American Democracy Was Never Designed to Be Democratic

To look on the bright side for a moment, one effect of the Republican assault on elections—which takes the form, naturally, of the very thing Republicans accuse Democrats of doing: rigging the system—might be to open our eyes to how undemocratic our democracy is. Strictly speaking, American government has never been a government “by the people.”

This is so despite the fact that more Americans are voting than ever before. In 2020, sixty-seven per cent of eligible voters cast a ballot for President. That was the highest turnout since 1900, a year when few, if any, women, people under twenty-one, Asian immigrants (who could not become citizens), Native Americans (who were treated as foreigners), or Black Americans living in the South (who were openly disenfranchised) could vote. Eighteen per cent of the total population voted in that election. In 2020, forty-eight per cent voted.

Some members of the loser’s party have concluded that a sixty-seven-per-cent turnout was too high. They apparently calculate that, if fewer people had voted, Donald Trump might have carried their states. Last year, according to the Brennan Center for Justice, legislatures in nineteen states passed thirty-four laws imposing voting restrictions. (Trump and his allies had filed more than sixty lawsuits challenging the election results and lost all but one of them.)

In Florida, it is now illegal to offer water to someone standing in line to vote. Georgia is allowing counties to eliminate voting on Sundays. In 2020, Texas limited the number of ballot-drop-off locations to one per county, insuring that Loving County, the home of fifty-seven people, has the same number of drop-off locations as Harris County, which includes Houston and has 4.7 million people.

Virtually all of these “reforms” will likely make it harder for some people to vote, and thus will depress turnout—which is the not so subtle intention. This is a problem, but it is not the fundamental problem. The fundamental problem is that, as the law stands, even when the system is working the way it’s designed to work and everyone who is eligible to vote does vote, the government we get does not reflect the popular will. Michael Kinsley’s law of scandal applies. The scandal isn’t what’s illegal. The scandal is what’s legal.

It was not unreasonable for the Framers to be wary of direct democracy. You can’t govern a nation by plebiscite, and true representative democracy, in which everyone who might be affected by government policy has an equal say in choosing the people who make that policy, had never been tried. So they wrote a rule book, the Constitution, that places limits on what the government can do, regardless of what the majority wants. (They also countenanced slavery and the disenfranchisement of women, excluding from the electorate groups whose life chances certainly might be affected by government policy.) And they made it extremely difficult to tinker with those rules. In two hundred and thirty-three years, they have been changed by amendment only nine times. The last time was fifty-one years ago.

You might think that the further we get from 1789 the easier it would be to adjust the constitutional rule book, but the opposite appears to be true. We live in a country undergoing a severe case of ancestor worship (a symptom of insecurity and fear of the future), which is exacerbated by an absurdly unworkable and manipulable doctrine called originalism. Something that Alexander Hamilton wrote in a newspaper column—the Federalist Papers are basically a collection of op-eds—is treated like a passage in the Talmud. If we could unpack it correctly, it would show us the way.

The Bill of Rights, without which the Constitution would probably not have been ratified, is essentially a deck of counter-majoritarian trump cards, a list, directed at the federal government, of thou-shalt-nots. Americans argue about how far those commandments reach. Is nude dancing covered under the First Amendment’s guarantee of the freedom of expression? (It is.) Does the Second Amendment prohibit a ban on assault weapons? (Right now, it’s anyone’s guess.) But no one proposes doing away with the first ten amendments. They underwrite a deeply rooted feature of American life, the “I have a right” syndrome. They may also make many policies that a majority of Americans say they favor, such as a ban on assault weapons, virtually impossible to enact because of an ambiguous sentence written in an era in which pretty much the only assault weapon widely available was a musket.

Some checks on direct democracy in the United States are structural. They are built into the system of government the Framers devised. One, obviously, is the Electoral College, which in two of the past six elections has chosen a President who did not win the popular vote. Even in 2020, when Joe Biden got seven million more votes than his opponent, he carried three states that he needed in order to win the Electoral College—Arizona, Georgia, and Pennsylvania—by a total of about a hundred thousand votes. Flip those states and we would have elected a man who lost the popular vote by 6.9 million. Is that what James Madison had in mind?

Another check on democracy is the Senate, an almost comically malapportioned body that gives Wyoming’s five hundred and eighty thousand residents the same voting power as California’s thirty-nine million. The District of Columbia, which has ninety thousand more residents than Wyoming and twenty-five thousand more than Vermont, has no senators. Until the Seventeenth Amendment was ratified, in 1913, senators were mostly not popularly elected. They were appointed by state legislatures. Republicans won a majority of votes statewide in Illinois in the 1858 midterms, but Abraham Lincoln did not become senator, because the state legislature was controlled by Democrats, and they reappointed Stephen A. Douglas.

Even though the Senate is split fifty-fifty, Democratic senators represent forty-two million more people than Republican senators do. As Eric Holder, the former Attorney General, points out in his book on the state of voting rights, “Our Unfinished March” (One World), the Senate is lopsided. Half the population today is represented by eighteen senators, the other half by eighty-two. The Senate also packs a parliamentary death ray, the filibuster, which would allow forty-one senators representing ten per cent of the public to block legislation supported by senators representing the other ninety per cent.

Many recent voting regulations, such as voter-I.D. laws, may require people to pay to obtain a credential needed to vote, like a driver’s license, and so Holder considers them a kind of poll tax—which is outlawed by the Twenty-fourth Amendment. (Lower courts so far have been hesitant to accept this argument.)

But the House of Representatives—that’s the people’s house, right? Not necessarily. In the 2012 Presidential election, Barack Obama defeated Mitt Romney by five million votes, and Democrats running for the House got around a million more votes than Republicans, but the Republicans ended up with a thirty-three-seat advantage. Under current law, congressional districts within a state should be approximately equal in population. So how did the Republicans get fewer votes but more seats? It’s the same thing that let Stephen A. Douglas retain his Senate seat in 1858: partisan gerrymandering.

This is the subject of Nick Seabrook’s timely new book, “One Person, One Vote: A Surprising History of Gerrymandering in America” (Pantheon), an excellent, if gloomy, guide to the abuse (or maybe just the use) of an apparently mundane feature of our system of elections: districting.

We tend to think of a “gerrymander” as a grotesquely shaped legislative district, such as the salamander-like Massachusetts district that was drawn to help give one party, the Democratic-Republicans, a majority in the Massachusetts Senate in the election of 1812. The governor of the state, Elbridge Gerry, did not draw the district, but he lent his name to the practice when he signed off on it. (Seabrook tells us that Gerry’s name is pronounced with a hard “G,” but it’s apparently O.K. to pronounce gerrymander “jerry.”)

Gerry’s gerrymander was by no means the first, however. There was partisan gerrymandering even in the colonies. In fact, “the only traditional districting principle that has been ubiquitous in America since before the founding,” Seabrook writes, “is the gerrymander itself.” That’s the way the system was set up.

Partisan gerrymandering has produced many loopy districts through the years, but today, on a map, gerrymandered districts often look quite respectable. No funny stuff going on here! That’s because computer software can now carve out districts on a street-by-street and block-by-block level. A favorite trick is moving a district line so that a sitting member of Congress or a state legislator is suddenly residing in another district. It’s all supposed to be done sub rosa, but, Seabrook says, “those in the business of gerrymandering have a tendency to want to brag about their exploits.”