Anti-Majoritarianism in America

In a democracy, the majority ought to rule. But too often, the system is designed to produce exactly the opposite outcome.

It started when we drafted the constitution. The Senate gave each state an equal say, despite unequal populations, which has the effect of giving more power to smaller, whiter, and more conservative states.

In our original system, no voters could vote for President, not even white, landowning males. Instead, those voters could only vote for their state legislator, who in turn voted for an electoral college member, who met after the election to choose the President. That’s right, the electoral college was originally a deliberative body, with no obligation to follow anyone’s votes at all. Eventually, the system was changed to what why see today, which is still anti-majoritarian, in that it can override the will of the popular vote, which has happened twice in the past 20 years.

The infamous “Three Fifths” compromise allowed the Southern States to claim that slaves counted as three-fifths of a person for the purpose of Congressional representation, even though slaves obviously couldn’t vote. This meant that pro-Southern, pro-slavery politicians had outsized representation in Congress, which never passed a single anti-slavery bill before the Civil War.

It also meant that the Presidency was controlled by the South, too. Congressional representatives also determined how many electoral votes each state received. This is why the US never elected an anti-slavery President until Abraham Lincoln. Southern states had more voting power than they actually earned at the ballot box.

After the Civil War, Southern states actually gained even more unearned power. “Three Fifths” was out, but now that all black residents counted as a full citizen, the South got even more representatives and electoral votes, even though nearly all blacks were prevented from voting.

When forced to finally give blacks voting rights, the South tried a variety of anti-majoritarian moves. First, they changed the way districts were drawn to give small, rural towns the same number of seats as large, urban areas, to limit how many seats black voters could earn. This tactic was struck down by the Supreme Court, with the famous “One Man, One Vote” decision. Then, South tried to split large urban centers into little slivers across many districts, so they couldn’t elect anyone. The Voting Rights Act axed this strategy, requiring states to allow at least some “minority-majority” districts.

Finally, they tried to put all black voters into as few districts as possible, so that the majority of the districts will be white and conservative. This strategy, known as “packing and cracking,” is the primary way gerrymandering is done today, and it's still perfectly legal.

Of course, anti-majoritarianism isn’t used just by the South. The Democratic party’s anti-majoritarian bias was on full display recently in Iowa, where an unfair “weighing” system led to the official “SDE” count giving rural voters more of a say than urban ones, which in turn helped Pete Buttigieg edge out Bernie Sanders, despite getting less actual votes.

Even in states without SDEs, many still give delegates based on performances in individual (gerrymandered) Congressional districts, rather than statewide popular vote totals. This means is it possible for the candidate with less votes to prevail. In the 2008 Democratic Caucus in Nevada, for example, Barack Obama received 1 more delegate than Hillary Clinton, despite losing the popular by nearly 6%. This was because he did better in sparsely populated, rural areas, while she had a huge margin with Hispanic voters in Las Vegas.

In Wisconsin and North Carolina, voters elected a Democrat as Governor. The anti-majoritarian, gerrymandered, Republican state legislature was so outraged that they literally changed the definition of the job of “Governor” so it would have less power.

In a close election, it only takes a handful of votes to sway the outcome. In swing-state Florida, for example, even after a prisoner has done their time and been released, they still can’t vote. In 2018, a ballot initiative passed overwhelmingly that restored the right of ex-cons to vote. But the Republican state legislature, which came to power thanks to a gerrymandered, anti-majoritarian map, gutted the new law. They required all ex-cons to fill out an application and also pay any outstanding fines, which they knew most would not do.

It’s no coincidence that the voters whose voices are most often silenced with anti-majoritarianism — urban liberals and blacks in the South — also seem to be silent in the corridors of power in Washington. Take the latter group, for instance. Even though 90% of blacks vote for Democrats, the entire South — except Virginia — sent its electoral votes to Trump. (Virginia has a white Democrat Governor who had admitted to participating in racist blackface photos.)

Blacks in the South are among the least healthy group in America. They also have access to the fewest doctors, and thanks to the Supreme Court, they don’t have access to Obamacare’s Medicaid expansion. And, with the South providing the lowest minimum wages, many can’t afford to go to the doctor.

Blacks in the South are more likely to go to prison, and while there, they have very few rights. The prisoners are also often counted as residents of the prison, rather than the place they last lived. Since prisons are often located in rural areas, this unfairly magnifies the representation of those areas, a kind of modern “Three Fifths” effect.

Many black prisoners today are literally forced to pick cotton for 4 cents an hour. Others had to phonebank for Michael Bloomberg’s Presidential campaign. Bloomberg, let’s remember, was famous as a mayor who heavily policed urban neighborhoods, increased arrest rates for blacks, and is running a campaign which is aimed at support among whiter, wealthier, and more moderate Democrats.

Anti-majoritarianism always seems to cut in one direction — taking power away from urban or ethnic areas and giving it voters who are whiter, more rural, and more conservative. Democrats have tried to gerrymander when they have the opportunity to do so, but they can never do it as effectively as Republicans. That’s because there aren’t as many supporters to “pack.” No demographics support the GOP at 90% levels, the way black voters prop up Democrats. So, even when both sides try to play the gerrymandering game, the GOP always wins. Even if you drew the districts randomly, the GOP would still win most of the time, because “pockets” of black voters tend to make the Democratic vote less spread out geographically.

How to fix these problems? Here are a few possible solutions:

1. Pass the popular vote interstate compact, which would circumvent and replace the Electoral College with the popular vote, and allow every citizen’s vote to count equally.
2. Make voter registration automatic, and require each state to allow absentee voting.
3. Guarantee the right to vote to every US citizen, including prisoners and ex-cons. Give prisoners absentee ballots for the areas they used to live and count that location as their residence.
4. Reform primaries. Instead of a complicated, anti-majoritarian system, whoever gets the most votes in total across all contests automatically becomes the nominee.
5. After each census, require districts for Congress and state legislature to be redrawn in a way that reflects the preferences of the raw vote total for each state. For example, if 55% vote Democrat and 45% vote Republican across a decade, then redraw the districts such that you would expect Democrats would win 11 districts and the GOP 9. This would have the positive effect of encouraging voter participation even in non-competitive election cycles. (Alternatively, you could just look at party registration for the data.)
6. Have a new legislator, Governor, or President assume office one week after they are elected. Why wait two months and allow the outgoing government the opportunity to thwart the will of the people? Other nations, such as the UK and France, have transition periods of one week, with no major issues.
7. Add Washington D.C. and Puerto Rico as states. The residents of those places are US citizens and they should have the right to Senators to represent them. This would also help counteract the white/conservative tilt of the Senate.

These steps would eliminate much of the anti-majoritarianism built into the American electoral system. But what are your thoughts? Please let me know in the comments.