MINORITY RULE: WHY THE BUSINESS OF CITIZENSHIP DOESN'T END WITH VOTING
The Bush win in 2000 and Trump’s win 16 years later are the most obvious examples of how votes are unfairly weighted in national elections.
Trump won the presidency in 2016 by sweeping the electoral college despite a huge deficit in the popular vote — almost three million ballots or more than two percentage points. More Americans voted for Hillary Clinton than for any other losing presidential candidate in history, and despite Trump’s flailings, there has never been any evidence uncovered to indicate that any significant number of votes were cast illegally for Clinton, let alone enough to have swung the popular vote in her favor.
We know that this isn’t the first time this anomaly has occurred — most of us remember the events of the 2000 election if not the details, in which the electoral math came down to which way Florida went with its 25 electoral votes and winner-take-all policy, shared by all but two states. In that election, although Gore was ahead in the popular election by almost half a million votes before Florida was even considered, the popular count in Florida was so close as to trigger an automatic recount, and then a hand recount in four highly-contested counties where problems with voting had been reported to be most dire. Confusion reigned and frustration over unclear and sometimes defective physical-punch ballots boiled over, and partisan arguments over whether votes should be recounted and where led to the determination by Florida’s secretary of state, charged with overseeing and certifying elections and their results, to halt the recount (you may find it worthwhile to know that Secretary of State Katherine Harris was closely aligned with both the Republican party and the Bush family, and had served as co-chair of Bush’s Florida campaign).
The Florida Supreme Court ruled to continue the hand recount and gave a five-day deadline for completion, which was contested by the Bush campaign and protested by his supporters. Republican political operatives organized “the Brooks Brothers Riot,” in which a cadre of “50-year-old white lawyers with cell phones and Hermès ties,” (according to the Washington Post) descended on the Miami-Dade elections office to protest counting of the votes, lobbying to call the election there and then and ignore the contested ballots. The chair of the Miami-Dade Democratic Party, there to test the punch mechanism on the county’s voting machines, was accused of stealing ballots. Republican adviser Mac Stipanovich is quoted in The Atlantic as saying, “Somebody said at the time — this is probably unfair — that while the Democrats were bent over their calculators, we were breaking bar stools over their heads.”
Eventually, in a 5–4 decision, the Supreme Court overruled the state supreme court and stayed the recount, without having been briefed by campaign or party attorneys and without having heard arguments. The Supreme Court had never before intervened in a presidential election to affect counting of votes in a state. The Republican Party and the Bush campaign had succeeded in their PR efforts to convince the country, and apparently the Court as well, that the Florida recount was “an exercise in chaos rather than in democracy” (per lawyer Laurence Tribe in The Atlantic). The Gore campaign argued that many ballots had been left uncounted or unverified, but the Court decided in favor of the Bush campaign’s argument that time had run out to count the ballots, and since Bush was ahead by 537 votes at the time of their decision, Florida’s 25 electoral votes went to him. Gore had pulled almost 500,000 more votes across the country than Bush had, and had been at 266 electoral votes, only needing four more for the win. Florida’s 25 electoral votes put Bush just barely over the top at 271.
The ballots that the Republicans had wanted counted were contested mail-in ballots from Martin County which had been sent in after faulty ballot request forms had been distributed by both parties. The forms had been printed without crucial voter registration numbers, and GOP operatives had been allowed to remove their returned forms from the elections office overnight and write in the missing voter registration numbers so that ballots could be mailed out; Democratic operatives had been given no such opportunity, thus disenfranchising many of Martin County’s Democrats. Many of the mail-in ballots had been returned without postmarks or having postmarks after Election Day, missing witness signatures and even some from voters who had already voted. Attorneys for the Republicans argued that those mail-in ballots should be counted despite the fact that their flaws made them invalid under Florida election law and that their Democratic counterparts had had no opportunity to cast their votes. At the time, our newly-minted Supreme Court Justice Amy Coney Barrett was a young associate at a D.C. law firm, only three years out of law school, who assisted in this argument (interestingly a starkly different argument regarding mail-in ballots than the GOP is making ahead of the 2020 election). Chief Justice John Roberts was also not on the Court at that time, and advised Governor Jeb Bush during the recount firestorm, and highly controversial Justice Brett Kavanaugh, appointed by Trump in 2018, was also a member of the Bush/GOP legal team arguing in favor of the including the contested mail-in ballots but against continuing the recount beyond them. This means that should the 2020 election become contested — and since President Trump has been crowing about a rigged election practically since he was inaugurated while simultaneously making attempts to rig it, that seems a likely outcome — three of the Court’s nine justices will have been involved in the only other contested presidential election in living memory, and all from the legal team of the same candidate and party. GOP talking heads have been making much noise during the Coney Barrett confirmations about how Democrats seek to “pack the court” if elected, but if there were ever a packed court, this is it. And for the icing on the cake, President Trump has outright stated that he wanted another conservative justice on the Court to decide with him should the results of next month’s election be contested, which he believes they will be. “I think this will end up in the Supreme Court,” Trump said of the election after he nominated Coney Barrett in September, “and I think it’s very important that we have nine justices.”
The Bush win in 2000 and Trump’s win 16 years later are the most obvious examples of how votes are unfairly weighted in national elections. Because each state receives equal representation in the Senate, regardless of how many people live in that state, each senator represents a disproportionate number of Americans. That means that people who live in rural, sparsely-populated areas like Wyoming are more represented than people who live in densely-packed urban climes like San Francisco. Two senators represent the approximately 579,000 people living in Wyoming, and two senators represent the approximately 40 million people living in California. But those senators receive equal votes in chambers, despite the fact that the Californian senators are voting on behalf of almost 70 times more people; a specifically undemocratic way of governing, set up by the Seventeenth Amendment. Equal representation for the states in the Senate was called the Connecticut Compromise or the Great Compromise when it was established, but what the framers did not foresee was the division of Americans into parties, with the more diverse and progressive voters concentrating in cities while conservative voters remained in rural areas. This means that a procedure intended to keep smaller states with smaller populations from fading to the background of decision-making has instituted minority rule, where the smaller group gains and retains power over the whole. The electorate has proportional representation in the House of Representatives, but in the Senate and therefore in the Electoral College, where a state’s electoral vote count is determined by its total representation in Congress, the interests of rural, largely white, largely conservative and largely uneducated voters are over-represented, leaving the interests of urban, diverse and largely progressive voters with fewer representatives and a smaller share in determining its own destiny despite the fact that these voters outnumber their rural counterparts. Right now this disproportionate representation favors Republicans, but it hasn’t always been that way, and it won’t be that way in perpetuity.
Before Bush’s 2000 win, the last president to win the electoral college without winning the popular vote had been Benjamin Harrison in 1888. In that election, as in the 2016 election wherein Donald Trump won the presidency despite having three million fewer people vote for him than his opponent, the winner didn’t claim the most states in the electoral college, but simply won the right ones. The Democratic candidate has now won six of the past seven popular elections, but in two of those elections — 28.6 percent — the candidate preferred by the majority of Americans has not been the one to move into the White House. And both times that the candidate who was not chosen by the voters was handed the presidency anyway, he was a Republican. This is because a vote by a Wisconsinite counts more than a vote by a New Yorker.
Republicans have been calling themselves “the silent majority” for years, but that’s just propaganda meant to fluff their base and encourage them to vote. The truth is that they have engineered a representational bias at all levels of government by the process known as “gerrymandering” (Democrats are guilty of gerrymandering too, to be fair, but the GOP has elevated the practice into an art form and used it to entrench themselves in the seats of power at all levels of government). The way this works is by drawing arbitrary Congressional districts grouping voters together in such a way that the party who drew the district will always win. Districts are drawn to capture a majority of Republicans and a minority of Democrats, so the Democrats will always be outvoted and will never be able to elect a Congressman who represents their interests. The “packing” of districts concentrates the votes for Democrats in one place which means the power of their votes in all the other districts is so diluted as to be meaningless. If 40 percent of voters in a Georgia county are registered Democrats and 60 percent are Republicans, Republicans in control of the General Assembly can cut the county up in such a way that none of districts have enough Democrats to get their candidate elected. Even though the population demographics show 60 percent Republicans and 40 percent Democrats, Democrats receive 0 percent of the representation in Congress. This is a form of intentional voter suppression, one of many in the GOP’s tried and true arsenal. The situation is particularly dire now, as we wrap the 2020 election, because of how well Republicans did in the 2010 election, which gained them control over state legislatures ahead of 2010’s post-Census redistricting efforts, a major goal of the GOP and one in which they had invested huge amounts of money and effort.
In North Carolina in 2018, votes for representation in the House of Representatives landed about 50 percent with Republicans, 48 percent with Democrats and the remaining two percent with other parties or independents. If all votes were weighted equally, Republicans would have received seven of the state’s 13 seats, and Democrats would have gotten the remaining six; but Democrats ended up with only three seats in North Carolina’s delegation, and Republicans walked away with the remaining ten, 77 percent of the seats, having only garnered 50 percent of the vote, because of the way voters had been organized into districts: Democratic voters had been so diluted among gerrymandered districts that although almost half the votes cast had been for Democratic candidates, less than a quarter of the representation reflected those voters. In most states, state legislatures are responsible for doing the post-census redistricting, which means people in power are responsible for drawing districts that can either keep themselves and their party members in power or hand it to the opposition party, and we as voters have to trust them to do the right thing, just as Floridians had to do when they were counting on Secretary of State Katherine Harris to fairly certify the results of the 2000 contested election despite the fact that she was also co-chair of the Bush campaign in Florida (then-governor of Florida Jeb Bush, as brother of one of the candidates in the contested election, recused himself from making any determinations in the case; Harris did not). Georgians had to do the same in the 2018 gubernatorial election between Stacey Abrams and Brian Kemp, in which Brian Kemp was Georgia’s secretary of state, charged with overseeing and certifying an election in which he was a candidate (although encouraged to recuse himself and delegate the management of the election to someone else, Kemp, like Harris, also chose not to do so). Unsurprisingly, Kemp won. Whether that fact is because of or in defiance of his obvious conflict of interest is a matter for debate. But allowing these conflicts to exist and just crossing our fingers that elected officials will ignore their biases is clearly not a reasonable, sustainable, or democratic solution.
Which brings us to the 2020 Census. Communities of color are considered difficult to count in any census and have historically been under-represented. Particularly in times like the present, when racial discord seems to be at its highest in recent memory and Latinx populations have felt so demonized and “othered,” they may be unwilling to pop their heads up and answer questions from a government agent, even if they aren’t or don’t know anyone who is undocumented. Children under the age of five are also historically underrepresented in the census, and when the purpose of the count is to determine where public funding should be allocated for education and other purposes, the under-counting of children of color is a serious problem. The citizenship question even appears intended to scare certain groups away from responding to the survey, as since its inception, the census has always taken a count of all residents of a community, whether they are citizens or not (permanent residents and holders of student or work visas, for example, are tax-payers despite not being citizens, are need to be included in community counts).
Additionally, the Trump administration has gone to all ends to ensure that the 2020 Census ends weeks earlier than other modern census-taking, which will inevitably leave huge numbers uncounted and unrepresented when redistricting and allocation decisions are being made. According to projections by the Urban Institute, these intentional shortcuts are likely to result in more than four million people going uncounted, and those numbers will be locked in for the next decade. Those four million people will not be included in determinations made for $1.5 trillion per year in federal funding for education and infrastructure, or in selecting their representatives to Congress. Nationally, Black residents could go undercounted by as much as 3.68 percent. That’s 1.7 million Black community members who will not be considered in the making of major decisions, like where district lines will be drawn in determining congressional districts. And that enables the people who are accounted for to continue making the bulk of the decisions on behalf of everyone.
Unfair undercounts affecting the drawing of districts exacerbates the problem of over-representation of the majority party in Congress. We know that Republicans are over-represented in the Senate because the Senate was intended to to over-represent states with small or rural populations, which today lean conservative. And Republicans are also over-represented in the House of Representatives because they have been allowed to draw their own districts for more than a decade in order to maintain a stranglehold on power and stay in control of the legislature and the electoral college, even though there are fewer voters casting votes for them than there are casting votes for Democrats. In a government which is supposed to be “of the people, by the people, and for the people,” a system where a party that maintains power by counting some people’s votes more than others’ sounds particularly unlike the representative democracy the framers intended. We’ve never been a perfect society: the hypocrisy of espousing the concept of “all men are created equal” while simultaneously owning human beings and setting up a Senate and Electoral College where men are intentionally unequal is stark and bracing. But the fact that we have never been perfect doesn’t give us license to continue operating our imperfect institutions.
The business of citizenship doesn’t end with voting. If you vote, thank you very much, we appreciate it. But it’s not the responsibility of our lawmakers to independently correct our institutions’ flaws. That’s our job. They are, at least in theory, elected to represent our interests, but we are also tasked with representing our own interests, and keeping an eye on how well our government is functioning. The actual governing, the discussion and passage of laws that affect our everyday lives, happens in between elections, and that’s why we need an engaged citizenry. That’s how we got to this place where we are, living under minority rule: by not paying enough attention.
Most people find it relatively easy to stay engaged enough to pick a presidential candidate, but a much smaller group of voters follow state and local elections with the same veracity, and these could not be more crucial, as evidenced by the gerrymandering situation we’re in now. Allowing Republicans to control state legislatures and thus the redistricting process has caused massive overrepresentation of their party in Congress, and was responsible for the many roadblocks President Obama faced when trying to move legislation through the Senate after his first two years in office, when Republicans regained control of that chamber. Through the Trump presidency it’s been much of the same: legislation has been moving steadily through the Democrat-controlled House of Representatives, while the Senate refuses to legislate (there are more than 400 House-passed bills sitting on Senate Majority Leader Mitch McConnell’s desk, including the HEROES Act — the second round of COVID-19 relief funding — which was passed by the House in May and has been waiting on the Senate to take it up since). As long as Republicans in Congress refuse to work with their Democratic counterparts, we will continue to have deadlock in Washington. And as long as Republicans keep control over state governments, Republicans will continue to be over-represented in both state and national politics, governing without a mandate. They know they aren’t representative of the voters, and that’s why they continue to dilute the opposition vote and attempt to make it difficult for anyone to vote at all, even their own bloc. The more roadblocks they put up, the easier it is for them to stay where they have settled themselves, in the seat of power. Real power, entrenched at every level of local, state and national government.
Today is Election Day 2020. If you haven’t already voted, you must. But after you cast your ballot, please remember that once old representatives move out and new ones unpack their banker’s boxes in their new office space, they’re going to begin the business of making decisions on your behalf. Election Day is only day one. Your friends and neighbors need you to stay engaged and keep an eye on your elected officials, make your thoughts known to them. Tell them what matters to you. So many people feel like their lives are divorced from the big issues that are frequently discussed and batted around in the news, like abortion rights or healthcare reform, but there is so much more happening and being discussed and decided upon every day affecting all the things we do. How much of our paychecks we see, whether the potholes in our neighborhood get fixed, how much money goes to our children’s schools, guidelines for opening a business. Court reform, campaign finance reform, environmental reform…none of these things will happen if we don’t push for them, even when we elect “the good ones” to office. And we can see that fighting our way out from under minority rule is going to take much more than simply electing Democrats; even the moderate wing of the Democratic Party is now advocating for the dissolution of the electoral college, and that’s one step toward a society where everyone’s vote counts the same, but that only affects the election of the executive and doesn’t solve the problem we have with the census, districting and minority rule in the Senate. And all of these changes are going to require huge amounts of work, massive amounts of advocacy and reforms. Our representatives won’t truly represent us until we accomplish meaningful campaign finance reform. And if your candidate doesn’t get elected, it isn’t time to pack it up and go home, the work isn’t done yet. Candidates come and go. Getting the right people into office is only the first step: advocating for issues is the part that carries on. It can’t be about a particular candidate, it has to be about a movement. That’s where you come in. You’re an integral part of the movement. Advocate for your candidate, but whether they win or lose, you must advocate for your issues, or they won’t be heard, they won’t be debated, and someone else’s will. So get that bullhorn ready, find out where you can call and email to make sure they know what matters to you, and that you won’t be redistricted into obscurity, you won’t be suppressed without a fight. Let them know that you know what they did in 2000 and 2010 and 2016 and 2018 and you’re not going to continue to stand for it. Make them afraid to try and silence you.
I’ll see you at the polls.
If there’s one thing everyone in America knows about elections, it’s that Donald