In almost 30 years a party has lost the popular vote in seven out of eight elections and yet its nominees have won the presidency three times. Twenty percent of the population can produce a majority of seats in one of the two legislative Houses. Eleven percent of the population can produce enough votes to block legislation. A party has won most election cycles in 26 years but the other party has controlled one of the two legislative Houses for most of this period.
One would guess that these stark examples of counter-majoritarian rule have occurred in some dysfunctional state that happens to be new to democratic rule. But that would be a wrong guess. These electoral outcomes have happened in the U.S. And they are mostly the result of the rules that apply to the Electoral College and the Senate. Indirectly the electoral advantage of the minority built into these two bodies also spills into the appointment of justices in the Supreme Court. These examples are only a part of the evidence the political science professors Steven Levitsky and Daniel Ziblatt present in their newest book Tyranny of the Minority. As the authors point out this bias in favor of the minority has become more pronounced in the 21st century.
These electoral distortions are the result of the bias in favor of sparsely populated rural states that has worsened since the adoption of the Constitution almost two and half centuries ago. In more recent times state voting rules have also produced disproportional apportionment of seats in state legislatures. This can happen through partisan gerrymandering. Levitsky and Ziblatt offer Pennsylvania as a case in point. Since 2000 the Democratic Party has won four of the five state-wide elections, and yet it is the Republicans that have dominated the state legislature whose members are elected district by district.
The counter-majoritarian features of American democracy raised concerns long time ago but efforts to rectify them have failed as a result (you guessed it) of the supermajorities needed in the Congress and the number of approving states. Since the popular vote is not proportionately reflected in the Senate and does not matter in the count of states, amending the U.S. Constitution is extremely difficult. As a result, the U.S. is ranked at the top of the Index of Difficulty of amending the constitution among other democracies. For example, there have been approximately 700 failed attempts to abolish the Electoral College, the last one falling victim to the filibuster rule in 1979. Interestingly, the filibuster has no constitutional origin, and to the contrary, as pointed out by Levitsky, Ziblatt and others, the Framers of the Constitution were not in favor of supermajority rules in the legislative bodies. Instead, they sought to protect the rights of the minority through the Bill of Rights and additional amendments.
A negative byproduct of counter-majoritarian rules is that they incentivize the competing parties to concentrate their appeal to a minority of voters as long as these voters can produce electoral wins. The best way to achieve that is to suppress the voting rights of the likely voters of the other party. Indeed, vote suppression has a long and sad history in the U.S. It started in earnest with the suppression of Black votes following the demise of the Reconstruction in the South after 1877 and has continued despite the passage of the Voting Rights Act in 1965. Both major parties share the blame in this connection. The Democratic Party was complicit in the suppression of the Black vote after the Reconstruction whereas the more recent vote suppression tactics targeting likely Democratic voters are being pursued by the Republican party. Contemporary America is the country of super-efficient operations in all areas of human activity but voting. Whereas other democracies strive to enable more citizens to vote, the opposite seems to happen here.
The circumstances surrounding the adoption and subsequent weakening of the Voting Rights Act highlight the ambiguous allegiances of Democrats and Republicans to the protection of the democratic right to vote. Although the Act was pushed by a Democratic president, Lyndon Johnson, it was approved in the Senate by a much higher percentage of Republicans than Democrats because of the staunch opposition of Democratic Senators from Southern States. In 2013, though, it was Republicans who successfully contested Section 4b of the Act before the Supreme Court and years later used the filibuster in the Senate to block the restoration of the full force of the Act (Tyranny of the Minotity). Related to the standing of voting rights in America is a recent article by Richard Hansen in the New York Times who points out that unlike other Western Democracies, the U.S. has no constitutional affirmation of the right to vote.
Although the occurrence of controversial elections is not a perfect measure of the quality of a democracy, their frequency, nonetheless, could indicate problems in the electoral process. My search in Wikipedia for contested and controversial elections showed that since 1990 more elections (at the federal and state level) have gone down as controversial in the U.S. than in Western Europe or Canada. In Europe as a whole, the overwhelming majority of controversial elections since 1990 have happened in the countries of the former Soviet Block which were new and inexperienced in the practice of democratic elections.
Controversial and contested elections bring in legal disputes and the court system. The lack of a standardize rule book for national elections in the U.S. and the mosaic of state rules inevitably create an over-reliance on the judicial system. We witnessed this in the 2020 presidential elections when dozens of state and federal courts had to pass judgment on the integrity of the voting process in various states. However, the relatively recent politicization of the appointment of judges can introduce partisan politics and interests in the adjudication of election-related cases. As we have seen in Hungary, Orban has managed to cling to power thanks to the control of the judicial system.
The essential features of a democracy are: the right of the majority of the people to govern; the protection of the civil liberties of all even against the wishes of the majority; and the smooth transition of power from election losers to election winners. Americans like to claim that ours is the oldest and grandest democracy of the modern world. While we are correct on the former, we need to be a lot more modest about the latter. Cumulatively, the structural flaws that thwart majority rule, the vote suppression tactics, and the violent resistance to prevent the transition of presidential power after the 2020 elections have taken their toll on the international standing of American democracy. In fact, the last ten years, the U.S. has lost ten points in the Democratic Index compiled by The Freedom House and ranks now below several Western European countries with 83 points (out of 100).
Given the obstacles in changing the rules any time soon, the survival and quality of the American democracy may come down to the integrity of the justice system and first and foremost to the loyalty of citizens to democratic principles. This loyalty is especially important for the men and women who seek our vote.
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