By Jacob T. Levy

Simple voting rules for a complex world

Various politicians, activists, and thinkers, some of them here at Niskanen, are already making plans for what a post-Trump center-right will be. Both those who are actively “Never Trump” and those in the furrowed-brow caucus expressing occasional concern at intemperate tweets recognize the possibility that sooner or later there will be a need to shape a very different Republican Party. That means there will be opportunities for those with ideas about how to distance themselves from the disgrace of the current era.

One sign of seriousness for such people would be a commitment to building a Republican Party that can win free and fair elections, a Republican Party whose strategy rests on appealing to pluralities or majorities and that can embrace more voters rather than fewer. A serious post-Trump agenda requires a Republican commitment to democracy.

The indictment of Republicans on this count is familiar but no less accurate for that. (My colleague Will Wilkinson has written about it often.) At the federal level, Republicans have won a plurality of the popular votes cast in a presidential election only once in the last thirty years. They’ve managed majorities of the electorate for the U.S. House twice [correction: three times] over the same time span. The Senate isn’t elected all at once and so comparisons with the electorate are harder, but the discrepancy between total votes cast and Senate outcomes has grown to historic highs , and to the advantage of Republicans. At no point in the last 25 years have self-identified Republicans outnumbered self-identified Democrats among the electorate. But this Republican minority has controlled the presidency, the House, and the Senate disproportionately often over those years, winning the presidency twice on the basis of Electoral College-popular vote mismatches, and building up what has been calculated as roughly a 7 percent bonus in the House such that if Democrats had won the national popular vote by 6 percent instead of 8.6 percent last November, they probably would not have recaptured control. And, like the Federalist Party facing electoral extinction in 1800, Republicans have worked to secure themselves a permanent redoubt in the judiciary. Mitch McConnell, leading a Senate majority that represented a minority of the electorate, held open the Supreme Court vacancy left by Antonin Scalia’s death in 2016 and refused to allow the Obama administration to expose Russian interference in the election in a bipartisan way in order to secure the victory (in the Electoral College) of Donald Trump, who would then fill the seat and cement a probably decades-long conservative majority on the Supreme Court.

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.

The intellectual distrust of democracy

It’s often hard to know how directly to connect political ideas and political practice. What GOP politicians have done has been explicable as power-seeking. But conservative, center-right, and market-liberal thinkers and politicians have a longstanding suspicion of arguments that put a great deal of emphasis on majoritarian democracy. Even at levels much more sophisticated than the mindless invocation of “a republic, not a democracy” (neither of those words meant what you think they did in the 18th century, and the sense in which the contrast made sense then does not apply to any significant dispute today), intellectuals of the center-right and right have not put much normative pressure on allied politicians to be good democrats, because they have their doubts about the priority or even the value of democracy.

There are many overlapping reasons for this. During the decades when the central battle of political ideas was between capitalism and socialism, those who favored the former worried that majoritarianism tended toward the latter. The many, so it was thought, will always be easy to persuade to tax the wealthy few, if not expropriate them outright. The heroic individual entrepreneur facing a hostile democratic mob figured large in the political-economic imagination of the postwar (really the post-New Deal) right. The desire of the democratic many to vote themselves bread and circuses at the public expense was a constant rhetorical trope. The success of undemocratic but market-oriented Hong Kong was widely celebrated, most famously in Milton and Rose Friedman’s Free to Choose (in print and on television). More recently, market-liberal thinkers have made a great deal out of the social science literature on voter ignorance, over and over again debunking the idea that democratic majorities automatically know best, that majority will is proof of the wisdom of the political action that follows. Those who understand the way that markets process dispersed information often believe that political decisions compare unfavorably to market processes. And writings by the Founders add prestige to a suspicion that democracy amounts to mob rule.

All of this encourages American conservatism and market liberalism to overlook the deep relationship between democratic government and modern commercial capitalism, a relationship that was unknown to the Founders because it postdates them. The kind of positive-sum market economy that has transformed the world since 1800 through compounding productivity increases and economic growth is very different from the ancient Rome riven by class conflicts over zero-sum land distribution, but the Founders understood the Roman precedents better than they understood the world that was about to emerge. And that economic world emerged with,not against, the development of a kind of democratic government they also did not foresee, government by contending, permanent political parties alternating in power by competing for votes in a mass-suffrage society. As North, Wallis, and Weingast show in Violence and Social Orders , we should really understand democratization and the rise of commercial capitalism as part of the same process, one they characterize as the rise of the open-access order. The organizational and legal tools that coalitions of elites had previously reserved for themselves as tools of rent extraction — enforceable contracts, the right to incorporate, secure property ownership, political caucusing, and of course the franchise — were broadly democratized over a surprisingly short span of decades. And so the corporation, which had been a vehicle for mercantilist and protectionist monopoly granted by royal privilege, became a generally accessible organizational form usable for almost any legally permissible collective activity; elite parliamentary caucus groups developed into mass-membership-based political parties; and the share of the adult population with formal political voice skyrocketed, approaching 100 percent in just over a century. This was the era of the takeoff in capitalist economic growth — not, as all those examples from classical antiquity suggested to 18th-century thinkers, an era when the expanding franchise led to the expropriation of the rich and the destruction of private wealth.

As I suggested in the prior essay in this series, Benjamin Constant perceived that the emerging new order would face a different kind of threat. While he understood all too well the dangers posed to it by revolutionary mobs, he also saw that those who comfortably enjoyed the fruits of modern commerce could easily be tempted away from the democratic defense of it. Democratic politics is both time-consuming and uncertain, and so, he thought, the middle and moneyed classes would be easily swayed by the Bonapartist temptation: the autocrat who promised to deploy the security apparatus of the state in defense of order and stability, and without requiring the time or energy of political engagement. And so it has been. The political scientist Daniel Ziblatt, who rose to public fame along with his co-author Steven Levitsky for his analysis of the breakdown of democratic norms and the rise of authoritarian populism in How Democracies Die , documented in an earlier book how historically, conservative parties have been the crucial hinge in whether democracy emerges and stabilizes in the first place. Especially when they are weak, they may give in to the temptation to use the security forces to solidify existing privilege, and they can prevent democratization altogether. (Constant, no friend to socialism, wrote further about the risk of coups d’etat and constitutional violations carried out in defense of existing property relations in his Principles of Politics.)

Two things should be noted here. One is that it upends the classical republican idea that the threat to constitutional government comes chiefly from the redistributionist mob, the stereotypical seekers of bread, circuses, and land reform. While there have been deeply despotic socialist regimes in modernity, these have almost never come about through the domestic subversion of democratic governments; they have been imposed by external military domination or else have replaced domestic oligarchic autocracies of one type or another. The fear of the redistributionist mob exercises a powerful hold on the conservative imagination, and has often served as an excuse for repression and constitutional violation. But we should understand that excuse as an excuse.

The second thing to note is that stability of existing ownership is not the same as liberal markets and commercial society. When conservative parties subvert democracy in the name of fighting redistribution or socialism, market liberals often let themselves be fooled into thinking that what’s being defended is something like the kind of capitalism they support. But ownership is not commerce. ( Locke is not Smith, and Smith is the truer source of market liberalism. ) It was the abolition of entail and primogeniture, the conversion of landed estates into ordinary factors of production to be bought and sold, that helped to launch commercial society, not the creation of the landed estates in the first place. The violent defense of existing ownership is a return to the regime of rent-seeking by traditional elites that the open-access order displaced. That we use “rent” to describe both the general category of unearned returns to privilege and the specific case of returns to incumbent landowners is not a coincidence. For a microcosm of what the prioritization of the privileges of incumbent owners over the interests of a freely exchanging market means, consider NIMBY barriers to building construction in many American cities, ably surveyed by my Niskanen colleagues Brink Lindsey and Steven Teles in The Captured Economy .

And so the distrust of democracy among market-sympathetic liberal and conservative thinkers is a deep and pernicious mistake. It typically juxtaposes democratic decision-making to market decision-making, as if “democracy” were just a synonym for “politics” or “the state,” as if the contrast to “democratic” were “economic” rather than “autocratic.” We should sharply distinguish the question of how much the state ought to do from the question of how much democratic control of the state there ought to be, and thereby stop allowing market-liberal critiques of too much politics to be used as any kind of intellectual cover for the erosion of democratic government.

And cover is all it is. Taken all together, really-existing American limits on fairly representative and competitive democracy are laughably unrelated to the principled justifications intellectuals offer for some or another corrective to untrammeled majoritarianism. The interlocking and mutually-reinforcing system of state and federal constraints on democracy across branches doesn’t select for more-competent voters, or promote more liberty-respecting outcomes, or create a countermajoritarian political culture. The package of existing limits on majority political rule don’t generate markets or liberty or limits on politics; it just generates minority political rule.

The independent judiciary is and needs to remain counter-majoritarian in order to constrain the scope of state power as such. But the case for countermajoritarianism in the elected branches that settle who is in charge of state power is very much weaker. Even the Senate, the most constitutionally-defensible component of the package (and one I have defended in my own writing on federalism over the years) at this point overrepresents the economic interests of primary industries and the nationwide ideological positions of rural whites much more than it represents the states qua states, its notional justification in the system. And that notional justification itself rested on balancing out state governments, a House, and (since the Twelfth Amendment and the rise of parties) a presidency that are responsive to the majority, and loses its force in the present arrangement.

I can imagine a defense of the Electoral College that makes a virtue out of its occasionally nonmajoritarian outcomes. Those outcomes could teach us not to fetishize the results of an election, not to equate a procedural victory with the unified popular will, still less with moral truth. Teaching people not to overinflate how much an electoral victory morally means would be productive and valuable, and the victors could govern in an appropriately chastened way, understanding the element of chance in their victory. I’m fond of quoting the philosopher Bernard Williams’ dictum about the importance but difficulty of remembering that a victory in politics“does not in itself announce that the other party was morally wrong or, indeed, wrong at all. What it immediately announces is that they have lost.” The occasional popular-Electoral mismatch could drive this lesson home and remind everyone not to treat victory as implying vox populi as in turn implying vox dei.

But this is nothing like what actually happens. Post-2016 Trump and post-2000 Bush instead governed with an almost fanatical determination to pretend that their victories did represent a unified national will. Trump’s brand of politics in particular leaves no room for that modest sense that victory was just something that happened to happen. He instead throws himself into the attitude that winning proves he was right about everything, that it provides a universal absolution for any previous wrongs, that it means he was chosen by The People, his critics are enemies of The People, his opponents are actually traitors. And his supporters embrace all of this. If a countermajoritarian or semimajoritarian institution like the Electoral College yields political winners who pretend to have supermajoritarian legitimacy rather than winners with a chastened sense of political contingency, then it’s not serving any useful purpose of checking majority power or passion. It’s just giving a minority the power of a majority, and encouraging the minority to keep re-engineering the rules to immunize itself from political challenge.

Electorate-rigging is rent-seeking

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 isto enshrine rent-seeking as standard operating procedure.

Rolling back the political economy of rent-seeking and favoring universal, impersonal, rule-of-law policy has been a priority of my Niskanen colleagues since even before there has been a Niskanen Center. Steven Teles coined the marvelously ugly word “kludgeocracy” to describe how much of American policy works: don’t admit what you’re doing, don’t be transparent about costs, don’t make the rules easy to understand, jury-rig a regime of complexity and exceptions that is ripe for opportunism and rent-seeking. That describes American democratic procedures, not just American public finance. The rules for voting can be made needlessly obscure and complex just as much as the tax code can, and with the same consequences. We can’t prioritize the policy reforms of constraining rent-seeking and protecting open access to markets and universal access to equal state benefits while ignoring the political processes built to protect those rents. While there is always an element of arbitrariness and artifice in the choice of procedures, while jurisdictional rules don’t correspond to universal truths, there is a difference between aiming at universal access under general rules and aiming to, as the 4th U.S. Circuit Court of Appeals put it, build a gerrymander that “would target African-Americans with almost surgical precision.”

And in the United States, the incumbent elites seeking to entrench their power against fair competition have almost always been whites. They haven’t always been Republicans, as the Republican Party was not always the party of white domination; but today it is, and they are. Occasional efforts to break that power and open the channels of political competition are always met by protests in the name of not only countermajoritarian republicanism but also federalism and state autonomy. The Fifteenth Amendment, however, includes an express grant of legislative power to Congress, the power to take action to ensure that states do not discriminate by race in access to the ballot box. This was the purpose of the Voting Rights Act. The Supreme Court gutted enforcement of the VRA in the misguided Shelby County v. Holder in 2013. Probably the most important reform is to undo that. The Court complained that states and localities were subject to special scrutiny based on 40-year-old information; Congress can reply with a new round of findings and a new formula, restoring the preclearance system. One of my main questions for Republicans who present themselves as representing a break with Trumpism is whether they are willing to endorse such a re-establishment of the VRA. If they are not, then at best they have misunderstood what made the system so vulnerable to Trumpism in the first place, and at worst they intend to keep Trump’s minoritarian and white-supremacist Republican Party intact without the embarrassing tweets and collusion.

Now, I don’t think that being a good-faith Republican reformer requires just signing on to all Democratic proposals for electoral reform, such as everything wrapped together in the Democrats’ HR 1 . Besides the Voting Rights Act there is a great deal that everyone trying to make a break with the era of Trump should be able to agree on — requiring that presidential candidates disclose tax returns, for example — but there will certainly be room for debate on, say, campaign finance, statehood for D.C. and Puerto Rico, and expanding the size of the House. Indeed, I think it would be healthy for there to be different partisan voices and interests among the good-faith efforts to improve the political system, and unhealthy if Republicans cede that ground to Democrats entirely.

It would be good, in other words, to have a competition in the direction of freer, fairer, and more open-access elections, with competing ideas about what that means and what to prioritize. That’s compatible with making an issue out of instances of Democratic misconduct that themselves call for future-oriented, general, rule-governed remedies. But it means not an agenda based on fake panic about nonexistent undocumented-immigrant voting or almost nonexistent voter fraud, not an agenda about dressing up restriction as reform. I am not sure that there are currently any powerful Republicans who are willing to try to take part in those debates, Republicans who are willing to embrace the goal of building a party that can win pluralities and majorities of freer and more open elections. I am sure that it will be a good sign when there are.

In the conclusion of this series, I will discuss the relationship between this agenda of post-Trump democratization and the problems of using “moderation” as an umbrella concept for the path forward.

Photo: Erik Hersman under CC BY 2.0.

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