America Is a Failed Democracy: A Primer (It’s Long But Essential)

. . . the American republic, originally designed to be a majoritarian representative democracy, has become minoritarian. Or more precisely, at every level of the current institutions of our representative democracy, we have rendered those institutions unrepresentative. This fact alone should be enough to lead aspiring democracies around the world to look elsewhere for models for how democracy might be made to work. 

Those are the words of Laurence Lessig, a Harvard law professor, writing for The New York Review of Books. If you want to understand the ways this country has failed at democracy, read what follows. The features of minority rule discussed below include gerrymandered state legislatures and congressional districts, vote suppression, political action committees, the Electoral College, the Supreme Court, the Senate and the filibuster:

What’s most striking about America’s understanding of our own democracy is our ability to see what’s just not there. We are not a model for the world to copy. The United States is instead a failed democratic state.

At every level, the institutions that the US has evolved for implementing our democracy betray the basic commitment of a representative democracy: that it be, at its core, fair and majoritarian. Instead, that commitment is now corrupted in America. And every aspiring democracy around the world should understand the specifics of that corruption—if only to avoid the same in its own land.


The corruption of our majoritarian representative democracy begins at the state legislatures. Because the Supreme Court has declared that partisan gerrymandering is beyond the ken of our Constitution, states have radically manipulated legislative districts. As Miriam Seifter . . . summarized in a recent article for the Columbia Law Review, “across the nation, the vast majority of states in recent memory have had legislatures controlled by either a clear or probable minority party.” Her work was based in part upon an extraordinary analysis published by the USC Schwarzenegger Institute, which found that after the 2018 election, close to 60 million Americans “live under minority rule in their US state legislatures.” The most egregious states in this mix are also among the most important in presidential elections. In Wisconsin, for example, the popular vote for Republicans in 2018 was 44.7 percent; but Republicans controlled 64.6 percent of the seats in the statehouse. Likewise, Republicans in Virginia won just 44.5 percent of the vote but received 51 percent of statehouse seats.

State legislatures, as Seifter characterizes them, are “the least majoritarian branch” of our representative democracy. Yet this fact is all but invisible to most Americans—including, as she evinces, justices on the Supreme Court. We are all outraged when the Electoral College selects a president who hasn’t won a plurality of votes, something it has done five times in its history. Why are we so sanguine about legislatures that are regularly controlled by the party that won fewer votes across the state?

These gerrymandered states then spread their minoritarian poison in two distinctive ways. First, they have taken up the most ambitious program of vote suppression since Jim Crow. Through a wide range of techniques, Republican state legislatures are making it selectively more difficult for presumptively Democratic voters to vote, by reducing the number of polling places in Democratic districts, by ending early voting or voting outside of ordinary working hours, by deploying biased ID requirements that selectively allow forms of identification commonly held by Republicans (gun club registration cards) while disallowing those held by likely Democratic voters (student cards), by understaffing polling places so voters must queue for hours to vote, and by many other creative techniques. In Georgia, the legislature has even made it a crime to give water to people waiting in line to vote. What possible legitimate state interest could that law serve?

These acts are often framed by their opponents in racial terms. That framing is a strategic mistake. I’m happy to stipulate that some who push these techniques of suppression may well be motivated by race—after all, many of the techniques were those of race discrimination before —though most would surely disavow any such thing. But every single person pushing these techniques of suppression is certainly motivated by politics. It is raw partisan power, driven to destroy the electoral prospects of the other party, that explains what is happening here. Before the United States Supreme Court, Justice Amy Coney Barrett asked lawyers from the Republican National Committee why they were opposing provisions enabling more people to vote. Because it “puts us at a competitive disadvantage,” the lawyer was untroubled to reply. How can it be permissible for the party in power nakedly to rig the system against its opponents?

The second way that minoritarian state legislatures spread their poison is by gerrymandering the United States House of Representatives. Partisan gerrymandering was first perfected in its modern “big data” form by Republicans in 2010, and the Democrats then spent the following decade trying to get the Supreme Court to put a stop to it. When the Court announced it would not, there was little left for the Democrats except good government initiatives, aiming at moving the redistricting process away from the most egregiously partisan influences. That did some good—until the 2020 election signaled to Republicans that their party faces virtual annihilation if the majority gets its say. The efforts to gerrymander for 2022 will therefore be the most sophisticated seen yet. Barring a legislative miracle to safeguard voting rights, by the next presidential election Republicans will have secured through gerrymandering the control of the House of Representatives, whether or not they succeed in winning more votes than Democrats. And if the plans of some extremists come to fruition, a critical mass of state legislatures will also have passed laws by then that give them the power to overturn the results of a popular presidential election in their states.

These two techniques of minoritarian rule—gerrymandering and partisan vote suppression—could have been resisted by the courts. Yet what’s striking about the United States Supreme Court is not only that it has done nothing to resist minoritarianism but also that its most significant recent interventions have only ratified perhaps the most egregious aspects of our minoritarian democracy: the influence of money in politics.


While most mature democracies have various techniques for minimizing the corrupting effect of money in politics, the US Supreme Court has embraced the most radical conception of campaign money-as-free speech of any comparable democracy. While the Court has upheld limitations on direct contributions to political campaigns, it has simultaneously held, in its infamous decision in Citizens United v. FEC (2010), that any limitation on independent spending violates the First Amendment. Lower courts have then read Citizens United to mean that any limits on contributions to independent political action committees would violate the First Amendment as well. These rulings together gave rise to the so-called Super PACs that now dominate political spending, and enable strategic coordination of influence that is more effective than spending alone. In 2020, for example, the ten top Super PACs accounted for 54 percent of outside spending.

What’s critical to recognize is that the real power of this money comes not from its effect in persuading voters. Its power comes instead from the dependence it creates within our political system. Candidates know they need the support of Super PACs, either to make the case for them or to defend them from others who would attack. That dependence produces enormous power in the Super PACs concentrated in the hands of a tiny number of very wealthy individuals (who are presumptively but not necessarily Americans). In a nation of hundreds of millions, a few hundred families now dominate political spending.

Here again, there is no shame. In June 2021, the political action committee (PAC) No Labels had a call with Senator Joe Manchin, Democrat of West Virginia, about legislative priorities in the balance of the year. On the call, the founders of the PAC emphasized the power their group had in Washington—not because of their ideas, but because of their money. The ultra-wealthy donors supporting No Labels were able to “hand out $50,000 checks,” its cofounder, Andrew Burskey, bragged. And those checks, he explained, represented the most valuable money in any political campaign. This was “hard” money, money given to candidates directly, which FEC rules allow the candidates to spend themselves. And then to prove just why that money was so valuable, Burskey offered the incredibly revealing picture of just why the economy of influence in Washington gave the ultra-wealthy so much power in Congress. As he explained:

[Most House members] are spending four hours on the telephone, dialing for dollars. And so what [a large contribution from donors] does—aside from sending the very strong message that there are folks who will have your back if you take tough votes that . . . may not be popular within your party—it also in real life frees them to do more work, because it’s spending less time raising those funds.

Burskey is remarking upon the obvious dependence that exists with our current system for campaign finance: the dependence of representatives on fundraising. Because of that dependence, particular kinds of funders—namely, large funders—are especially valuable. Large contributors give members two things at the same time: first, and obviously, money; but second, and even more critically, time. A $50,000 contribution gives members of Congress the chance to breathe, even as it naturally obliges them to [serve] the interests of the person who enabled that chance.


The legislative branch, of course, is not the only minoritarian institution within our republic. Because of the way states allocate Electoral College votes, the executive branch is effectively minoritarian, too. Not just in the most egregious way, when the candidate who wins fewer votes nonetheless becomes the president, but also, and more significantly, in the most regular way: because of the way states allocate their Electoral College votes, it is only a tiny fraction of American voters who actually matter to the ultimate result. All but two states give the winner of the popular vote in their state all of the electors from that state. This means that the only states that are actually contested in any presidential election are the “swing states,” at most a dozen or so of the fifty in the union. Those swing states represent a minority of America—less than 40 percent of the electorate depending on the election. That minority is in turn radically unrepresentative of America itself. The voters in the swing states are older and whiter. Their occupations are more traditional. For example, seven and a half times more people work in solar energy in America than mine coal, yet we never hear anything about solar energy industry workers as an important political bloc in a presidential campaign because those people live in non-swing states like Texas and California. Coal miners live in battleground states, so they become the central focus of the candidates running for president.

It is thus this tiny, unrepresentative minority that effectively selects the occupant of the Oval Office—making the president, as political scientists (such as Douglas Kriner and Andrew Reeves) have shown, especially responsive to this unrepresentative few. Federal spending is higher, all things being equal, in swing states over non-swing states, and regulators are particularly accommodating of swing states’ regulatory concerns. Does America tinker with steel tariffs or ethanol subsidies because either policy makes any sense? No. We live with these policy vagaries because their beneficiaries live in Pennsylvania and Iowa (both swing states).


And so, too, with the courts: if any institution within a representative democracy is supposed to be minoritarian, or at least, counter-majoritarian, courts are. That is true substantively, but it is not supposed to be true politically. Substantively, of course, courts are meant to uphold constitutional rights, regardless of popular majorities. My First Amendment right to speak should not depend upon whether my views are liked by a majority. But the institution of the judiciary is also populated through political action. And to the extent that those actors have power because of a minoritarian corruption of representative democracy, the courts they populate are likewise tainted by minoritarianism.

Consider the Supreme Court: the current bench is divided 6–3, with the majority dominated by extremely conservative justices. That division is in no sense representative of America. Two thirds of the US is certainly not “conservative.” And while the random nature of Supreme Court turnover can sometimes produce such unrepresentativeness, this Court was expressly constructed by Senate leaders who changed the norms of confirmation to effectively steal a Supreme Court seat. In February 2016, then Majority Leader Mitch McConnell declared, after Justice Scalia’s death, that it was “inappropriate” to confirm a nominee of President Barack Obama’s because it was an election year. But when Justice Ginsburg died just six weeks before an election, McConnell declared that it was perfectly appropriate to rush a nominee through the Senate before the 2020 election. In record time (for a modern appointment), Justice Amy Coney Barrett—certainly among the most conservative of the justices now seated on the Supreme Court—was confirmed by a Republican Senate.


Yet, without doubt, the most extreme institution of minoritarian democracy in America today is the United States Senate. Of course, that flaw was in a sense intended: the only way small states were going to agree to the new Constitution in 1787 was if the Constitution gave them extra power. That compromise enraged James Madison, but he could read the political writing on the wall and eventually became a defender of this counter-majoritarian compromise at the heart of our republic.

Even then, though, the minoritarianism built in to the Senate was muted in the first century after the Constitution’s signing. It was muted first because the differences in states’ populations were much smaller than they are today. The largest state in 1790 (Virginia) was thirteen times more populous than the smallest (Delaware). Today, the largest (California) is sixty-eight times more populous than the smallest (Wyoming). But it was muted second, and more fundamentally, because until this century the Senate did not regularly block the will of the majority of senators. The original Senate rules expressly protected the power of the majority, a simple majority, to vote on any bill whenever it wanted. It was only when Senator John C. Calhoun, the proslavery Democrat of South Carolina, began to muck about with those rules fifty years after the Constitution was ratified that the will of the majority was placed in jeopardy.

We miss this fact because the technique of this blocking has a name that has long been part of Senate lore: the filibuster. And given the tactic’s long pedigree, it is easy to imagine that what we are talking about today is the same as existed in the Senate for most of the institution’s history.

The reality is radically different.

The filibuster that existed for most of the Senate’s history was a device that simply slowed the consideration of legislation. It didn’t kill it. The one exception to that characterization was civil rights legislation: the only examples of laws being blocked by filibuster all the way through 1965 were anti-lynching laws, and laws to improve civil rights. For the rest, the filibuster simply delayed the debating and passage of legislation. And for that delaying tactic to operate, the Senators supporting the filibuster had to do real work: if a Senator was to filibuster a bill, he would have to stand on the floor of the Senate and speak, for many hours without a break. Strom Thurmond, Democrat of South Carolina, held the floor for twenty-four hours to hold up the 1957 Civil Rights Bill. That was not mere showmanship as House Minority Leader Kevin McCarthy’s recent eight-hour filibuster was. It was the only way that a filibuster could have any effect.

Today, however, the mechanism of the filibuster is radically different. All a senator must do to assure that a bill is filibustered is make a request to their party leader. That request—which can literally be by e-mail or text—then shifts the bill from being one that will pass if a simple majority supports it to being one that cannot even be debated unless a supermajority of sixty senators supports it.

The effect of the old filibuster was to keep a bill on the floor of the Senate as the filibusterers were debating. That allowed their dissent to be better understood, if not in the Senate, then at least by the public. The effect of the new filibuster is exactly the opposite: its effect is to block any debate until a supermajority allows it. Thus, the For the People Act—a bill that would have reversed much of the state suppression of the vote, ended partisan gerrymandering, and changed fundamentally the way campaigns are funded—has been blocked from debate on the floor of the Senate now twice, even though a majority would vote to allow that debate to occur. This modern filibuster thus doesn’t enable debate or understanding. The modern filibuster is just a gag rule on any legislation a minority does not like.

Even this description, however, masks the real corruption in the system. The norms that limited the filibuster to important issues are gone. Both parties killed those conventions over the past twenty years, the Republicans more aggressively than the Democrats. The filibuster has now become a routine hurdle that any significant legislation must clear. What that means is that we have now introduced a procedural requirement into the passage of legislation that makes the process more institutionally minoritarian than that of any legislature in any comparable representative democracy. Senators from the twenty-one smallest and most conservative states, representing just 21 percent of America, now have the power to block any non-budget legislation.

This filibuster lock alone—setting aside all the gerrymandering in the states, the gerrymandering of Congress, the suppression of the vote in elections, the Electoral College, the corrupting dependence of money—would be enough to categorize America as a “minoritarian democracy.” Like segregationist or sectarian regimes such as South Africa under apartheid, or the Sunni rule of Baathist Iraq, or Syria under the Alawi, the American republic, originally designed to be a majoritarian representative democracy, has become minoritarian. Or more precisely, at every level of the current institutions of our representative democracy, we have rendered those institutions unrepresentative. This fact alone should be enough to lead aspiring democracies around the world to look elsewhere for models for how democracy might be made to work. Our only lesson for these democracies is the consequence of our own failure.


In 1997, after he had surprised the world by winning reelection decisively, Bill Clinton convened a small dinner with the top donors to the Democratic Party at the Mayflower Hotel in Washington, D.C. What should he do in his second term? What did they think he could achieve? It was a moment of great hope and possibility—nine months before the revelations of a White House intern would deflect the administration from achieving anything of significance.

As the story is told, about thirty of America’s super-wealthy sat around a table. The president asked each in turn to give him their views. One by one, they rose to speak. The last to rise was a businessman, the founder of Stride Rite Shoes, and the second-largest contributor to the Democrats in 1996. As he stood up, few had any sense of what he would say. When he sat down, few could believe he’d actually said what he did say.

“Mr. President,” Arnold Hiatt began, “I know you’re an admirer of Franklin Delano Roosevelt. So I want you to put yourself in FDR’s shoes in 1940—the year when Roosevelt realized that he was going to have to convince a reluctant nation to wage a war to save democracy. Because that, Mr. President, is precisely what you need to do now—to convince a reluctant nation to wage a war to save democracy.” That would not, of course, be a war against fascists. It would be a fight against fat cats—people like Hiatt, rich people, and people who believed (unlike Hiatt) that just because they are rich, they’re entitled to dinner with the president at the Mayflower. Hiatt was challenging the president to recognize that “current campaign finance practices are threatening this nation in a different, but no less serious way,” he said. . . . There was silence when Hiatt finished. No doubt, some were uncomfortable. . . .

At the time Hiatt spoke, Citizens United was still more than a dozen years in the future. We had not yet seen the pathological gerrymandering of 2010. Few could have imagined the open efforts by partisans in state legislatures to suppress the votes of their political opponents. Not a single Republican in any state legislature was then considering legislation to allow state legislatures to override the popular vote for president. And though the filibuster had been deployed beyond the domain of civil rights by then, it would be nine years before the architect of the modern filibuster, Mitch McConnell, would be elected to lead his party in the United States Senate. And no one—literally, no one—could have imagined an event like January 6 taking place in the United States of America. From our perspective today, Hiatt spoke at a time of relative health in the American democracy. And yet to him, and to many others then—including an eighty-eight-year-old woman who, nine months later, would begin a 3,000-mile walk across the country with the words “campaign finance reform” emblazoned across her chest—the corruption of money was already reason enough to “wage a war to save democracy.”


Today, we confront a Republican Party that has effectively declared war on majoritarian democracy. At every level, the leadership of that party challenges the fundamental idea of majority rule. Rather than adjust their policies to appeal to a true majority of Americans, Republicans have embraced the minoritarian strategy of entrenching what has become, in effect, a partisan, quasi-ethnic group against any possible democratic challenge. They rig the system so the majority cannot rule.

In the face of this threat, what America needs is what Hiatt said FDR had been: a leader who could “convince a reluctant nation to wage a war to save democracy.” Or maybe better, what America needs is a leader like Winston Churchill, who could convince a distracted nation that there is a fundamental threat to our democracy that we must now wage war to save.

Yet we don’t have a Churchill leading this fight. We have a Chamberlain. Rather than name the threat, and rally America against it, President Biden has been keen to negotiate the differences in conciliatory fashion—as if the modern filibuster were not a fundamental threat to democracy and as if the fight against majoritarianism were not a threat either. Biden has been eager to engage in a bizarre nostalgia, recalling a golden age when white men from different parties somehow got along, rather than recognizing that American democracy has never faced a threat like one—even if this is precisely the political reality that Black Americans have known for all of the country’s history.

There was real hope this year for effective action to address this corruption of democracy. Every single major candidate for president in the Democratic Party in 2020 (with the exception of Kamala Harris) had committed to making the For the People Act a top priority in the first hundred days; some had promised even more. Speaker Nancy Pelosi maintained that momentum and passed the act in the House. And after she succeeded in the House, Majority Leader Chuck Schumer committed to getting the Senate to do the same.

Standing in the way, however, was the filibuster.

For most of this year, President Biden defended the filibuster and stood practically silent on this critical reform. He has focused not on the crumbling critical infrastructure of American democracy, but on the benefits of better bridges and faster Internet. Democratic progressives in Congress were little better on this question. Although Alexandria Ocasio-Cortez, Bernie Sanders, and Elizabeth Warren all supported the For the People Act, in the public eye the issues they’ve championed have overlooked the country’s broken democratic machinery: forgive student debt, raise the minimum wage, give us a Green New Deal…. As a progressive myself, I love all these ideas, but none of them are possible unless we end the corruption that has destroyed this democracy. None of them will happen until we fix democracy first.

It may well be that nothing could have been done this year. It may well be true that nothing Biden could say or do would move Senators Joe Manchin and Krysten Sinema, the two who are apparently blocking reform just now. Yet we have to frame the stakes accurately and clearly: if we do not confront those imperfections in our democracy, openly and transparently, we will lose this democracy. . . . [i.e. what’s left of it].

Tonight’s Civics Discussion

I wanted to understand what is supposed to happen in Washington tomorrow, when Congress is legally required to formally announce that Joe Biden and Kamala Harris won the election. The law that describes the proceedings is 3 U.S. Code § 15 – Counting electoral votes in Congress. It’s not easy to read, but this is what it says (with my comments, helpful or not, in italics):

Congress shall be in session on the sixth day of January succeeding every meeting of the electors.

The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer.

Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate [in this case, Vice President Pence], all the certificates and papers purporting to be certificates of the electoral votes [from the various states and the District of Columbia],

[these] certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A [reminding us where the alphabet starts];

said tellers, having . . . read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted . . . , the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States . . .

[BUT WAIT: BEFORE THE FINAL DECLARATION OF WHO WAS ELECTED]

Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. [So after the tellers announce the results from a given state or the District of Columbia, the Vice President will ask if there is any objection].

Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received.

When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision;

and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to . . . from which but one return has been received shall be rejected [for this election, that’s every state plus the District of Columbia],

[except that] the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.

[The law then explains in convoluted language what happens if a state submitted more than one certificate — but that has never happened]

When the two Houses have voted [on a particular objection], they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

Unquote.

Thus, after the Senate or House has rejected all of the objections, the Vice President, as stated above, reads the final numbers, declaring who was elected President and Vice President of the United States.

There may be pointless objections to the results from six states, beginning with Arizona and ending with Wisconsin, so the process that sometimes takes less than 30 minutes might not finish until Thursday. That’s if there are objections to all of those states and the Senate or House actually spend two hours discussing and voting on each objection, all of which will be defeated in both houses of Congress, even the one controlled by the odious Republican senator Mitch McConnell.

As we can see, the law requires the Vice President to open the envelopes, ask for objections and read the final result. He has no authority to do anything else. I expect he’ll say something to try to make President Nut Job happy, but perform his assigned tasks. If he grabs the certificates and runs away, or refuses to announce the final result, or announces it in Esperanto, things could get weirder than they already are.

Majority Rule Would Reveal How United We Are

Conservative columnist Jennifer Rubin of The Washington Post has given up on the Republican Party (“How Do We Hold the Traitors to Democracy Accountable?”):

The degree to which the Republican Party embraced an attempted coup is both chilling and unsurprising given the GOP’s descent into authoritarianism. It should prompt some soul-searching by Republicans who did not join the coup. Is this a party I should be associated with? Is this a party that can be trusted with power? If the answer to either question is no, they should form a new party whose only requirement is loyalty to the Constitution.

But she sees positive possibilities ahead (“America Isn’t Hopelessly Divided. It Only Looks That Way Because of Our Constitution”):

I get it — and agree with it to some extent: Americans are deeply divided, inhabiting two parallel political universes, ingesting different media and adhering to contradictory visions of America. One increasingly defines the United States as a bastion of White Christianity; the other sees a creedal nation defined by its founding documents. But perhaps the “civil war” perspective is overwrought and distorted.

First, let’s get some perspective. Yes, a shift of a mere 39,000 votes in a few close swing states in 2016 would have made Hillary Clinton president. And yes, an even slimmer shift of about 33,000 votes would have kept President Txxxx in office this year. But a shift of 269 votes in Florida in 2000 would have given the election to Al Gore. Were we more divided then?

More generally, we can see that it is the Electoral College that transforms President-elect Joe Biden’s margin of 7 million votes into a multistate nail-biter. But forget the Electoral College for a moment: Democrats have won the popular vote in the past four consecutive elections with margins ranging from 2.9 million (Clinton in 2016) to 10 million (Obama in 2008). And Al Gore, by the way, won by more than half a million votes nationally. One “solution” to the deep division problem, then, would be to junk the Electoral College.

A similar lack of majority rule gives Republicans control of the Senate, despite having support from a minority of the population. The disproportionate power of lightly populated states turns significant majority rule by Democrats into persistent minority rule by Republicans. Gerrymandering offers many Republicans a similar artificial advantage in their House seats.

In other words, we have an enduring and significant majority in favor of Democrats nationally, but our constitutional system consistently hands that advantage over to a Republican Party that is increasingly radical, irrational and racist. (As The Post’s Dan Balz writes, “For Txxxx supporters, cultural preservation of an America long dominated by a White, Christian majority remains a cornerstone of their beliefs.” That is the definition of white supremacy.)

We could get rid of the Electoral College by constitutional amendment or through the National Popular Vote Interstate Compact (which would instruct each state’s electors to cast their votes for the national popular vote winner). But there is an alternative answer, which is also a function of our constitutional system.

One positive aspect of the Txxxx era is that it made many Democrats understand the value of federalism. State lawmakers and election officials prevented a coup by the Txxxx campaign. State attorneys general, over the course of 138 cases, also blocked Txxxx on an array of issues. As NBC News reported, this includes: “the ‘travel ban’; the Deferred Action for Childhood Arrivals program, or DACA; family separations at the U.S.-Mexico border; the ‘national emergency’ declaration to build the border wall; international student visas; student loan protections; clean water rules; transgender health care protections; automobile emissions; a citizenship question on the 2020 census; U.S. Postal Service operations; and Obamacare.”

Federalism is not an unalloyed benefit to progressives, as we saw when states banned same-sex marriage, access to abortion and common sense precautions to prevent the spread of covid-19. But, if you combine the “laboratories of democracy” with local activism (which prevailed in one state after another on same-sex marriage) and a Democratic president’s persuasion, you might make real progress on everything from police reform to health care to education.

The other benefit of pushing decision-making down to the states is that state governments are less polarized and more functional than the federal government. Democratic governors work with Republican legislatures; Republican governors work with Democrats. Budgets get passed and balanced — without the backstop of printing money.

So where does that leave us? Our divisions are considerable — aggravated not solely by “polarization,” but also by the descent of one party into nuttery and by a Constitution that gives that party disproportionate power. Where possible, lawmakers should reduce that distortion (e.g., the National Popular Vote Interstate Compact) and deploy federalism.

Finally, our politics is more fluid than we imagine. Virginia and Colorado used to be dependable red states. No more. Stacey Abrams showed Georgia politics can shift as well. We need not accept that states are fated to remain in one partisan column. Activism, outreach and demography can change the electorate, and hence the result of elections.

The bottom line: Democrats have a small but stubborn national popular vote majority. The electorate as a whole agrees with their positions on gun safety, climate change and health care. The trick is expanding democracy, maximizing the benefits of federalism and working hard to create an electorate that resembles the increasingly diverse — and progressive — population.

Unquote.

Ms. Rubin doesn’t mention statehood for Washington, D.C. (pop. 685,000) and Puerto Rico (3.2 million), but giving full voting rights to citizens there would help restore majority rule to the Senate.

Minority Rule in America

The Electoral College system was established under Article II and Amendment 12 of the U.S. Constitution more than 200 years ago. What it means is that Americans vote for president indirectly. We see a candidate’s name on the November ballot, but we’re actually voting for a group of electors who will pick the winner in December. From Jamelle Bouie of The New York Times:

Under the Constitution, states can allocate electors — meaning electoral votes — in “such Manner as the Legislature thereof may direct.” Beginning after the Civil War, every state in the union has used direct popular election to choose electors. The modern process is straightforward. After the vote, election officials certify results and prepare “certificates of ascertainment” that establish credentials for each elector. There are multiple copies, and the governor signs each one. The electors meet, record their votes, and those votes and certificates . . . are sent to state and federal officials, including the vice president, who will preside when Congress counts electoral votes early next year. 

Under the theory of legislative supremacy over elections, however, . . . state legislatures could possibly circumvent governors and election officials to create different slates of electors to send to Congress, forcing a choice between the people’s electors and those of the legislature. If a state submits conflicting electoral votes, the House and Senate may choose which ones to accept or reject.

It has to be said that there is almost no chance of this happening . . .

[Note: I’d say there’s zero chance of it happening in enough states to change the result of the election. However:

We are living through a period in which, for reasons of geographic polarization in particular, the Republican Party holds a powerful advantage in the Senate and the Electoral College, and a smaller one in the House of Representatives. Twice in 20 years they’ve won the White House without a majority of votes. A few shifts here and there, and Txxxx might have won a second term while losing by a popular vote margin nearly twice as large as the one he lost by in 2016.

The Republican Party, in other words, can win unified control of Washington without winning a majority of the vote or appealing to most Americans. Aware of this advantage, Republicans have embraced it. They’ve pinned their political hopes on our counter-majoritarian institutions, elevated minority government into a positive good (rather than a regrettable flaw of our system) and attacked the very idea that we should aspire to equality in representation. “Democracy isn’t the objective; liberty, peace, and prosperity are,” Senator Mike Lee of Utah tweeted last month. “We want the human condition to flourish. Rank democracy can thwart that.”

“Rank democracy.” Perhaps Lee, one of the leading intellectual lights of the Republican Party, is alone in his contempt for political equality between citizens. But I doubt it. And a Republican Party that holds that view is one that will do anything to win power, even if it breaks democracy. It’s a Republican Party that will suppress voters rather than persuade them, degrade an office rather than allow the opposition to wield it and create districts so slanted as to make it almost impossible for voters to remove them from office.

For that Republican Party, the Electoral College is a loaded gun, waiting to be fired. We’ll disarm and disassemble it as soon as possible, if we value this democracy of ours.

Unquote.

The good news is that there is an effort underway to practically eliminate the Electoral College. From NBC News:

[By approving Proposition 113 last week,] Colorado voters have decided to join a growing list of states that hope to decide a president by popular vote, the latest move in a national chess match over the way the United States elects its presidents.

Called the National Popular Vote Interstate Compact, the agreement calls for states to award their electoral votes to the winner of the national popular vote, once enough states join the agreement.

So far, 15 states and the District of Columbia have approved the pact, covering 196 electoral votes of the required 270 to win the presidency.

That 270 matters: The states that have approved legislation to join the compact agreed it would not take effect until the 270 threshold is reached. Once it does, those states will have the power to use their Electoral College votes to elect a winner, according to the popular vote. This uses the Electoral College to effectively phase out the Electoral College . . . 

Unquote.

These are the states that have enacted the Interstate Compact. Will enough voters, legislatures or governors one day agree to elect presidents by majority rule? It’s not a sure thing, but it’s more feasible than eliminating the Electoral College by amending the Constitution.

Untitled

E Pluribus Unum, For Better Or Worse

Perhaps you’ve looked at a map and thought it might be a good idea if the United States came apart at the seams. I have. If only we could make those other people go away!

Abraham Lincoln didn’t agree, of course, but he never met our current president or Mitch McConnell. 

Akim Reinhardt, a history professor in Maryland, says we should seriously consider the idea:

Is there anything more clichéd than some spoiled, petulant celebrity publicly threatening to move to Canada if the candidate they most despise wins an election? These tantrums have at least four problems:

1. As if Canada wants you. Please.
2. Mexico has way better weather and food than Canada. Why didn’t you threaten to move there? Is it because of all the brown people? No, you insist. Is it the language? Well then if you do make it to Canada, here’s hoping they stick you in Quebec.
3. New Zealand seems to be the hip new Canada. I’ve recently heard several people threaten to move there. News flash, Americans: New Zealand wants you even less than Canada does.
4. [Note: #4 isn’t really a problem so I’m leaving it out.]

. . . I’ve got a much better alternative: Stay put and begin a serious, adult conversation about disuniting the states.

If, through the vagaries of the Electoral College, 45% of U.S. voters really do run this nation into an authoritarian kleptocratic, dystopian ditch, then instead of fleeing with your gilded tail between your legs, stay and help us reconfigure the nation. It might be the sanest alternative to living in Txxxx’s tyranny of the minority, in which racism and sexism are overtly embraced, the economy is in shambles, the pandemic rages unabated, and abortion may soon be illegal in most states as an ever more conservative Supreme Court genuflects to corporate interests and religious extremists.

And of course it cuts both ways. Should current polls hold and Joe Biden manage to win the election with just over half the popular vote, those on the losing side will be every bit as upset. So upset that they too would likely open to a conversation about remaking an America.

Indeed, no matter how this turns out, about half the nation will feel like they can no longer live with what America is becoming, even as they live in it. The losing side, whichever it may be, will want to wrest this country back from those who seem increasingly alien to them. So perhaps national salvation comes when the winning side remains open to a discussion the losers will launch about radically redesigning the United States. . . .

It is time for the rest of us to begin a serious discussion about national disincorporation. About disuniting the states. Because no matter who wins, about half the nation will not want to live with it. Tens of millions of Americans on the losing side will not trust the winner to govern fairly, competently, or with the nation’s best interests at heart.

It’s a recipe for disaster. We need to get ahead of this discussion. . . .

Let me be clear. I am not advocating a unilateral declaration of secession and military assault on federal installations like the treasonous, Confederate slave-owners did in 1861. Rather, I am advocating serious discussions about untangling this fractured nation. For finding a peaceful, constitutional solution that either dissolves or drastically reconfigures the United States.

I believe it may be the most sensible and mature approach to dealing with a deeply riven partisan divide that has done nothing but worsen these last forty years, and increasingly breeds mutual frustration and resentment among tens of millions of Americans. The U.S. constitutional system is predicated on compromise, and the Republican Party has spent the last quarter-century working against compromise with increasing fervency. That’s not a smear, it’s a statement of fact. It’s a central tenet of their politics. Republicans are openly dismiss compromise and try to get everything they want and accept nothing they don’t.

It has become dysfunctional. And it’s not going to change anytime soon. . . .

Though perhaps unfathomable at first glance, we may actually be nearing the point where a majority of Americans are ready to call it quits on our current national incarnation. . . .

After all, in the world of national governments, 231 years is a really long time. And it wouldn’t even be our first rodeo.

We have done this before. The Constitution, drafted in 1787 and ratified in 1789, peacefully replaced an earlier form of United States national government organized under the Articles of Confederation. Yes, drafting the Constitution and getting the nation to adopt it over the Articles were difficult processes, hardly perfect, and engendered a fair bit of acrimony at the time. But it came about, peacefully (for the most part), and led to something that’s lasted well over two centuries.

Is it so impossible then to imagine the United States reconfiguring itself once again?

Of course a new United States could take many shapes. . . .

But regardless of what shape it might take, perhaps the most important thing is to have the conversation. Like adults. To talk about what it means to share national governance; how it’s working to our satisfaction, and how it’s not; and what we might do to improve it. . . .

Or perhaps, irony wins the day. Maybe serious discussion about disunion actually help decrease partisan tensions. Simply broaching the topic in a serious manner may force many Americans to recognize how close we are to losing we’ve always known.

Or perhaps such discussions really do lead many Americans to decide that it’s time to replace We the People, with You and Us the People.

Unquote.

Prof. Reinhardt has a few ideas about how this dismemberment might be accomplished. We might become two or three nations; change the Constitution to give more power to individual states; combine states or divide them up, etc. To use two old phrases, thinking about dividing the U.S. is a parlor game and a pipe dream.

Here’s one reason. Although we think of blue states and red states, some of them are purple. In addition, if you drill down further, America is an even greater mixture of blue and red. This is a map with counties marked blue or red depending on how they voted in 2016, with each county assigned space on the map based on its population.

countycartrb512

Assigning either blue, red or purple to each county based on the percentage that voted one way or the other would make it even harder to separate us by our political leanings.

I think a better and more practical solution will be to reinstate majority rule in the United States by making the Electoral College obsolete, getting rid of the filibuster in the Senate and granting statehood to Puerto Rico and Washington D.C. That would allow the federal government to pursue more progressive policies, which would help the economy, allow more social ills to be addressed and reduce inequality.

We also need to remove some of the emotion surrounding three issues: abortion, gun control and the Supreme Court. Abortions are already becoming more rare; putting more emphasis on education and birth control would reduce them further. Private ownership of guns is here to stay; but somehow we need to do what the majority of Americans want, i.e.  institute sensible gun control. A revised, clarified Second Amendment might allow us to do that while protecting a citizen’s “right to bear arms”. The Supreme Court has become too political. I’d add three seats, so we’d have 12 justices evenly divided between Republicans and Democrats. No more 5-4 decisions. If a ruling can’t get a majority, let the lower court decision stand. 

Maybe thinking about how we could make America a better country for people on the right and left and in the middle is also a parlor game and a pipe dream. It seems to me, however, that a more perfect union is within our grasp if we make the effort. It would be much harder to make those other people go away.