Presidential elections and Senate seats underscore fact that this is not a democracy

A crucial lesson has been missed in discussing the Nov. 3 election: the United States is not a democracy. In a democracy, the majority governs. But the government we live under is profoundly anti-majoritarian.

Most obviously, the Electoral College makes no sense as a way for a democracy to choose a president. Everyone rightly focused on the vote counts in Pennsylvania, Georgia, Arizona and Nevada and which candidate could get enough electoral votes to reach 270 in the Electoral College.

Little attention was paid to the fact that Joe Biden decisively won the popular vote by over 4 million votes.

In a democracy, the candidate with the most popular votes should win. But five times in American history, including in 2000 and 2016, the loser became president of the United States. This anti-democratic feature of the Electoral College was intentional.

Alexander Hamilton, in Federalist 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 it should be a “small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.”

The Electoral College was also 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 towards 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.

The Electoral College meant that each southern state could count its slaves as three-fifths of a person in its share of votes in the Electoral College. This was explicitly understood and expressed at the Constitutional Convention.

But it is not just the Electoral College that is anti-democratic. Every state, regardless of population, has two U.S. senators. A voter in Wyoming (population 579,000) enjoys roughly 70 times more influence in the Senate than a voter in California (population 39.5 million).

When the Constitution was written, the difference between the largest and the smallest states was 12 to 1; now it is 68 to 1. Senators representing as little as 22% of the population can constitute a majority in the Senate.

The Supreme Court and the federal judiciary were created to be anti-democratic, with justices and judges appointed by the president and confirmed by the Senate.

Although I agree with the need to shield the judiciary from politics, the result is that a president who lost the popular vote can nominate a justice who is confirmed by a Senate that represents a minority of the population.

This is not hypothetical: Democrats have won the popular vote in seven of the last eight elections. But during this time, Republican presidents have appointed five Supreme Court justices while Democratic presidents have appointed just two. President Donald Trump, who lost the popular vote in 2016, appointed three justices, all of whom were confirmed by Senators representing a distinct majority of the population.

Even the House of Representatives that is supposed to be the most majoritarian body with seats allocated by population is anti-democratic because of partisan gerrymandering. In a majority of the states, the state legislature draws congressional districts and, with the aid of sophisticated computer programs, can ensure who will control the seats.

In 2018, Republican and Democratic congressional candidates in North Carolina received in total about the same number of votes. But because of partisan gerrymandering, Republicans won 10 of 13 seats from North Carolina in the House of Representatives.

It is long overdue to stop describing our country as a democracy. If we saw a foreign country designing a government like this, we would condemn it.

There are not easy solutions. Eliminating the Electoral College and changing the composition of the U.S. Senate would take constitutional amendments. But it is time to think seriously about what reforms are possible, such as the National Popular Vote Compact, where states would pledge their electors to the candidate who wins the popular vote.

We deserve to live in a democracy.

This story was originally published November 11, 2020 at 9:52 AM.