The Congress, Electoral College and Representative Democracy

The Supreme Court confirmation in the Senate last October has had me thinking about the subject of political representation in our country. As citizens we should be secure in our belief that our wishes are being heard and respected.

Brett Kavanaugh was confirmed with a 50-48 vote, with only 44% of the country’s population represented by the winning votes:

“…the reality that a majority of the country’s population is represented by just 18 senators …is driving concerns about the Senate’s ability to function as a representative body in a changing America.”

Two of the yes votes to confirm Kavanaugh came from the two Senators from Wyoming. As of July 1, 2018, Wyoming had a estimated population of 577,737, which is .17% of the total in the U.S. Due to its small population size, Wyoming is only able to seat one person in the U.S. House of Representatives, but is still able to seat two Senators.                   

Two of the no votes came from the two Senators from California. As of July 1, 2018, California’s population was estimated to be 39,557,045 - 12% of the country, which enables it to seat 53 members in the House.

North and South Dakota, with a combined population of .50% of the country’s total, provided three yes votes for Kavanaugh. The fourth vote cast by Democrat Heidi Heitkamp was a no. (A month later, Heitkamp lost to Republican Kevin Cramer in the mid-term elections.)

What is becoming increasingly clear is that control of politics in this country is in the hands of rural America: “Rural America, even as it laments its economic weakness, retains vastly disproportionate electoral strength. Rural voters were able to nudge Donald J. Trump to power despite Hillary Clinton’s large margins in cities like New York. In a House of Representatives that structurally disadvantages Democrats because of their tight urban clustering, rural voters helped Republicans hold their cushion. In the Senate, the least populous states are now more overrepresented than ever before. And the growing unity of rural Americans as a voting bloc has converted the rural bias in national politics into a potent Republican advantage.”

“…Today, states containing just 17 percent of the American population, a historic low, can theoretically elect a Senate majority…”

Back in January of 2016, Mikhail Fishman, editor-in-chief of the Moscow Times, wrote: “…[Vladimir] Putin is always keen to emphasize flaws in the American democracy, usually pointing out that George H. Bush won the presidency in 2000 despite losing the popular vote. In doing so, he seems to be sending a message to his nation that rigged elections in Russia are somehow a similar phenomenon.” (Al Gore garnered nearly a half million more “popular votes” than George Bush, but lost by five Electoral Votes.)

Brett Kavanaugh was nominated by a president who was elected in 2016 with 46.1% of the popular vote. His opponent garnered 48.5%, with a plurality of 2,868,686 votes. To put that number in perspective, there are 15 states with smaller total populations. The win was due to the Electoral College, an institution which exists nowhere else in the world, and is the reason we talk about the “popular vote”, a term that exists nowhere else in the world.

The make up of this body, arrived at by the founders during the time of the Constitutional Convention, has evolved over time and now is comprised of 538 electors. The number is the combined total of 435 House members plus the 100 Senators plus 3 for the District of Columbia. A majority of 270 is needed to win the presidency.

The House of Representatives was envisioned by the founding fathers to be a population-based body, while the Senate would be state-based. In the words of James Madison in Federalist No. 39, “The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people.”

But, as it has been pointed out, the membership of the House has not changed to keep pace with the population growth of the country. “…in response to the 1910 Census, [Congress] expanded the House to a total of 435 seats — to represent 92.2 million people. In the ensuing 107 years, the size of the House has remained unchanged, even as the nation’s population has swelled to well over 300 million — three-and-a-half times what it was in 1910. …As a result, the average member of the U.S. House of Representatives today ‘represents’ somewhere north of 747,000 people."

Further: “Although it’s not the only way to make our political branches (and, through them, our judges) more representative, changing the size of the House of Representatives — from its current total of 435 seats to 650 seats, or one for every 500,000 constituents — would make that body far more reflective of the country at large; would dramatically affect presidential elections; and, perhaps alone among all of these proposed reforms, would most be in keeping with the wishes of the Constitution’s drafters.”

If the House were to be increased to 650 seats, California’s delegation would increase from 53 to 79, while Wyoming’s would remain unchanged. The Dakotas would remain unchanged as well. New York would send 39 members to the House, up from 27. Importantly, the ability of these members, in every affected state, to better represent their constituents would improve dramatically.

As illustrated above by the examples of state-based (Senate) voting to confirm a Supreme Court justice, and how it worked against the wishes of the majority of the population, the Electoral College can have a similar impact and result in much dissatisfaction. “Today, in every state except Nebraska and Maine, whichever candidate wins the most votes in a state wins all the electors from that state, no matter what the margin of victory. Just look at the impact this system had on the 2016 race: Donald Trump won Pennsylvania and Florida by a combined margin of about 200,000 votes to earn 49 electoral votes. Hillary Clinton, meanwhile, won Massachusetts by almost a million votes but earned only 11 electoral votes. The winner-take-all electoral system explains why one candidate can get more votes nationwide while a different candidate wins in the Electoral College.”

The discontent surrounding the feelings of being underrepresented has led to efforts to split up the states with large populations. Parts of California, for example, were upset that their two Senate votes were cast to oppose Kavanaugh. “Today’s Californians would go from being the most underrepresented by the Senate to slightly overrepresented. The people of Jefferson would probably become America’s most overrepresented citizens in terms of swing-state clout — just 949,000 people in possession of two competitive Senate seats, a competitive House seat and three competitive electoral votes.”

Why did it happen that the American people had to accept this lack of representation? And can anything be done to correct it? If, in some cases, they are considering splitting up their states, what would rule out the possibility of their encouraging the abolishment of the Electoral College? The majority of people actually favor going to the “popular vote”. I earlier covered how increasing the size of the House would be another possibility. As for the Senate, there has been talk of statehood for Puerto Rico and the District of Columbia. 

Partisanship will always be a factor, and at present one party benefits from maintaining the status quo, both in the Senate and Electoral College. Citizens of the U.S. that hunger for better representation in our democracy need to demand that party politics take a back seat to the efforts for constructive change.

D. Norman