Daniel Markovits and Ian Ayres teach about law, economics and politics at Yale Law School. Ayres is an author of “Voting With Dollars.”
Many see the midterm results as a split decision. Democrats herald their victory in the House as a repudiation of President Trump’s agenda. Republicans, meanwhile, regard picking up three seats in the Senate as a vindication of that very agenda, and the president tweeted that the election was a “very Big Win.”
Both appraisals accord Trumpism a democratic legitimacy it has not earned and does not deserve. Look behind the midterm elections’ outcomes — and the distortions produced by small states in the Senate and by gerrymandering in the House — to focus directly on the votes that constitute democratic bedrock, and a very different picture comes in to focus. The partisan balance of power — even the new balance, including a Democratic House — subjects the United States to undemocratic minority rule.
As of this writing, Democratic candidates for the House overall have won 4.2 million more votes than Republican candidates did. And partisan gerrymanders and geographic sorting meant that the Democrats needed every vote they got.
Similarly, although the 2018 tallies are not complete, we estimate that the Democratic senators in the new Congress — taken all together over the three cycles that elected them — will have won 4.5 million more votes than Republican senators. The members of the Democratic minority, on average, each received about 30 percent more votes than their Republican counterparts.
Both results represent trends rather than historical anomalies or accidents. Research by the political analyst David Wasserman (of the Cook Political Report) shows that the current Republican biases in both the House and Senate elections are at all-time highs — greater than the partisan biases in favor of either party at any prior time for which data exist.
The electoral college system extends these biases into presidential elections. Donald Trump himself also lost the popular vote — by 2 percentage points, or nearly 3 million votes — in 2016. This difference represents the greatest popular-vote loss suffered by any winning president in history.
President Trump and the Republican senators have used their offices to remake the judiciary in their own image. Justices Neil M. Gorsuch and Brett M. Kavanaugh entrench a reliable conservative majority at the Supreme Court, in spite of being nominated by a popular-vote-losing president and confirmed by senators who, our research shows, collectively won (in each case) about 24 million fewer votes than the senators who voted against the nominations.
All in all, then, a Democratic Party that has dominated the popular vote across all federal offices enjoys only a narrow elective majority in one half of one branch of the federal government. And Trump and Republican senators are using their control of the rest of the government to promote policies that will extend and entrench the Republican skew in elections. The Supreme Court will likely soon hear a series of cases in election law that review the very practices that underwrite Republican power.
Finally, these patterns follow a dark demographic logic. White men — roughly one-quarter of the total U.S. population — constitute Trumpism’s core constituency. Exit polls showed they favored Trump over Hillary Clinton by 62 to 31 percent and favored Republicans over Democrats in this year’s midterms by 60 to 39 percent. No other major demographic group supports the Trump agenda with anything approaching this enthusiasm. We’ve estimated that if white men voted like the rest of America, Democrats would have won the 2016 presidential election by 19 percent and would, following the midterms, control a majority of the Senate with at least 20 more seats.
Because of the distortions of our current election process, the atypical preferences of this historically privileged minority continue to dominate almost the entire government. White men’s votes should of course be counted like everyone else’s, but they should not count for more.
If democracy is what the great political scientist Robert Dahl once called “the continuing responsiveness of the government to the preferences of its citizens, considered as political equals,” then the true verdict on the midterms departs dramatically from the common view. Trumpism does not enjoy any sort of democratic mandate — not even a mixed one.
It is instead a case of minority rule.