It's Dangerous When the Minority Party Rules Everyone Else

By Seth Masket, The Washington Post

27 September 20

Republicans get fewer votes, but they’re about to lock down the Supreme Court.

efore the end of the year, Amy Coney Barett will probably be sworn in as a Supreme Court justice — and she may serve for decades. She will have been appointed by an impeached president who lost the popular vote in 2016 and may well continue in office after losing it again in 2020. She will almost certainly be approved by senators representing less than 45 percent of the American population.

Our nation is moving even deeper into minority rule: The House aside, the U.S. government is controlled by the less popular party in a polarized two-party system. We may call this unfair, but that would trivialize the problem. It is entirely permissible under the Constitution, and it is dangerous. When the majority of a nation’s citizens can’t get its candidates elected or its preferred policies passed, the government’s legitimacy is compromised and destabilizing pressure begins to build.

The tendency toward minority rule in the United States, present since the founding, has become more acute. That’s certainly true in the Senate: California has 68 times as many residents that Wyoming has, but the same number of senators. The disparity in population size between the biggest and smallest states is far greater than anything the founders knew.

Residents of rural, sparsely populated states are vastly overrepresented in the Senate. And because the electoral college is based on the number of federal representatives, this rural-state overrepresentation plays out in the selection of presidents, as well. Former vice president Joe Biden could well win the popular vote by three or four percentage points, or even more, this fall and still not be elected.

The House, the most democratic institution in the three branches of government, has no role in selecting Supreme Court justices. That’s the purview of the president and the Senate, which means that the composition of the high court has a minoritarian, rural-state bias built into it as well. (According to a Washington Post-ABC News Poll, only 38 percent of Americans say the replacement for Justice Ruth Bader Ginsburg should be nominated by Trump and confirmed by the current Senate; 57 percent say the nomination should be left to the winner of the presidential election, and put to a Senate vote next year.) Should a Trump nominee be confirmed, the Supreme Court will consist of six justices appointed by Republicans, even though the party has won the popular presidential vote only once in the past seven elections (George W. Bush, in 2004).

On its own, a rural state bias in representation is potentially problematic but not invidious. Plenty of issues in rural states should receive national attention, of course. But the problems mount when one party dominates the rural areas and the other dominates the urban ones, which is where we stand today. Republicans essentially get bonus points: They can be the less popular party and still get to govern.

Political science research reveals that ideologically extreme parties tend to do worse in elections than more moderate parties, and that parties that find themselves in the minority — and out of power — recognize the problem and recalibrate toward the center. But because of their built-in systemic advantage, Republicans face no such check. They have come to prefer winning narrowly with committed partisans than winning broadly with unreliable moderates. Such a strategy helped bring the nation President Trump.

This presents a further problem: How are Democrats to respond to an increasingly extreme, Trumpist Republican Party? Democratic leaders, when pressed with examples of Trump’s latest malfeasance, typically respond with, in effect, a one-word answer: “Vote.” It’s good advice, of course. But what if it’s not enough? What if Democrats continue to bring more people to the polls than Republicans but Republicans maintain control of most of government?

Democrats largely responded to the presidential elections in 2000 and 2016 — in which they won the popular vote — by conceding that rules are rules, and sometimes the more popular candidate just doesn’t get to be president. But how many such defeats will they take in stride? There may be a tipping point at which the situation becomes intolerable.

Since George Floyd’s death, in police custody, at the end of May, enormous numbers of protesters (many, although hardly all, Black) have taken to the streets to demand change. They have done so in large part because, with considerable justification, they don’t think that working within the system — voting regularly, calling their elected officials, showing up at city council meetings, etc. — is producing the change they need. Black people are still being killed by police officers who face few or no consequences. Protest and unrest are a predictable outcome when a population thinks the political system is completely unresponsive to its needs.

Imagine that dynamic multiplied many times over. When well more than half the country votes for one result — over and over — and continues to get another, the situation is unsustainable. This is how a government loses its legitimacy. Governments worldwide facing legitimacy crises have been faced with struggling to govern, as we saw in the Philippines under Ferdinand Marcos, or brutally cracking down on protests, as we saw in Egypt under Hosni Mubarak and continue to see under Abdel Fatah al-Sissi. It’s an ugly situation, and the United States is not immune.

Reform is possible — in theory. The Constitution can be amended to substantially change the electoral college procedure, as happened in 1804 when the 12th Amendment was ratified, allowing separate votes for president and vice president. But as long as one party considers the current system advantageous, it’s hard to imagine such an amendment attracting the supermajority support needed to pass. Other reforms — such as an interstate compact that would make presidential elections subject to the popular vote — are possible without an amendment.

And that reform, too, faces the brutal logic of minority rule: The party in power will fight desperately to keep its entrenched advantage (and deepen it, if possible). Almost by definition, the longer the anti-democratic spiral continues, the harder it becomes to reverse. And it’s not a counterargument to say that the advantages the Republicans have today are “constitutional.” In fact, that’s the heart of the problem.