winner-take-all – Sheila Kennedy

Common Sense Democracy

One of the most frustrating aspects of America’s current political dialogue (if our screaming fits can even be dignified by the term “dialogue”) is the importance attributed to various individuals–looney-tunes and statesmanlike figures alike. It makes me want to amend that famous James Carville adage–“It’s the Economy, Stupid”–with a more accurate one: it’s the system, stupid.

Call. it the “but for” problem.

But for systemic flaws like gerrymandering, Americans would be highly unlikely to elect posturing fools like Jim Jordans and Margery Taylor Green. But for the Electoral College, Donald Trump would never have occupied the Oval Office. But for our current “winner take all” system, we could send many more sane, competent people to Congress.

In a recent article for Time Magazine, two prominent political scientists pointed out that these systemic flaws are fixable.

America’s sharp division isn’t just about policy disagreements or ideology. Much of it comes down to the science of how Congress is elected. Winner-take-all elections have produced a fully-sorted two-party system in America that pits two sides against each other, incentivizes performative conflict, and punishes compromise. With the existing electoral and party system, we may as well invest all our money into a colony on Mars as hope for a bipartisan coalition leading Congress right now.

The silver lining is that America is not stuck with this broken system. Preserving the failing status quo is a choice. Winner-take-all elections are nowhere in the Constitution, and Congress has the power to change them. Multi-party coalitions work well in many other countries, and they can work in America, too, if we are willing to confront the root causes of Congress’s brokenness.

One of those root causes is America’s system of winner-take-all elections.

Winner take all elections do not result in anything remotely like accurate representation. As the authors point out, all five of Oklahoma’s representatives are Republicans, even though about a third of Oklahoma voters consistently vote for Democrats, and all nine of Massachusetts’ representatives are Democrats, even though about a third of Massachusetts voters are consistent Republicans. But because the minority party doesn’t make up a majority of any one district, they are deprived of any voice in Congress.

That means that primary elections in these states effectively determine the general election outcome, making it easy to win for extreme candidates, harder for moderates, and impossible for anyone in the minority party.

This is one reason why the overwhelming majority of the world’s democratic countries use proportional representation for their elections, where districts elect multiple representatives to Congress in proportion to their party’s share of the vote. In America, it would allow more voters to have a say in who represents them; if a party wins 40% of the vote, it would get about 40% of the seats. Oklahoma liberals and Massachusetts conservatives would have a voice. That would mean more moderates in Congress. Members of the far right and far left would be elected, too – but in accurate proportion to their amount of support.

Proportional representation would also alter the incentive structure for representatives. Reflexive opposition to the “enemy” would no longer be the way to win elections, because voters would have more than a choice between the lesser of two evils. This would allow more ways to form a coalition in Congress capable of compromising and governing with a lot less infighting and chaos. This is one reason why last year, more than 200 political scientists, historians, and legal experts signed an open letter to Congress calling for the adoption of proportional representation.

There is much to love about Americans’ fixation on individualism and personal responsibility, but it is an emphasis that far too often masks important realities. For example, people are rarely poor because they are lazy and unwilling to work–far more often, they can’t work because they are disabled, or because the factory closed, or because the economy tanked. Congress isn’t dysfunctional just because the GOP base prefers angry buffoons –it’s our unrepresentative and obsolete electoral systems that give legislative terrorists the ability to bring the operation of government to a screeching halt.

In our winner take all system, a candidate who wins 49.9% of the vote loses to the one who garners 50.1%–and the people who voted for that losing candidate are 100% unrepresented. Then we wonder why the people who won election feel free to ignore the needs and desires of that 49.9%. After a few election cycles, we wonder why so many voters who find themselves consistently in that losing 49.9% stop voting and participating.

It’s the system, stupid. We need to fix it.

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Majority Rule And The Electoral College

I recently participated in a really interesting and informative conference at Loyola Law School in Chicago. (I posted my presentation on Sunday.)The conference title was Democracy in America. Although the subtitle was “The Promise and the Perils,” most presentations were pretty tightly focused on the perils.

Identification of those perils centered mostly on the “usual suspects”: gerrymandering, the Electoral College, vote suppression…But thanks to the participation of some really first-class legal scholars, the discussion had some interesting twists.

The law professors and political scientists who discussed the Electoral College were in agreement that a constitutional amendment eliminating it simply won’t happen; they were equally negative on the likelihood of red states ever joining the Popular Vote Pact (and noted that it might not be able to survive a constitutional challenge).

Obviously, the Electoral College as it exists today is dramatically different from the mechanism as it was originally conceived and even as it was later amended.

According to law professor Edward Foley, who has a book coming out on the subject later this year, the changes made to the College by the Twelfth Amendment in 1804 rested on the assumption that the candidate who won a majority of the popular vote would be elected. Those who crafted the Amendment failed to foresee the emergence of third party candidates whose presence on the ballot often means that the winner of a given state doesn’t win a majority, but a plurality of the vote.

Foley favors a rule that would award electoral votes only to candidates who receive a majority of the votes in that state. (He didn’t say how the votes of that state would be apportioned in cases where the winning candidate didn’t meet that standard—but there are a number of possibilities.)

Ranked-choice voting would eliminate the problem.

Even more intriguing, there is evidently a lawsuit pending that challenges “winner take all” allocations of state electoral votes. Winner take all (which is in effect in all but two states) awards all of a state’s electoral votes to whoever wins, by whatever margin. It’s why Democratic votes for President don’t count in Indiana and Republican votes don’t count in New York—even if the margin is incredibly thin, the candidate who comes out on top gets all the electoral votes. If the votes were apportioned instead—if a winner of 51% of the popular vote got 51% of the electoral vote, and the candidate who got 49% got 49%, it wouldn’t just be fairer. It would encourage voters who supported the “other” party in reliably red or blue states to vote, because–suddenly– that vote would count.

Last February, a coalition of law firms led by the League of United Latin American Citizens (LULAC), and David Boies of Boies Schiller Flexner LLP, filed four landmark lawsuits challenging winner-take-all. According to the press release,

By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.

The suit was filed in four states–two red, two blue. Two have dismissed the complaint (the California dismissal has been appealed to the 9thCircuit), but it is still “alive” in two others.

States have the authority to allocate their electoral votes as they see fit, but if some states allocated and others did not, the results would be even less likely to result in the election of the person who actually won the most votes nationally. This case—if successful—would require all states to allocate their electoral votes.

It would help.

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Design Defect?

In the short time it has existed, Vox has proved to be one of the smartest sources on the internet; its “explains the news” feature, credible reporting and excellent writing have made it a “must go to” for many of us.

Recently, the site had a political science meditation by Lee Drutman, titled “Yes, the Republican Party has become pathological. But why?”

The article began by quoting an often-cited paragraph from Mann and Ornstein:

In Thomas E. Mann and Norman J. Ornstein’s now-classic and still-true description of the party, “The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.”

Drutman doesn’t quarrel with this observation, but says that the pressing question is why did the GOP go insane? And unlike those who pin the problem on flawed leadership, or the Christian Right, or even the racism that has become embarrassingly obvious, he argues that the opportunities and incentives that are built into the system are “design defects,” that have caused the astonishing dysfunction we now see.

My argument is that the modern Republican Party is a direct result of the design flaws of the American political system — our winner-take-all single-member electoral districts, our reliance on private money to finance elections, and our increasingly presidentialist system of government. You simply can’t understand the GOP’s pathologies without understanding the larger political system in which it operates.

Drutman’s argument begins with America’s two-party system. When voters are given only two choices, the key to victory is being less unappealing than those other guys. “Such is the twisted logic of negative partisanship.”

Drutman dismisses the widespread belief that American politics are ideological; that may be true for the so-called “elites” who are perhaps 10-15% of the voting public, but it doesn’t hold true for the average voter. Instead, voters look to their political parties to decide what policies they embrace, and they choose their party affiliation by deciding which “tribe,” is composed of people “most like me.”

At heart, when we vote, we ask the question: “Who represents people like me?” We support candidates who we think share our values. And here, party is a very strong cue…

Certainly we shouldn’t overstate the level of blind partisanship. But one of the most remarkable and consistent political science findings is how little voters really think for themselves. This is why many previously moderate Republicans didn’t leave the party as it moved rightward — they just became less moderate. Their ideology was far more flexible than their partisanship, because it was less deeply rooted.

All well and good–but if it is the system that has produced today’s cult-like GOP, why haven’t the Democrats similarly gone off the rails? Drutman quotes Jonathan Chait:

The] Democratic Party is racially and economically heterogeneous. Even if he had wanted to take vengeance upon white America for its sins, Obama had far too many white supporters to make such a course of action remotely practical. (A majority of Obama’s voters were white, in fact.) On economic issues, the Democratic Party relies on support and input from business and labor alike.

… There is little such balance to be found in the Republican Party. Republicans concerned about their party’s future may blanch at Trump’s pardoning of the sadistic racist Joe Arpaio or his gleeful unleashing of law enforcement. In the short term, however, they have bottomed out on their minority support and proven able to win national power regardless, by using racial wedge issues to pry away blue-collar whites.

But what about Drutman’s assertion that America’s political design has incentivized the GOP’s troubling behaviors?

One factor is that the past three decades have been a very unusual period in American politics, in which national elections have all been quite competitive, with the balance of partisan control of institutions hanging in the balance. Because American institutions are majoritarian, and because the president has considerable power, a small number of votes can mean the balance between two very different outcomes. When the stakes are this high, the political incentives push hard on gaining every little advantage.

Drutman points to gerrymandering and the single-member plurality-winner district design feature that makes gerrymandering possible. And at the end of his essay, he comes back to the (considerable) drawbacks of a two-party system.

It’s long, but the entire thing is well worth reading.

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