By now it should be obvious that President Trump and the Republican Party have exploited with authoritarian viciousness a system that depends on good faith and restraint. They laugh at the suckers who believed them in 2016 when they said a Supreme Court pick had to wait for a new president. Senate Majority Leader Mitch McConnell (R-Ky.) chortles about the legislative graveyard that stymies hugely popular legislation. They can do these things because a government designed to prevent the tyranny of the majority has become vulnerable to the tyranny of the minority.
Two Republican presidents in the past quarter century entered the White House with a minority of the popular vote. Together, those presidents appointed four of the justices on the Supreme Court. The Senate bias in favor of small states with small populations has been exaggerated as the bigger states get even bigger and more diverse. Despite the growth in nonwhite voters in larger metropolitan areas in blue states, the influence of White voters grows even more pronounced. CNN’s Ron Brownstein explains, “Today the 47 Democratic senators represent almost 169 million people, while the 53 Republican senators represent about 158 million. ... The senators in the current Democratic minority won 14 million more votes than those in the Republican majority.”
At some point, our system (if it does not already) will lack democratic legitimacy. Consider the very real possibility of yet another election that skirts the popular vote, decided by a Supreme Court dominated by justices who themselves were nominated by men who became president without a majority vote and confirmed by a Senate majority that has drifted further from a representative cross-section of voters. As Brownstein notes, Trump and the Republican Senate majority were put in place by “states with few immigrants, more White Christians and relatively fewer college graduates. Fully 26 of the 30 states Trump won rank among the 30 states with the smallest share of immigrants, according to census data; those same states elected 45 of the 53 Republican senators." That does not sound like “democracy” to many Americans; it surely does not sound like multiracial democracy.
The question is not whether the system is designed that way; it is whether it is tenable in the 21st century to have a Senate dominated by overwhelmingly small White states, a Supreme Court that is entirely untethered to popular will and a president without a popular majority. Likewise, our voting system is far from the envy of the world. It is a system in which voters face barrier after barrier, in which voter suppression techniques have been legitimized by the undemocratic Supreme Court and in which one party can intentionally sabotage the credibility of an election.
The good news is that if you think the system has strayed too far in the direction of minority rights, changing it might be easier than you think. We do not have to live with the system as is. The system has changed before, as it did when the 17th Amendment allowed for direct election of U.S. senators and when the franchise was expanded by the 15th, 19th and 26th Amendments. We have divided states (as when West Virginia severed from Virginia) and added others.
Plainly, only one party has an interest in making the system more democratic. A Democratic president and a Democratic-led Congress could revive the preclearance procedures of the Voting Rights Act and move under the 14th Amendment to ban discriminatory practices such as voter-ID requirements, gerrymandering and voting-roll purges. Making Election Day a holiday, instituting automatic voter registration and ensuring voting-by-mail is accessible and secure in every state can expand the franchise, a critical component of any democracy.
The Senate can alter or abolish the filibuster to prevent obstruction from a minority. Congress can alter the size of the Supreme Court and the lifetime tenure of justices. It can admit D.C. and Puerto Rico as states, another step toward democratization. It can expand the House of Representatives (something that has not happen since 1911).
State legislatures and governors can mute the electoral college. States can require that their electoral votes be awarded to the national popular-vote winner. Under such rules, presidents would no longer campaign in just a few battleground states (and perhaps Trump would pay more attention to natural disasters in Western states that he has already written off). Winning 270 votes in the electoral college would finally reflect the popular vote.
These ideas are generally opposed by Republicans precisely because they are small-"d" democratic. For decades, Republicans have clung to power by a shrinking White minority. They cannot and do not want to appeal to a greater cross-section of Americans, so they do whatever is needed to disenfranchise groups perceived as unwinnable, or to at least tamp down on their influence. That’s not a system that protects minority rights.
Some of these reforms might have serious drawbacks. Others might not be necessary if, for example, the electorate more closely tracks the demography of the country. There might be more effective means of expanding democracy. But these ideas should all be on the table. A bipartisan commission of constitutional experts from a wide ideological spectrum should study issues, quantify the extent of our slide toward minority domination and provide a menu of options. The country deserves a national debate on the state of our democracy.
At issue in 2020 is how democratic we want our nation to be. If you think a system that grows less attached to popular will with each passing year can endure and function without losing legitimacy and without regard to racial justice, then you will oppose any change. But let’s be clear: We can choose to limit the tyranny of the minority.