Consent of the Governed

Consent of the Governed

April 19, 2021

By Marc Elias

https://www.democracydocket.com/2021/04/consent-of-the-governed/

Seven million more Americans voted for Joe Biden than Donald Trump. Yet Republicans filed more than sixty lawsuits to have Trump declared the winner. Even when those failed, 140 Republican Members of Congress voted to reject the results.

26 million more Americans voted for Democrats than Republicans in the U.S. Senate. Yet the body is currently evenly divided. 

Whether it is the presidency, Senate, House, or state legislatures, the pattern is the same—while more voters support Democrats than Republicans, the geography of those voters and the rules of how votes are allocated favor Republicans.

For more than 200 years, the cornerstone of American democracy was majoritarianism—the idea that the candidate with the greatest popular support should prevail. Beginning with the Declaration of Independence, our country’s creed was that government derives its legitimacy from “the consent of the governed.”

This was neither a liberal nor a conservative principle. 

In 1964, the Supreme Court used the majoritarian principle of one-person-one-vote to declare that “in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State’s legislators.”

In 1970, Bob Dole, then a conservative Senator from Kansas, recognized that “majoritarianism is an ingrained element of the US political tradition.” As a result, he reasoned, “any candidate for President who has won a simple majority of the popular vote should be the president.” 

When George W. Bush won the presidency in 2000 while losing the popular vote, it was viewed as an unfortunate glitch in the Electoral College. Republicans celebrated that their candidate prevailed, but they did not view having done so with a minority of the vote as a part of their success. Indeed, four years later, when Bush ran for re-election, his campaign made a point of adopting a plan that prioritized winning not just the electoral college but the popular vote as well. The ideal of majoritarianism was still in place.

This is no longer true. Rather than attempting to obtain the consent of the governed, the Republican Party has turned to a model that relies not on persuasion of voters, but on slicing and dicing the electorate—and erecting more and more severe and onerous barriers to broad participation in elections—to help ensure that they remain in power, regardless of whether they have majority support.

The Republican rejection of majoritarianism did not happen overnight, nor did it happen in a vacuum. It is the result of a decision by the Republican Party to fight the demographic shifts in the electorate for more than a decade. With each successive election, the Republican Party became older, less female, and less diverse. In retrospect, the election of Donald Trump in 2016 was the straw that broke the back of GOP support for majority rule.

In 2013, the RNC lamented in its public autopsy of the 2012 election that “Republicans have lost the popular vote in five of the last six presidential elections.” But, by 2016, Republicans were boasting about how they won the presidency in 2016 while losing the popular vote by 5 million votes. 

In the wake of the 2020 election, the Republican Party has completed its transformation into an anti-majoritarian party. It not only fails to win majorities; it no longer tries. Anti-majoritarian governing is no longer seen by the Republican Party as a flaw to be fixed, but a feature to be exploited.

When a party no longer competes to win a majority of the vote, its only means to victory is the disenfranchisement of others. As much as anything, this explains the rush by Republican legislatures to adopt extreme anti-voting legislation. Without a commitment to majoritarianism, any tactic to preserve minority rule becomes acceptable. 

In a recent argument before the Supreme Court over the scope of the remaining protections of the Voting Rights Act, Justice Barrett asked the Republican Party’s lawyer what the Party’s interest was in preventing voters who vote outside of their normal polling location from having their votes counted. Without missing a beat, the lawyer replied: “Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game.”

When you cannot convince voters to vote for your candidates, increases in voter participation becomes a competitive disadvantage. When an expansion of the electorate spells defeat, then participation in politics is a zero-sum game.

In 1982 Ronald Reagan signed the reauthorization of the Voting Rights Act in 1982 knowing that it did not benefit him electorally. Yet, standing in the East Room, he proclaimed: “The right to vote is the crown jewel of American liberties, and we will not see its luster diminished.” Awkwardly, he then added: “To so many of our people – our Americans of Mexican descent, our black Americans – this measure is as important symbolically as it is practically. It says to every individual, ‘Your vote is equal, your vote is meaningful, your vote is constitutional.’”

Ronald Reagan knew that the Black and Latino voters he referenced were unlikely to support his reelection in 1984. Yet President Reagan believed in the importance of majoritarianism. 

When reviewing that 1982 law in 2009, Justice Scalia suggested that no politician could ever vote against reauthorization of the Voting Rights Act because of the political stigma in doing so. But when the Voting Rights Act came up for renewal in the U.S. House in 2019, every Democrat voted yes and all but one Republican voted no. 

Today’s Republicans have so thoroughly rejected the old maxim that “politics is a game of addition” that it would be laughable to even suggest it as an electoral strategy. There are no longer serious discussions of how a Republican can win the popular vote in four years. Instead, today’s GOP is gaming out scenarios where they can lose by more than 7 million votes and still win the Electoral College. 

All of this poses a real danger to our democracy because when a government fails to govern through majority appeals, it becomes hollowed out and brittle. It no longer has the moral force of the consent of the governed. Eventually its focus on procedural hurdles and barriers to voting lead to cynicism and unrest. 

Democracy does not die quietly in darkness. Rather, it is strangled in the cold light of anti-majoritarian daylight. We must act before it is too late.