This article appears in the Winter 2019 issue of The American Prospect magazine. Subscribe here.
Americans cling to many myths. One is that we live in a democracy. To be sure, there are aspects of our government that are democratic. There are regular elections that choose many of the officials who make the laws and govern our society. But in other ways, American government is profoundly undemocratic.
We are governed by a president who lost the popular vote by three million votes. Twice in the last 16 years, the candidate who lost the popular vote was nonetheless selected as president because of the Electoral College. There is no other democratic country in the world where that can happen.
Nor does any other democracy have an institution like the U.S. Senate. Because every state, regardless of its size, gets two senators, the Senate is hugely unrepresentative of the country. California, with 39.5 million people, has the same number of senators as Wyoming, with a population of 579,315. A slight majority of Americans live in just nine states. They have 18 votes in the Senate, while the minority holds 82 seats.
These aspects of government cannot be reconciled with the claim that the United States is a democracy. And the democratic process offers no hope of reforming a number of them. Changing some fundamental constitutional provisions would require an amendment passed by two-thirds of both houses of Congress and three-fourths of the states. A democratic majority is powerless to make constitutional changes, and the small states that benefit from greatly exaggerated representation will block a constitutional amendment.
Yet the Constitution sets out its aspiration of democratic governance in its first few words: “We the People.” These words in the Preamble to the Constitution are enormously significant and underappreciated in making clear that the United States shall be a democracy. Democracy was hardly the most common form of government in the late 18th century. “We the People” conveys that it was the people who were creating the Constitution and therefore the people who hold ultimate sovereignty. This was in stark contrast to England, and most countries in the world at the time, where sovereignty was thought to reside in a monarchy.
Some anti-democratic aspects of the Constitution seem impossible to realistically change.
I cannot think of any solution to the anti-democratic nature of the Senate. Recently, New York University Law Professor Burt Neuborne suggested that the undemocratic nature of the Senate could be changed if the largest states—California, New York, and Illinois, for instance—break into smaller states. This seems quite unlikely and would cause enormous practical problems. A proposed initiative to break apart California into four states has garnered little support.
Yet I regard the difficulty of amending the Constitution as a good thing. The Constitution is meant to be an anti-majoritarian document to safeguard some of our most precious values—the structure of government, individual rights—from easy change by the majority.
But there are other anti-majoritarian aspects of the Constitution and American government that can and should be changed. The two most important for our political process are the Electoral College and partisan gerrymandering.
The Electoral College
The only number that matters in a presidential election is 270. That is the number of electoral votes it takes to be elected president of the United States. There are 538 electors and victory requires getting a majority in the Electoral College. If no candidate receives a majority, then the House of Representatives chooses the president, with each state getting one vote.
Each state has the number of electors equal to the sum of its senators and representatives. Additionally, the 23rd Amendment allocates three electors to the District of Columbia. The six states with the most electors are California (55), Texas (38), New York (29), Florida (29), Illinois (20), and Pennsylvania (20). The seven smallest states in population—Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming—each have three electors.
The Electoral College emerged as the way of choosing the president late in the deliberations at the Constitutional Convention in 1787. Many different methods of selecting the president were debated—among them, direct popular election, selection by the governors of the states, and election by Congress as in a parliamentary system. The Electoral College, once proposed, attracted widespread support at the Constitutional Convention.
In large part, this reflected the distrust of majority rule on the part of the framers of the Constitution. They required senators to be chosen by state legislatures, Supreme Court justices and lower federal court judges selected by the president with Senate approval, and the president determined by the Electoral College. There is no doubt that the Electoral College was created because of a distrust of the people and democracy. Alexander Hamilton, in Federalist No. 68, explained that the “immediate election [of the President] should be made by men most capable of analyzing the qualities adapted to the station.” He said that the electors should be a “small number of persons, selected by their fellow-citizens from the general mass, [who] will be most likely to possess the information and discernment requisite to such complicated investigations.” Hamilton effused that “if the manner of [presidential election] be not perfect, it is at least excellent. It unites in an eminent degree all the advantages the union of which was to be desired.”
Small states strongly favored the Electoral College because it gave them much greater influence than they would have in direct election of the president. Today, in fact, states with only 23 percent of the country's population have enough electoral votes to choose the president.
The Electoral College also was very much a product of the compromises concerning slavery that were at the core of the Constitution's drafting and ratification. Prior to considering the method of choosing the president, the Constitutional Convention had agreed to the “three-fifths clause,” the provision in Article I of the Constitution that had slaves counted as three-fifths of a person for the purpose of determining population for allocating seats in the House of Representatives. But slaves obviously could not vote. Southern states would not get the benefit of this population in presidential elections. The Electoral College was proposed to deal with this: Electors would be allocated based on seats in Congress and slaves would count toward that. If the president were directly elected by the voters, the voters in the North would outnumber Southern voters because the South's half-million slaves were not voters.
This was explicitly understood and expressed at the Constitutional Convention. One delegate, Oliver Ellsworth of Connecticut, proposed “electors” appointed by the state legislatures. Ellsworth's plan had electors apportioned based on population so that small states would have no special advantage. In response, James Madison, a slaveholder from Virginia, said that “one difficulty … of a serious nature” made election by the people impossible. Madison noted that the “right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes.”
AP Photo/Zach Gibson
Hugh Williamson, a delegate from North Carolina, was even more explicit about this. He noted that under a direct election of the president, Virginia would be at a disadvantage because “[h]er slaves will have no suffrage.” The same would be true for all of the South.
As Yale Law Professor Akhil Reed Amar has repeatedly pointed out, the Electoral College “was originally much more about slavery than about a big-state, small-state balance.” This, in itself, should make us deeply uncomfortable with the Electoral College.
Most fundamentally, the Electoral College is inconsistent with the core constitutional value of democratic governance. Five times in American history—in 1824, 1876, 1888, 2000, and 2016—the candidate who lost the popular vote became president. On November 6, 2012, Donald Trump tweeted, “The electoral college is a disaster for a democracy.” For once, I can say that Trump was right. The United States is the only country in the world that chooses its leader of government in this way and the only nation where a person who loses the popular vote can be chosen as its chief executive.
But I want to go further than to argue that the Electoral College is undesirable: I believe that it is unconstitutional and should be declared unconstitutional.
Before I explain why, it is worth thinking about whether a provision of the Constitution can itself be unconstitutional. The answer is clearly yes if it violates one of the subsequent amendments to the Constitution. The provisions about slavery in the Constitution were repealed by the 13th Amendment. Article I authorizes Congress to regulate interstate commerce and this would allow federal licensing of the press, except that the First Amendment unquestionably makes that unconstitutional. Article III permits a federal court to hear a suit against a state by citizens of other states. But the 11th Amendment was adopted to preclude such litigation and has been interpreted broadly by the Supreme Court to prevent states from being sued. The amendments to the Constitution modify its text.
The Supreme Court long has held that the Fifth Amendment's assurance of due process of law includes a requirement that the federal government not deny any person equal protection of the laws. And for over half a century, the Court has ruled that a core aspect of equal protection is one person, one vote, that every person must have an equal ability to influence the outcome of an election. In Wesberry v. Sanders in 1964, the Supreme Court announced that as much as practicable, the Constitution requires that “one man’s vote … is to be worth as much as another’s.” In Bush v. Gore, in 2000, the Court stated, “Having once granted the right to vote on equal terms, the State may not … value one person’s vote over that of another.”
The Electoral College is inconsistent with this basic principle of democracy: one person, one vote.
Because every state has two senators, smaller states have disproportionate influence in choosing the president. Wyoming, with a population of 579,315, has three electoral votes, which means that each Wyoming elector represents 193,105 voters. California, with a population of 39.5 million, has 55 electoral votes, so each elector represents 718,818 voters. Each presidential vote in Wyoming is worth roughly 3.72 times more than each vote in California. Courts thus can and should declare that the guarantee of equal protection found in the Fifth Amendment modifies Article II of the Constitution and requires that electors be allocated strictly on the basis of population.
At first blush, there is likely discomfort with the courts fundamentally changing the system for the election of president by declaring unconstitutional the method of choosing the president outlined in Article II. But the judicial role is most important when the political system is incapable of reforming itself to comply with the Constitution. This is exactly why the Court's decisions concerning apportionment were so crucial. Prior to the 1960s, many state legislatures and congressional districts were badly malapportioned; within a state they varied widely in population. But those who benefited from this were not about to redraw legislative districts to vote themselves out of power. The Court then articulated the rule of one person, one vote: For any legislative body, all districts must be about the same in population. Earl Warren, who was the Court's chief justice when these rulings were made, remarked that the most important decisions during his tenure on the Court were those ordering reapportionment, precisely because the political process never was going to solve the constitutional problem.
The same is true with regard to the Electoral College. Amending the Constitution requires approval of two-thirds of both houses of Congress and then three-fourths of the states. There is no way that smaller states that benefit greatly from the Electoral College ever will approve a constitutional amendment to eliminate it. There have been innumerable proposed constitutional amendments to change the Electoral College; one commentator estimated that “nearly one-tenth of all constitutional amendments proposed in Congress have sought electoral college reform.” It is especially important for the Court to act because the political process never will deal with the clear unconstitutionality of the Electoral College.
The problem of the Electoral College is compounded by state laws that provide that electoral votes are awarded on a winner-take-all basis. In all states except Nebraska and Maine, the candidate who wins the popular vote in a state—even by the narrowest margin—gets all of the electoral votes from that state. This, too, greatly increases the chances of the Electoral College choosing a president who lost the popular vote.
AP Photo/Jacquelyn Martin
Effectively, winner-take-all meant that a vote in 2016 for Donald Trump in California or Hillary Clinton in Texas had absolutely no effect on the outcome. Nebraska and Maine allocate electoral votes by congressional district, with the elector for each congressional district voting for the candidate who got the majority of the votes there, with the two remaining electors chosen statewide. Accordingly, there is a much more proportional allocation of electoral votes in Nebraska and Maine than in all other states.
At the very least, the courts should hold “winner take all,” provided by state law and not the Constitution, to be unconstitutional. A lawsuit to do this is pending now. This would not entail declaring the Electoral College unconstitutional; it would merely strike down state laws that allocate electors. This would greatly increase the chances that the winner of the popular vote would be chosen as president. That is what should happen in a democracy.
It is hard even to come up with a justification for a system for electing the president that is so inconsistent with basic principles of democratic governance. A primary justification advanced in recent years is that the Electoral College causes presidential candidates to pay attention to smaller states, that presidential candidates would seldom campaign in such states. I question whether this is sufficient reason to justify the profoundly anti-democratic Electoral College. Besides, the Electoral College system compels candidates to largely ignore and not campaign in states where it is obvious who is going to win. I live in California, where there were very few ads from either candidate in the weeks leading up to the 2016 presidential election. I am sure the same was true in Texas. But when I was in Ohio weeks before the election, ads for the candidates were everywhere. Any system of election will influence where campaigning is done, but that is not a reason to keep the Electoral College.
The Constitution should be interpreted to mean that the requirement for equal protection found in the Fifth and 14th Amendments modifies the text of Article II, which allocates representatives in the Electoral College. If nothing else, courts should invalidate state laws requiring winner-take-all and require allocation of electors proportionate to population. Never again should there be the election of a president who lost the popular vote.
Partisan Gerrymandering
Partisan gerrymandering—where the political party controlling the legislature draws election districts to maximize seats for that party—is nothing new. The practice is named for Massachusetts Governor Elbridge Gerry, who in 1812 signed a bill that redrew state senate districts to benefit his Democratic-Republican party. But what has changed is the development of sophisticated computer programs and other techniques that make partisan gerrymandering far more effective than ever before. The political party that controls the legislature now can draw election districts to gain a much more disproportionate number of safe seats for itself.
This is exactly what occurred in Wisconsin, where Republicans took advantage of their control of the legislature after 2010 to give themselves a much greater number of seats relative to their voting strength. The Republicans employed two gerrymandering techniques in order to lessen the effect of votes for Democrats statewide: “cracking,” which is “dividing a party's supporters among multiple districts so that they fall short of a majority in each one,” and “packing,” which is “concentrating one party's backers in a few districts that they win by overwhelming margins.”
The gerrymandering worked. As a federal court explained: “In 2012, the Democrats received 51.4% of the statewide vote, but that percentage translated into only 39 Assembly seats. A roughly equivalent vote share for Republicans (52% in 2014), however, translated into 63 seats—a 24 seat disparity.” Put another way, “In 2012, the Republicans won 61% of Assembly seats with only 48.6% of the statewide vote. … In 2014, the Republicans garnered 52% of the statewide vote but secured 64% of Assembly seats. … Thus, the Republican Party in 2012 won about 13 Assembly seats in excess of what a party would be expected to win with 49% of the statewide vote, and in 2014 it won about 10 more Assembly seats than would be expected with 52% of the vote.”
The same is true in many other states. In North Carolina, essentially a purple state, Republicans have nearly evenly split the total vote for U.S. House members with Democrats but control 10 of 13 congressional seats. In Pennsylvania, where the voters are fairly evenly split between the parties, gerrymandering meant that Republicans had 13 of the state's 18 seats in the U.S. House of Representatives. After the Pennsylvania Supreme Court struck down the gerrymander as violating the Pennsylvania Constitution and redrew the district lines, Democrats emerged from the 2018 elections with nine U.S. House seats, with the Republican total reduced to nine as well.
Like the Electoral College, partisan gerrymandering is inconsistent with basic principles of democratic government, as well as constitutional guarantees of equality in voting. Democracy enables voters to choose their elected officials, but partisan gerrymandering enables elected officials to choose their voters. Justice John Paul Stevens expressed this well when he stated in a dissent: “[The] danger of a partisan gerrymander is that the representative will perceive that the people who put her in power are those who drew the map rather than those who cast ballots, and she will feel beholden not to a subset of her constituency, but to no part of her constituency at all. The problem, simply put, is that the will of the cartographers rather than the will of the people will govern.” Even Justice Antonin Scalia, who wrote the opinion that partisan gerrymandering cannot be challenged in the federal courts, noted “the incompatibility of severe partisan gerrymanders with democratic principles.”
Indeed, up until now, the Supreme Court has refused to deal with this serious threat to democratic governance.
In Vieth v. Jubelirer, in 2004, the Court dismissed a challenge to partisan gerrymandering, and a plurality of four justices said that such suits are inherently nonjusticiable political questions. Scalia concluded that challenges to partisan gerrymandering are “political questions” that cannot be adjudicated by the courts. Joined by Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas, Scalia wrote that there are no judicially discoverable or manageable standards and no basis for courts ever to decide that partisan gerrymandering offends the Constitution.
Justice Anthony Kennedy, concurring in the judgment, provided the fifth vote for the majority. He agreed to dismiss the case because of the lack of judicially discoverable or manageable standards, but also wrote that he believed that such standards might be developed in the future. Thus, he disagreed with the majority opinion that challenges to partisan gerrymandering are always political questions; he said that when standards are developed, such cases can be heard. Justices Stevens, David Souter, and Stephen Breyer wrote dissenting opinions, which Justice Ruth Bader Ginsburg joined, arguing that there are standards that courts can implement.
In November 2016, a three-judge court in Wisconsin found that state's partisan gerrymandering to be unconstitutional. This was the first court to find gerrymandering to be unconstitutional since the Supreme Court decisions a decade earlier. In a lengthy opinion, the court found that it now is possible to measure the effects of partisan gerrymandering by quantifying an “efficiency gap.” The court explained that “[t]he efficiency gap is the difference between the parties' respective wasted votes in an election, divided by the total number of votes cast.”
As I have written in a 2017 article for the Sacramento Bee, the court applied this through a three-part test: First, plaintiffs have to establish that a state had an intent to gerrymander for partisan advantage. Second, the plaintiffs need to prove a partisan effect, by proving that the efficiency gap for a plan exceeds a certain numerical threshold. Third, and finally, if the plaintiffs meet these requirements, then the burden is on the defendants to rebut the presumption by showing that the plan “is the necessary result of a legitimate state policy, or inevitable given the state’s underlying political geography.” If the state is unable to rebut the presumption, then the plan is unconstitutional.
The three-judge court used this test and concluded in a 2-to-1 decision that the election districts for the Wisconsin legislature were drawn with the purpose and effect of enhancing Republican seats and decreasing those for Democrats. The court found no legitimate purpose for this disparity and found the partisan gerrymandering to be unconstitutional.
AP Photo/Elaine Thompson
The Supreme Court granted review of the case, Gill v. Whitford, and heard oral arguments in October 2017. Many thought it would be a vehicle for the Court to declare partisan gerrymandering unconstitutional. But in June 2018, the Court reversed the lower court on procedural grounds, holding that the plaintiffs failed to prove that they lived in districts that had been affected by partisan gerrymandering. The Court sent the case back to the lower court to give the plaintiffs the chance to do this. The issue is sure to come back to the Supreme Court, though with Brett Kavanaugh succeeding Anthony Kennedy on the bench, it is harder to see a majority of the justices concluding that partisan gerrymandering is unconstitutional. Perhaps, as in Pennsylvania, a state court might find gerrymandering to violate its state constitution, but this is unlikely to happen in many places.
Nonetheless, there is strong public support for eliminating partisan gerrymandering. A Harris Poll found that more than seven in ten Americans believe (71 percent, with 48 percent strongly so) “that those who stand to benefit from redrawing congressional districts should not have a say in how they are redrawn.” The Harris Poll revealed “comparable views when compared by both political affiliation” (74 percent of Republicans, 73 percent of Democrats, and 71 percent of independents) and “underlying political philosophy” (69 percent conservative, 71 percent moderate, and 73 percent liberal). Indeed, partisan gerrymandering long has been condemned. As a brief that historians filed in the Supreme Court explained: “Contrary to some misconceptions, although partisan gerrymanders have occurred at various times, they never have been regarded as an acceptable feature of American democracy. Rather, consistently since its inception, partisan gerrymandering has been forcefully denounced as unconstitutional, as a form of corruption that threatens American democracy, and as an infringement on voters' rights.”
But as with the Electoral College and the malapportionment of legislatures before the one-person, one-vote court rulings, the legislative process will not fix the problem. Legislators who benefit from partisan gerrymandering are not about to vote for an alternative election system that has a likelihood of taking them and their political party out of power.
Partisan gerrymandering is undesirable whether done by Democrats or Republicans. The Supreme Court should hold that challenges to it can be heard in the federal courts and explain that districting is unconstitutional when it disproportionately favors a political party with no other explanation besides partisanship. This is a chance for the Court to take a huge step to having our democratic process work.
In recent years, some states have removed the redistricting function from legislatures. California and Arizona are among a minority of states where voters, through the initiative process, have established independent commissions to draw election districts. In this year's midterm elections, voters in Michigan, Missouri, Colorado, and Utah voted to establish such commissions, too. Justice Ginsburg, writing for the Court in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), explained that independent redistricting commissions are desirable because they “impede legislators from choosing their voters instead of facilitating the voters’ choice of their representatives.” Of course, that decision, upholding independent districting commissions for congressional seats, was decided on a 5-to-4 vote, with Justice Kennedy in the majority. Now that he’s retired, the Court conceivably could revisit that ruling.
Partisan gerrymanders and the Electoral College make a mockery of the notion that the United States is a functioning democracy. We have lived with these mockeries for far too long. They can be eliminated, or at minimum, they can be significantly scaled back. It can be done. It must be done.
