The death of democracy is in our demographics, and our antiquated Constitution

Ezra Klein at Vox.com made several important observations about our democracy in a recent post about President Trump’s nomination of an associate justice to the Supreme Court. The Supreme Court vs. democracy:

Such appointments are becoming the norm. With Justice Kennedy’s replacement, four out of the Supreme Court’s nine justices — all of whom have lifetime tenure — will have been nominated by presidents who won the White House, at least initially, despite losing the popular vote.

There’s nothing necessarily wrong with that. America, for all its proud democratic rhetoric, is not actually a democracy. Until and unless the country chooses to abolish the Electoral College, it will remain not-quite-a-democracy, with all the strange outcomes that entails. Liberals may complain, but the rules are the rules, and both sides know what they are.

But the Supreme Court’s conservative bloc doesn’t just reflect the outcomes of America’s undemocratic electoral rules; it is writing and, in some cases, rewriting them, to favor the Republican Party — making it easier to suppress votes, simpler for corporations and billionaires to buy elections, and legal for incumbents to gerrymander districts to protect and enhance their majorities.

The Supreme Court has always been undemocratic. What it’s becoming is something more dangerous: anti-democratic.

What we’re seeing here is an alliance, not a coincidence. Republicans won the White House and the Senate, used that power to appoint judges to the Supreme Court, and the judges they vetted and elevated are making it easier for their patrons to retain power in the future.

Yes, that’s a grim, cynical analysis. But is it wrong? Consider some of the decisions the Court made just this term[.]

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All this is coming in the context of a political system that is becoming less and less representative of public opinion. Since 2000, 40 percent of presidential elections have been won by the loser of the popular vote; the Senate, due to its small-state bias, has a Republican majority despite the fact that more Americans voted for Senate Democrats in 2016 than Senate Republicans; and in the House, due to both gerrymandering and geography, Democrats are projected to need to win the popular vote by around 7 points (or as much as 11 points) to take back control of the chamber.

Demographers project American politics will become even less democratic in the coming years. By 2040, 70 percent of Americans are expected to be represented by a mere 30 senators, which means 30 percent of the population will control a 70-vote supermajority in the Senate.

The Supreme Court is meant to be insulated from democracy. It’s not meant to be a partisan tool for undermining democracy. What’s emerging now is a dangerous loop, in which Republicans barely holding onto power manage to keep control of the Supreme Court by any means necessary, and in return, the Supreme Court’s Republican appointees issue rulings to help their party cling to political power.

In the long-term, that’s bad for the country’s unity and the Court’s legitimacy … [A]fter McConnell’s refusal to give Garland a hearing, it’s hard to argue that there are any norms or limits left on the war for judicial power. And even those most invested in the Court’s grandeur are finding it hard to defend its reality.

Paul Waldman of the Washington Post similarly noted We’re living in an age of minority rule:

[The Senate] vote will be a vivid reminder that we are living in an age of minority rule. In fact, that is one of the central features of this political era. The Republican Party represents a minority of the American electorate, yet it controls not only all three branches of the federal government but also most state governments, as well.

Why do I say that a vote in Kavanaugh’s favor is an example of minority rule? Because the body that will confirm him is built in its current formation to almost guarantee Republican control, despite the fact that most American voters selected Democrats to represent them there.

Using Dave Leip’s invaluable election atlas, I added up all the votes cast for Democrats and Republicans in the 2012, 2014 and 2016 Senate elections, which put the current Senate in place.

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In the elections that determined the current Senate, there were 15 million more votes cast for Democrats than for Republicans. Yet Republicans maintain control and therefore get to confirm President Trump’s Supreme Court nominee.

Well, that’s just how it is, you might say. Blame the framers. And that’s true: They set up a system in which Wyoming’s 580,000 residents get two senators and California’s 40 million residents also get two senators.

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So we will now have an intensely conservative Supreme Court in which five of the nine justices were appointed by Republican presidents, despite the fact that in six of the past seven presidential elections, the Democratic candidate won the most votes. That’s because of the electoral college, another feature of our system with a built-in Republican advantage.

Were it not for the skew of the Senate, Mitch McConnell would not have had the ability to refuse to hear the nomination of Merrick Garland, in which case the margin would have been 5-4 in favor of Democrats. Were the presidency determined by which candidate got the most votes — as it is in every other democracy on earth — Hillary Clinton would be president right now, and the margin would be 6-3 in favor of liberals.

There’s a related situation in the House, where most analysts believe that in order to take control Democrats will have to not just win the popular vote, but win it by a huge margin of 6 or 7 points.

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And one of the things you can absolutely count on from the newly (even more) conservative Supreme Court is that they will approve every step Republicans take to suppress the votes of those inclined to oppose them, making their continued hold on power all the more likely.

In other words, our entire political system is built to give the Republican Party a series of advantages, even when they represent a minority of the public, as they now do. In some cases that’s by their design, and in some cases it’s a happy accident, but it all points in the same direction. And when Republicans have power, they work ceaselessly to make the system even less democratic and more rigged in their favor.

Waldman’s associate at the Post, Philip Bump, follows up with In about 20 years, half the population will live in eight states:

In response to Post opinion writer Paul Waldman’s essay about the current power of the minority in American politics, the American Enterprise Institute’s Norman Ornstein offered a stunning bit of data on Twitter.

Screen Shot 2018-07-15 at 12.20.22 PM

In broad strokes, Ornstein is correct.

The Weldon Cooper Center for Public Service of the University of Virginia analyzed Census Bureau population projections to estimate each state’s likely population in 2040, including the expected breakdown of the population by age and gender. Although that data was released in 2016, before the bureau revised its estimates for the coming decades, we see that, in fact, the population will be heavily centered in a few states.

Eight states will have just under half of the total population of the country, 49.5 percent, according to the Weldon Cooper Center’s estimate. The next eight most populous states will account for an additional fifth of the population, up to 69.2 percent — meaning that the 16 most populous states will be home to about 70 percent of Americans.

Geographically, most of those 16 states will be on or near the East Coast. Only three — Arizona, Texas and Colorado — will be west of the Mississippi and not on the West Coast.

PopulationByState2040

Ornstein’s (and Waldman’s) point is clear: 30 percent of the population of the country will control 68 percent of the seats in the U.S. Senate. Or, more starkly, half the population of the country will control 84 percent of those seats.

His tweet goes further, suggesting that the demographics of those states will differ from the larger states, as well, and, therefore, so will their politics.

It’s self-evident that the 34 smaller states will be more rural than the 16 largest; a key part of the reason those states will be so much more populous is the centralization of Americans in cities. It’s true, too, that this movement to cities has reinforced partisan divisions in a process called the Big Sort.

The Weldon Cooper data, though, is less stark on the age differential. Eleven of the 16 most-populous states will have over-65 populations that are below the median density nationally. Twenty-two of the 34 less-populous states will have over-65 populations that are over the median density.

In the current political context, older voters means more Republican voters. By 2040, though, those 65-year-olds will be Generation X, a generation that currently skews more Democratic than the two generations that preceded it, according to a March study from the Pew Research Center. By 2046, even some millennials — a group that is much more Democratic-leaning — will be at retirement age (!!!).

With an important exception, to Ornstein’s point: White male millennials are the only demographic group within that generational bracket to lean more heavily to the Republicans.

So the partisan ramifications of the uneven distribution of the country’s population aren’t clear. But the possible anti-democratic effects of the lopsided Senate are. The gray states on the map below — states that make up more than two-thirds of the land area of the United States — will similarly control enough of the Senate to overcome any filibuster.

PopulationDistribution

Ian Milhiser at Think Progress is even more emphatic. The U.S. Senate is facing a legitimacy crisis:

The United States Senate is an immoral, anti-democratic institution where a person from Wyoming counts as over 68 Californians. It is also a demographic time bomb that is likely to plunge the United States into a legitimacy crisis.

According to Baruch College’s David Birdsell, by 2040 “about 70% of Americans are expected to live in the 15 largest states.” That means that 30 percent of the population will elect 70 percent of the senators. It also means that, if small states continue to trend towards Republicans, the GOP may soon have a permanent Senate majority that is large enough to remove the President of the United States from office at will.

More than two decades before this time bomb detonates, the Senate is one of the most anti-democratic bodies in any modern democracy. As a new essay by the University of New Hampshire’s Michael Ettlinger lays out, the Senate effectively gives extra voting power to white people, gun owners, and rural voters, while treating people of color as only slightly more than 3/4s of a person.

Thanks to Senate malapportionment, in other words, the average white voter counts as nearly 1.7 Latinos. This underrepresentation occurs because almost 2/3s of Latinos live in the five largest states.

Ettlinger’s essay is chock full of data on just how much the Senate skews representation — under the Constitution, each state gets exactly two senators, regardless of whether the state has 100 people or 100 million people. “The average state has a population of 6.5 million,” Ettlinger explains, “making the average American one of 6.5 million constituents for each of their two senators.” Meanwhile, California has nearly 40 million residents and Wyoming has less than 580,000 people.

Or, to put it another way, a Californian counts as less than 1/5 of the average American. While a person from Wyoming counts as more than 10 people.

Over:UnderRepresentation

This sham democracy has profound implications for the upcoming battle over Supreme Court nominee Brett Kavanaugh. Currently, Republicans hold 51 votes in the Senate, while the Democratic caucus is only 49 senators. Yet the Democratic “minority” represents nearly 40 million more people than the Republican “majority.”

Indeed, this Republican advantage may already be a permanent feature of the Senate. In 2016, when Senate Republicans blocked Chief Judge Merrick Garland’s nomination to the Supreme Court, the 46 Senate Democrats represented 20 million more people than the 54 Republicans. In 2017, when Neil Gorsuch was confirmed to occupy the same Supreme Court seat, the 45 senators who opposed Gorsuch represented more than 25 million more people than the senators who supported him.

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And all of this is possible because of a system that gives white people more representation than people of color.

The Great Compromise or “Connecticut Compromise” (1787) that led to each state having an equal vote in the Senate in all matters and enabled passage of the U.S. Constitution, some 230 years later, due to urbanization never imagined by the Founding Fathers who lived in an agrarian society, now empowers a tyranny of the minority. The Constitution needs to be amended to provide for some degree of apportionment in the Senate by population (and expanding the number of senators).

The Constitution also needs to be amended to repeal the electoral college, the last remaining vestige of the slavery provisions in the Constitution, The Troubling Reason the Electoral College Exists, to provide for the popular vote election of the chief executive – as it is in every other democracy on earth.

These two constitutional changes, along with some reasonable standard to address gerrymandering in apportionment and redistricting of House and now Senate seats as well, would go a long way towards reviving our democracy and allowing it to function normally again.

Now is the time to have this debate well in advance of the demographics time bomb in 2040.

3 responses to “The death of democracy is in our demographics, and our antiquated Constitution

  1. The situation described above is a problem only because the federal government has, since the the 1860s, been continually undermining state sovereignty. Two senators per state is a policy that was meant to level the playing field between high-population states, and low-population states. But in the current legal climate, individual states have almost no autonomy, and the federal government meddles in virtually every topic imaginable. Unfortunately we’re currently using a system designed to give states autonomy, but in a political landscape in which we don’t allow them to practice autonomy. The idea that federal representation should be based on population alone would be correct if the States were merely 50 “voting regions”. So the political crisis is not about representation, but about State’s rights. If we still believe that States should have autonomy we will have the benefit of trying 50 types of law for every social problem – a huge advantage over the current Federal approach which is to use massive, ill-founded, omnibus compromises to address social problems.

    • I think it’s true that states have less autonomy now than they did in 1860 (By the way Arizona was not a state in 1860.). It’s also true that transportation and communication advancements have changed the scene dramatically. Problems that might have been localized to one state are now quickly spread to other states. Questions of public health and environmental quality also quickly cross state lines. People cross state lines with ease and take many problems with them.
      Maybe it’s time to consider a total reorganization. Do we really need municipalities, counties, and states let alone a myriad of special districts?

  2. The case for change is clear but in these papers I don’t see any suggested alternatives. I’m getting pretty tired of the “We need a debate” line without something to debate.