Joe Biden Won the Most Votes. It Doesn’t Matter.
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As the 538 members of the Electoral College gather on Monday to carry out their constitutional duty and officially elect Joe Biden as the nation’s 46th president and Kamala Harris as his vice president, we are confronted again with the jarring reminder that it could easily have gone the other way. We came within a hairbreadth of re-electing a man who finished more than seven million votes behind his opponent — and we nearly repeated the shock of 2016, when Donald Trump took office after coming in a distant second in the balloting.
No other election in the country is run like this. But why not? That question has been nagging at me for the past few years, particularly in the weeks since Election Day, as I’ve watched with morbid fascination the ludicrous effort by Mr. Trump and his allies to use the Electoral College to subvert the will of the majority of American voters and overturn an election that he lost.
The obvious answer is that, for the most part, we abide by the principle of majority rule. From the time we are old enough to count, we are taught that the bigger number beats the smaller number. It is the essence of fairness. It dictates outcomes in all areas of life, from politics to sports to cattle auctions. It’s decisive even in institutions whose purpose is to serve as a buffer against the majority.
“Take the Supreme Court,” said Akhil Amar, a constitutional scholar at Yale Law School. “No one thinks that when it’s 5 to 4, the four win and the five lose. Everyone understands that five beats four. It goes without saying.”
But the principle is especially important in elections. Why? Boil it down to three pillars of democratic self-governance: equality, legitimacy and accountability. We ignore them at our peril. And yet they are being ignored right now by millions of Americans, not to mention hundreds of high-ranking elected officials of one of our two major political parties.
It occurred to me that in this moment, a defense of the concept of majority rule can no longer go without saying.
First, and most fundamental: Majority rule is the only rule that treats all people as political equals. “That’s actually enormously important,” said Richard Primus, a professor at the University of Michigan law school. Any other rule inevitably treats certain votes as worth more than others. Sometimes that’s what we want, as when we require criminal juries to be unanimous in voting to convict. In that case, “there is one error that we prefer to the other error,” Mr. Primus said. “We want to make false convictions very difficult, much more rare than false acquittals.”
But in an election for the president, he said, there is no “morally relevant criterion” for departing from majority rule. Voters in one part of the country are no wiser or more worthy than voters in another. And yet the votes of those in certain states always matter more. “What could possibly justify that?” Mr. Primus asked.
This is not just an abstract numerical concern. When people’s votes are treated as unequal, it’s a short jump to treating people as unequal. Put another way, it’s not enough to say that we’re all equal before the law; we also must be able to have an equal say in the choice of the representatives who make and enforce the laws.
There is a second reason majority rule is critical: It bestows legitimacy on the system. A representative government only works when its citizens see the electoral process as fair. When that legitimacy is absent, when people perceive — often accurately — that their vote doesn’t matter, they will eventually reject the system.
“If we’re going to rule ourselves, we’re going to be ruled by majorities,” said Astra Taylor, an author and democracy activist. “There’s a stability in that idea. There’s a sense of the people deciding for themselves and buying in. That stability is incredibly valuable. The alternative is one in which we’re being ruled by something which is outside of us, whether a dictator or a technocracy or an algorithm.”
Finally, majority rule ensures electoral accountability. As the economist Amartya Sen put it, democracies don’t have famines. A government that doesn’t have to earn the support of a majority of its citizens, or at least a plurality, is not truly accountable to them, and has no incentive to represent their interests or provide for their needs. This opens the door to neglect, corruption and abuse of power. (Talk to the millions of Californians ignored by President Trump during wildfire season.) “If someone has to run for re-election, they have to put attention into running things well,” Mr. Amar said. “If they don’t, they will lose elections.”
The benefits of majority rule aren’t just a preoccupation for liberals like me, still stewing over the elections of 2000 and 2016. On election night 2012, when it appeared briefly that Mitt Romney might win the national popular vote but not the Electoral College, Donald Trump tweeted, “The electoral college is a disaster for a democracy.” A little while later, he tweeted, “More votes equals a loss … revolution!”
He deleted that second one, but he needn’t have. He was only expressing a gut feeling everyone can recognize: The person who gets the most votes should win. If you doubt that, consider that the essence of the case Mr. Trump and his backers are making in every state where they are challenging the result is that the president won more votes than Mr. Biden.
Mr. Trump made the same argument in 2016, when he lost the popular vote by nearly three million, yet insisted that he had actually won it “if you deduct the millions of people who voted illegally.”
That both claims are laughably false is beside the point. Mr. Trump knows that in a democracy, real legitimacy comes from winning more votes than the other guy (or woman).
Of course, everyone is a fan of majority rule until they realize they can win without it. In the last 20 years, Republicans have been gifted the White House while losing the popular vote twice, and it came distressingly close to happening for a third time this year. So it’s no surprise that in that period, the commitment of Republicans to majority rule, along with other democratic norms, has plummeted. A report by an international team of political scientists found a steep drop in Republican support for things like free and fair elections, and the respectful treatment of political opponents. The party’s rhetoric “is closer to authoritarian parties” in Eastern Europe, the report found.
For modern Republicans, democracy has become a foreign language. “We’re not a democracy,” Senator Mike Lee of Utah tweeted in October, in what has become a disturbingly common refrain among conservatives. “Democracy isn’t the objective; liberty, peace, and prospefity are. We want the human condition to flourish. Rank democracy can thwart that.”
Notice how, in Mr. Lee’s telling, “democracy” morphs into “rank democracy.” What does he mean by “rank democracy”? Presumably, what James Madison referred to as direct or “pure” democracy, the form of self-rule in which people vote directly on the laws that govern them. But there is no such thing as “rank democracy” when it comes to elections. The term is nothing more than a modern Republican euphemism for majority rule.
Speaking of the founders, Republicans love to invoke them in support of their stiff-arming of democracy. Perhaps they forgot what those founders actually said.
“The fundamental maxim of republican government,” Alexander Hamilton wrote in the Federalist No. 22, “requires that the sense of the majority should prevail.”
James Madison, who is often cited for his warnings about the threats of popular majorities, changed his tune after spending several decades watching the American system of government he designed play out in practice. “No government of human device and human administration can be perfect,” Madison wrote in 1834. But republican government is “the best of all governments, because the least imperfect,” and “the vital principle of republican government is … the will of the majority.”
Thomas Jefferson, in his first Inaugural Address, said the “sacred principle” is that “the will of the majority is in all cases to prevail.” In the same breath he emphasized that political minorities also have rights that require protection. Those protections exist in the design of our government and in the guarantees of the Constitution, as applied by the courts. The point is that minorities can be protected at the same time that majorities elect leaders to represent us in the first place.
Joe Biden will be the next president because he won the Electoral College. But he should really have the job because he won the most votes.
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