equal”?

      You won’t get the hard republicans. They are a lost cause. But there are angles such as “cost of child internment camps” vs the Obama era programs that cost significantly less.

      At the end of the day – this is a very dangerous time in US history. If we can’t win, well… I’m glad I’ll be dead soon. Sucks for the kids. This is an all hands on deck to stop the conservative madness. No more politeness. Maxine Waters is right.

      And personally – I’m coming to the conclusion that a government made up of second place losers isn’t a legitimate government. They aren’t the will of the people. After all – republicans like to parade how they don’t want to give attendance gold stars. So let’s play that game. Losers shouldn’t win the first place prize. We shouldn’t allow affirmative action in our political system.

  • nicknielsensc  On July 2, 2018 at 3:48 pm

    It’s also clear what the Founders’ solution would be: Break up large states. In their time, Kentucky was created from land claimed by Virginia, and Vermont from land New Hampshire and New York were arguing over.

    I’m forced to disagree with that assessment. The founders never intended for any one Representative to represent more than 50,000 people. See the Congressional Apportionment Amendment. Today’s House represents, on average, well over 700,000 people per member.

    Yes, that’s a lot more people than the Capitol can hold. Create regional government centers out in the states: Boston, New York, Atlanta, Charlotte, Dallas, St Louis, Chicago, Minneapolis, Denver, LA, Seattle, wherever. House members from each regions could convene there and communicate over audio-visual feeds. It’s not like everybody gets together every business day, anyway.

  • SiliconVal  On July 2, 2018 at 8:48 pm

    I kept expecting to see the other non-represented Americans in the discussion, but no mention of American Samoa and the other “non-citizenship” territories. This too is an injustice I’d like to see us correct if we can make the Blue Wave happen. http://www.latimes.com/nation/la-na-american-samoan-citizenship-explainer-20180406-story.html

  • Larry Benjamin  On July 2, 2018 at 9:01 pm

    Regarding Kennedy’s successor, one strong contender is Brett Kavanaugh, a DC Circuit Court judge whose major issue is that the sitting president should not have his time wasted by being investigated or having to testify in lawsuits against him. This may be far more important to Trump than the prospect of overturning Roe v. Wade, which has been a good motivator for conservatives that they may be loath to not have anymore.

Trackbacks

  • […] to grasp the challenge Trump — and the larger pattern of minority rule I described in the previous post — pose to American democracy. It also has more or less abandoned one of the core principles […]

  • By The Wrong Week | The Weekly Sift on July 2, 2018 at 1:06 pm

    […] week’s featured posts are “Minority Rule Snowballs” and “Giving up is a prerogative of […]

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