Who Needs to Win to Win?

In the immediate aftermath of last November’s election, the Republican Party, snapped suddenly out of the self-delusion of imminent victory promulgated by the Karl Roves and Dick Morrises of their party, came face-to-face with grim reality: Most of America hated them. And the Americans who didn’t hate them were dying off at a disconcerting pace. Something, nearly everybody both inside and outside the party agreed, would have to be done to rehabilitate the party brand. These were the choices: change, or continue to lose.

Since the New Year, though, a third possibility has emerged. What if Republicans don’t compromise with public opinion, but also don’t lose?

A glimpse of such a future came slowly into view in the weeks following the election, when Republican legislators in Virginia, Michigan, Wisconsin, Pennsylvania, and Ohio floated, with varying levels of commitment, a plan to rig the Electoral College. Each of those states voted for Obama, yet Republicans controlled each of their state governments. The plan would entail allocating the electoral vote in each state not in a lump sum to the candidate who gets more votes, but piecemeal, to the winner of each congressional district.

As it happens, Republicans in those states had already stacked the congressional districts in their party’s favor, so that roughly two thirds of the districts supported Mitt Romney in the last election even though all the states went for Obama. Allocating blue-state electors by congressional district would hand the GOP a massive advantage in the presidential election. Had those states allocated electors this way in 2012, Wisconsin, where Obama won by 7 percent, would have split its electoral votes 5-5. Michigan, which Obama carried with 54 percent of the vote, would have given Romney nine of its sixteen electoral votes. Romney would have needed only to flip his razor-thin loss in Florida to win the presidency despite losing the national vote by four percentage points.

“It’s something that a lot of states that have been consistently blue that are fully controlled red ought to be looking at,” asserted Reince Priebus, chairman of the Republican National Committee. Republican officials in the states conspicuously left the door open. Wisconsin governor Scott Walker has called it “an interesting idea” and “worth looking at.” Michigan governor Rick Snyder said, “It could be done in a thoughtful [way] over the next couple years, and people can have a thoughtful discussion.” Republicans in all these states, being blue states, left themselves room to retreat in the face of a backlash, as most of them did once national reporters grasped the implications of the proposal.

That a party would even contemplate such a blatant scheme to rig the rules so that it might win elections, when any remotely fair standard dictates it ought to lose, boggles the mind. But this plot did not come out of nowhere, and it is not merely an exercise in momentary partisan opportunism. It is the expression of a durable American political tradition of skepticism of democracy (or, to put it more charitably, skepticism of majoritarian democracy). And as the Republican Party comes to grips with an increasingly hostile public, this tradition is coming to the fore.

If you listen closely to the arguments by the Republican vote riggers, you can hear rationalizations, yes, but also a real idea: Rural Americans deserve disproportionate political representation. Charles W. Carrico, a small-town Republican state senator from Virginia who sponsored his state’s Electoral College–alteration bill, said, “People in my district—they feel discouraged by coming out because their votes don’t mean anything if they’re outvoted in metropolitan districts.” Jase Bolger, speaker of the state House of Representatives in Michigan, likewise fretted over the voting power of the urban hordes: “I hear that more and more from our citizens in various parts of the State of Michigan, that they don’t feel like their vote for president counts, because another area of the state may dominate that or could sway their vote.”

To believers in majoritarian democracy, this idea is silly. People in urban areas outvote people in small towns because there are more of them. If you have more voters, you’re supposed to win. It would be unfair if you didn’t.

Intuitive as it sounds, that definition of democracy has never completely prevailed in the United States. The Constitution itself was a compromise between advocates of majority rule and interests like slave-owners and small-state residents who demanded disproportionate representation. When we consider the dire position of the Republican Party—which, since November, has sunk even lower in opinion polls—we automatically equate political power with majority approval. The two things are not the same, and the discrepancy helps explain why the party, even in its reviled standing and without additional vote-rigging schemes, is in a better position than you might think.

The broadest available measure of public opinion are the votes of the nearly 130 million Americans who cast ballots last fall. That’s an electorate with a steadily growing share of minorities and a large cohort of young and generally liberal voters. One oddity of the current moment, though, is that even as Democrats steadily built a natural majority, the geographic scope of their appeal has sharply constricted. In his 1992 presidential campaign, Bill Clinton won 1,524 counties nationwide. Obama’s reelection managed to win just 690—fewer than even Jimmy Carter (900) and Michael Dukakis (819) managed in their landslide defeats. Democrats have won the loyalties of a larger share of the voters, but their voters occupy a progressively smaller share of the land. And in our political system, occupying land matters.

The Senate, with its one-state-one-vote system, gives individuals who reside in low-population states vastly more power than those in high-population states. (California has two senators representing its 38 million citizens, the same number Wyoming has representing its 576,000, which gives Wyoming voters 66 times more voting power per capita.) The chamber doesn’t attempt to represent America, exactly. It represents an approximation of America that is whiter and more rural than the real thing. This makes the Senate naturally more fertile territory for the Republicans, and while the Democrats have managed to hang on to majority control of the Senate since 2007, the way they have done so points to the forbidding odds they face. Republicans have thrown away easily winnable races in states like Delaware, Nevada, Indiana, and Missouri by nominating oddballs or cranks when perfectly loyal, more palatable Republicans were available. Democrats, meanwhile, have managed to hold seats in deep-red states only by carefully husbanding the political capital of their members. If liberals attempted to impose anything close to the sort of partisan discipline on their Senate candidates that tea-party activists deploy against Republicans, the GOP might have a filibuster-proof majority.

After defying the odds in an election cycle they were expected to lose, Senate Democrats face another uphill climb in next year’s races, defending seats in deep-red states like Arkansas, Louisiana, Alaska, South Dakota, and several others. Even if Democrats pull it off, their majority depends on their holding on to constituents who distrust their party. “To the extent that they break with the president,” a Democratic strategist said of the Senate candidates the party needs to hold the chamber, “it could be—I don’t want to say it is—a big advantage for them in deep-red states.” That is to say: The structure of the chamber is such that even a popular Democratic president cannot have a functional majority in the place. Republicans, on the other hand, could win back the Senate without venturing very far into blue territory—all they need to do is get their base to stop throwing virgins into live volcanoes.

The Senate was intended as a brake against majority rule. The House was supposed to be the vessel of populism. But the House also is affected by the lopsided distribution of Democrats across the country. There are roughly the same number of voters in each district—but the Democrats waste many more votes, because many of their voters are packed into urban districts with huge Democratic majorities. In the 2012 elections, the Republicans comfortably held the House even though Democratic House candidates collected more than a million more votes than Republican House candidates. And since Republicans control so many statehouses, they’ve been able to rig the districts to further solidify their advantage. Democrats have the voters, but Republicans have the geography.

In the face of the disproportionate power wielded in our system by white, rural, conservative voters, one might expect a strong wave of support for political reform to make the system better reflect the majority. Instead the prevailing currents have run in the opposite direction, with Republicans erecting new bulwarks to protect themselves from the threat of a hostile majority.

After Obama mobilized large numbers of young and nonwhite voters, Republicans across the country took steps to constrict the electorate. In what was for them a happy accident of timing, they gained power in the House during the 2010 midterm elections, just in time to oversee the redrawing of House districts that occurs every decade following the Census. They were able to circumscribe districts such that they locked in their gains in several states, which means that even Democratic-­leaning ones like Pennsylvania and Michigan sent staunchly Republican delegations to the House this year (13-5 and 9-5, respectively).

In fact, if the 2012 elections proved anything, even beyond the increasing Democratic tilt of the electorate, it was that Republicans have a mortal lock on the House. Surely losing the House would not be impossible. But the current standard of behavior—holding the economy hostage, screaming at the president during an address to Congress, voting for the Paul Ryan budget—did not come close to doing the trick last fall, and it’s hard to imagine what would. (Passing a mandatory-child-labor law? Voting to replace Martin Luther King Jr. Day with Bull Connor Day?)

The Obama era has also seen Republicans in nearly every state they have controlled impose burdensome identification requirements to vote, bureaucratic obstacles to the registration of new voters, and rolled-back early balloting. (Some of those crackdowns withstood legal challenge; others did not.) The campaign to rig the Electoral College can be seen as a piece of the same broad effort—leveraging Republican control of state governments in order to stop the Obama coalition from exerting its numeric power. The Electoral College itself already compromises the democratic principle (it allows the winner of the popular vote to lose the presidency). But the Republican plan would give its candidates all the electoral votes from states they carry, plus some electoral votes from states they lose. Even worse, thanks to gerrymandered redrawing of congressional districts, some states in which Republicans lose the popular vote (as Romney did in Michigan, say) would split their electoral votes in the Republican candidate’s favor.

In Washington, too, the Republican minority has flexed its muscles by creating new powers for itself that previous minorities never imagined. The Senate filibuster has evolved over the past three decades from a rare tool of unusually strong dissent into a routine tactic requiring a supermajority to foil. Under Obama, Senate Republicans have adopted the extraordinary new stratagem of using their blocking power to prevent the execution of duly passed laws and to stop presidential nominees not out of any particular objection to the candidates, but out of opposition to the laws those bureaus carry out. The congressional scholars Norman Ornstein and Thomas Mann have labeled this technique “the new nullification”—a minority invalidating laws it lacks the votes to overturn. A handful of reform-minded Democrats have sought to rein in minority obstruction, but their efforts petered out.

Of all these efforts, the most potent may ultimately be the concerted operation by legal conservatives to turn the courts into a machine for judicial activism. Since 1937, courts have left economic policy to legislatures and handed down activist rulings to expand social rights for minorities. Some conservatives strove to use the courts to create rights for economic minorities—that is, wealthy people—by reading the Constitution, as the tea party does, not merely as a blueprint for political organization and civil rights but as mandating laissez-faire economic policy. As recently as 2005, this was a fringe movement, known as the “Constitution in Exile” and denounced by mainstream conservatives schooled in the generational Republican distrust of activist judges. (Antonin Scalia called it a “threat to constitutional democracy.”) But the legal case against Obamacare crystallized a shocking change. As the case wound its way through the courts, the entire conservative legal apparatus, including Scalia, endorsed the reasoning and methods of the Constitution in Exile movement. The Supreme Court barely upheld Obamacare while opening the door to strike down sundry taxes, spending, and regulations that conservatives can’t stop in Congress.

The constitution in Exile movement has an explicit historic parallel in mind: The “Lochner era,” a period from the end of the nineteenth century through 1937, when archconservatives ruled the Supreme Court and used it to strike down the income tax, labor laws, and other populist measures. Conservatives cite, and hope to revive, the legal doctrines from this period, along with the Court’s role as a legislative backstop for laissez-faire economics.

The Lochner era also happened to coincide with an era in which, like today, conservatives were stalked by a panic that they were losing the country. The cities were swelling with foreigners pressing for economic and social change. The simple virtues of majority rule suddenly grew far murkier to many Americans. Francis Parkman, a prominent historian, wrote an essay in 1878 titled “The Failure of Universal Suffrage.” In it, Parkman lamented that open democracy worked well in the old small towns, but had grown perverted with the influx of “thousands and ten thousands of restless workmen, foreigners for the most part, to whom liberty means license and politics means plunder.”

A similar dread courses through the right today. It can be heard in the dismayed comments of Mitt Romney, who told donors both before and after the election that Obama’s appeal boiled down to letting his supporters loot the public fisc. Parkman’s fear—“politics means plunder”—had become, 134 years later, Romney’s displeasure at Democrats’ “giving a lot of stuff to groups that they hoped they could get to vote for them and be motivated to go out to the polls.” The Gilded Age newspaper that argued that the right to vote should belong to those “competent to know what are the rights of his fellow-citizens” has an echo in respectable contemporary figures like George Will, who recently praised filtering “potential voters with the weakest motivations” or else “the caliber of the electorate must decline.”

The tradition of expanding the scope of American democracy commands all the retrospective historical glory. But the counter-democratic tradition—a concerted advocacy not of dictatorship but of restraints to prevent the majority of citizens from exercising political power—runs just as long and deep. It runs through John C. Calhoun, the titanic nineteenth-­century theorist who defended the rights of the white South against the growing majority in the North. (“The first and leading error … is to confound the numerical majority with the people, and this so completely as to regard them as identical.”) Our history books record the arguments of the crusaders for voting rights for women and blacks and overlook that they were, necessarily, arguing against something. Women’s suffrage, warned former president Grover Cleveland in 1905, would “give to the wives and daughters of the poor a new opportunity to gratify their envy and mistrust of the rich.” In 1908, New York City tried to suppress voting by Jews (who held notoriously left-wing views) by limiting voter registration to Saturdays and Yom Kippur. It took a hotly contested constitutional amendment in 1913 to allow people nationwide to vote for their senators, who previously were appointed by state legislatures.

American history has always tugged back and forth between a more pure democracy and some constricted facsimile thereof. “In the very long run, to be sure, we have become more democratic,” Harvard historian Alexander Keyssar has written, “but there have been numerous moments in our past when the pendulum swung in the opposite direction.” It seems peculiar, though perhaps not bewildering, that the pendulum should swing back, not forward, during—of all times!—the presidency of Barack Hussein Obama.

Who Needs to Win to Win?