How Gerrymandering (Seriously!) Makes the House-Decides Path Even Worse for Democracy
For the past four years, I have noticed a worrying pattern of Democrats and journalists uncritically accepting the false narrative that Donald Trump could be installed in office through a special House vote, so long as he can push his opponent's electoral vote count below 270 via baseless challenges to their slates of electors. The Trumpian position -- which, again, some very smart people have accepted as a given -- is that a candidate must receive a majority of the total number of electoral votes that could have been cast, not a majority of the number that actually are cast. That is not, however, what the Constitution says.
In response to this potentially disastrous concession by non-Trumpists, I have written two pieces with Professors Dorf and Tribe (one in 2020 and the other earlier this week) explaining that the relevant constitutional text in the Twelfth Amendment simply and clearly does not say what Republicans want it to say. What we now call the "House-decides error" could in fact turn a legitimate win for Harris into an illegitimate one for Trump. And to repeat myself yet again, too many Democrats are failing to challenge that narrative.
Of course, nothing will stop the Republicans from trying to go down that path if they feel the need to do so. In a column on Verdict to be published soon, I will walk through the contours of the constitutional crisis that would result from a showdown over the House-decides error. Here, however, I want to explain a particularly noxious part of the Constitution's flouting of democracy, picking up on what I wrote in a solo Verdict piece two days ago.
As a reminder, if the Twelfth Amendment's contingency were properly triggered -- which, again, it will not be in the upcoming scrum between Election Day and Inauguration Day -- the House is to convene immediately to vote on who will be President. The voting system, however, is very unusual. I saw recently that one of the drafters of the provision was inspired by a procedure that had been used in the Holy Roman Empire, which is somehow fitting, but in any case each state would have one vote in this special election, where "a majority of all the states shall be necessary to a choice."
As an aside, note that this is yet another constitutional provision -- in the relevant amendment itself -- in which the text specifies "all" to distinguish from, say, "of the states that cast a vote." So when the amendment specifies that the winner in the first instance is determined by a majority of the electors "appointed," it is even clearer that 270 is not the magic majority number. The House-decides error truly is an error. But I digress.
It is important to emphasize just how much of an affront to anything resembling democracy even the "legitimate" House-decides rule is. As I wrote in my Verdict column this week:
[T]he pro-Trump argument would be that we must use the incorrect version of an inexplicable and obtuse constitutional provision rather than the version that was in fact written into the Constitution. To make matters worse, the incorrect version that they might prefer is less small-d democratic than the correct version, which is itself even less small-d democratic than the Electoral College, which of course is utterly small-d un-democratic in the first place.
A subset of the American right likes to scold people by saying that this is "a republic, not a democracy," as if that were somehow a deep insight. The founding document is clearly built on democracy as the baseline, with deviations from majority rule included for various reasons. The Constitution specifies when, for example, super-majorities rather than simple majorities are required. It also categorically rules out some democratic outcomes, such as barring even the most popular foreign-born person from serving as President.
In the Verdict column cited above, I referred to the Electoral College as "an obtuse constitutional provision," referring of course to the founders' creation of a slavery-protecting un-democratic procedure to frustrate majority rule in choosing a President. Even that obtuse contrivance, however, is built on the notion of majority rule, with the key anti-democracy aspect being embodied in the loaded question: "Majority of what?" Majority of the whole population? Of the native-born and naturalized population? Of that population above a certain age? Of that population but only of certain races and ethnicities? Of such populations' males only? Or of a group of electors who can be (but are not required to be) selected by popular vote?
Fatefully, the founders went with all of that, only some of which has been fixed over time. But yeah, the "republic, not democracy" guys are right that the Constitution is not rule by wide-open plebiscite. Good catch, bros! There are rules that are clearly larger moves away from having our leaders determined by anything resembling a majority vote, and the Electoral College is one of the biggest and most consequential.
It is not, however, by any means the only one. One of the reasons the Electoral College skews democratic outcomes so badly is that it is built on the anti-democratic US Senate's two-seats-per-state rule. Indeed, the Senate is an institution that was even more undemocratic in its original form, but the Seventeenth Amendment was enacted to require that senators from each state be "elected by the people thereof," making at least that part of the system more democratic.
But the Senate's undemocratic structure is interesting for another reason in this context. Last week, I spoke at a faculty seminar at University College Dublin, where the assembled participants were all Europeans of various backgrounds who knew quite a bit about the US political system (as is common in most places around the world that I have visited). When I explained the strange one-vote-per-state rule in the Twelfth Amendment, I said: "As most of you know, the Senate is set up with two votes per state, no matter the population, so this Twelfth Amendment rule tracks that crazy rule."
That was true as far as it goes, but the story is in fact even worse than that in the Twelfth Amendment context than in the Senate itself. Although it is becoming less common, it is not at all unusual for red states to elect Democratic senators (Jon Tester and Sherrod Brown both being in tight races for reelection right now, and even Ted Cruz is not a sure thing in Texas) and for blue states to elect Republicans (Susan Collins being a particularly frustrating example, and with Maryland flirting with electing Larry Hogan).
This is possible because Senators run statewide races, and just as red states sometimes surprise us with ballot initiatives protecting abortion rights or increasing minimum wages, there are times when a state's voters are not fully and predictably partisan. None of that matters for the Twelfth Amendment's special House vote, however, because that vote is not determined by a statewide election but with "the representation [in the House] from each state having one vote." That is very different.
Take the swing state of Wisconsin, which currently has one Democratic US Senator and one Republican US Senator. It is also razor-thin as a presidential battleground. Similarly, North Carolina has two Republican US Senators but elected a Democratic governor in a statewide election. Are either of those states "in play" when it comes to tipping their House caucuses from a Republican to a Democratic majority? Of course not.
Wisconsin -- the purplest of purple states -- has a 6-to-2 Republican advantage in its US House caucus, and although that state's infamous gerrymandering has been paired back a bit recently, exactly one of the Republican seats there is currently considered even close enough to be only "leaning Republican." In North Carolina, the current 7-7 split has been re-gerrymandered to the point where the Democrats will be left with at most five seats after next month's voting.
In other words, the House-decides path is not based on a process that in any meaningful way truly represents each state's voters in choosing the President. Trump and the Republicans want to strong-arm the choice into the House under the Holy Roman Empire voting rule because they have successfully gerrymandered enough states (first at the level of state legislatures, which then allows them to draw maps for the US House) to all but guarantee 26 votes for Trump. (If no candidate has at least 26 votes, it becomes especially weird, but that is not relevant here.)
It is not, therefore, even a matter of pointing out that there are many low-population states that are reliably Republican and that a one-vote-per-state rule is inherently undemocratic. Even the states that are not truly majority-Republican would be Trump votes in the Twelfth Amendment's House vote (which, again, should not even happen in the scenario that I am describing).
In the end, here are the degrees of separation from even the hint of "rule by the people" that Republicans support, some of which are written into the Constitution (but could and should be changed) while others are the worst kind of hardball politics:
- Remove as many voters as possible from the rolls;
- Prevent as many registered voters as possible from voting;
- Ignore the popular vote;
- If Trump's minions can knock Harris below 270 votes, ignore majority rule in the Electoral College; and
- Elect Trump with House caucuses that do not reflect states' voters' preferences.
It is bad enough that the Electoral College exists at all. Amazingly, what Trump and the Republicans would do is even worse.