Today’s Must-Read: Jacob Levy at Niskanen on Republicans’ Fear of Democracy

Jacob Levy:

A favorite reply to the complaint about the Electoral College outcomes is to note that campaign strategies are endogenous to the electoral rules, and that it is impossible to infer what would have happened if both campaigns had been trying to win the popular vote instead. That reply is probably right as to 2000, when the popular vote margin was .5 percent and candidate popularity as measured by opinion polls was essentially tied. It’s probably impossible to know the counterfactual as to who would have won if both campaigns had been seeking popular majorities all along. It is certainly wrong as to 2016, when the popular vote margin was much larger, when there was a hard ceiling on Trump’s support nationwide, when polling consistently showed a Clinton lead even after the Comey letter, and when the urban-rural divide in voting strength was much larger than in 2000. (If you are trying to run up large popular margins, you have to be able to focus get-out-the-vote efforts in concentrated areas with large populations and a large majority favoring your candidate, i.e., cities.)

At the state level, matters are different but no better. The starkest symbol of the Republican approach to state politics is provided by the fact that two GOP secretaries of state, Kris Kobach of Kansas and Brian Kemp of Georgia, served as chief election officers and pursued extremely aggressive purges of voting rolls while running for governor. (Kemp won, Kobach lost.) After the 2018 election, Republican legislatures in Michigan and Wisconsin rewrote the separation of powers in their states
, using bills signed by lame-duck Republican incumbents to change the rules of the game for their incoming Democratic successors. (The same had happened in North Carolina in 2016.) And Republican legislatures have conducted a decade-long assault on voting rights in the states, ratcheting up identification requirements, conducting scare campaigns against immigrant voters that chill participation by Latino citizens, rolling back early voting and absentee voting, and playing games with the opening hours and numbers of polling places in Democratic-leaning cities. The best current research suggests that the voter ID laws in particular have not had much effect on turnout, but that’s not for lack of trying on the part of Republicans.

And the state and federal levels interact. The Republican failure to command majorities of votes cast at the federal level is all the more striking given the state-level efforts to limit the electorate in the first place. And the Republican-dominated Supreme Court gutted the Voting Rights Act in the 2013 decision Shelby County v. Holder, opening the floodgates to almost-entirely-Republican state-level efforts to restrict access to the ballot.

The Republican Party is now the beneficiary of all the countermajoritarian mechanisms that make it difficult to translate voting pluralities or majorities into electoral wins, including those that were deliberate creations of constitutional design, those that evolved more or less accidentally, and those that were opportunistically engineered in recent decades. It is moreover the beneficiary of actions that selectively suppress voter turnout and eligibility to vote. Democrats more often than not command popular-vote pluralities even though many Democratic-leaning voters are discouraged or prohibited from getting to the ballot box at all.

The Trump administration has tried to blow smoke about all this, asserting, in defiance of all evidence, that millions of illegal votes cost Trump the popular vote in 2016. In reality, Trump’s victory stands as the culmination of a Republican willingness to give up on trying to reach pluralities or majorities of voters, and to be willing to grab any narrow victory by any means necessary, and in particular by aggressively trying to discount the votes of African-Americans, Hispanics, and Native Americans relative to those of whites. McConnell’s machinations in 2016 tie the whole Republican enterprise of minoritarian election-rigging to Trump, and if he goes down in disgrace, the enterprise that secured his victory should go with him….

Winning a majority vote doesn’t have all the moral importance that the romantic conception of a democratic will imputes to it. But that doesn’t somehow make the inability to win a majority vote into a virtue. Countermajoritarianism has some place as a check on untrammeled power, but it is not itself a foundation for political legitimacy.
Imagine if Democrats had won the popular vote for the House by only 5 percent or 6 percent and had failed to flip control of the chamber, at a time when the Republican Senate majority represents an electoral minority, and a president whose legitimacy is deeply compromised on other grounds to begin with was chosen by an electoral minority, and that president and Senate are locking in control of the Supreme Court for years to come. And, faced with the knowledge of their shrinking popular base, imagine that Congress and president further enabling state-level disenfranchisement efforts.

When incumbent owners and industries shape the rules to prevent themselves from facing free and fair competition, supporters of open markets have no difficulty in condemning that as rent-seeking. The attempt to engineer electorates to one’s liking — through selective identification requirements or restricted ballot places and hours, through gerrymandering, through felon disenfranchisement, and so on, and so on — is also rent-seeking. It is the effort to replace general, impersonal, rule-of-law-type decision-making procedures with self-reinforcing power for incumbent elites. Political power is both itself a valuable good and is the key instrumental good in the pursuit of rents. Empowering political coalitions to constantly reselect their own electorates, rewrite the separation of powers rules under which they operate, and redefine the rules of competition in their own interest just is to enshrine rent-seeking as standard operating procedure.


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