Legitimacy and the So-Called House Popular Vote

The “House Popular Vote” is not really a thing, only it is kind of a thing. And there are those, particularly those who wish to defend the status quo, who react with some heat when the concept is mentioned. By “House Popular Vote” I mean the aggregate number of votes cast for all 435 seats in the House of Representatives, sorted by party.

This number isn’t directly used for anything, so it turns out to not be a number a lot of news outlets offer. As of the time I write this article, though, the New York Times has it, and here’s what we see:

That number may change as late ballots are counted and some races go through recounts and so on. But it’s good enough for my purposes right now. What I’m interested in is a question of legitimacy: does the partisan composition of the House of Representatives as a whole roughly match the vote of the American people as a whole? Whether we like the mixed results of last night’s election or not, did the system demonstrate small-d democratic trustworthiness?

An important test of this question is if the margin of control resulting from the election is roughly the same as the proportional split of votes cast. If so, democracy appears to be working.

A lot of folks no doubt read the forecasting for the House election on fivethirtyeight.com as often as I did, in part because it gave a fairly quick understanding of the big picture of where things were headed and in part because the forecasting model that site employed has proven consistently less wrong than other forecasting models. But, I wonder how many people looked at the graphic that came at the bottom of that forecasting page?

What this chart told me — still tells me, in fact — is that the net House election result is an inefficient, imperfect reflection of the overall vote of the people as a whole. To the degree that the actual seating of the House is out of proportion with the proportion of votes distributed for the parties, there is a proportional degree of concern that the system of government is not legitimate and therefore unworthy of respect. The chart shows a trend line going from upper left to lower right, with the upper left showing larger Democratic majorities in the House correlating with larger Democratic vote percentages in aggregate (or average, if you prefer) popular vote counts. In a proportional parliamentary system, the trendline necessarily runs through the centerpoint.

Notice how it was possible for Democrats to get significant popular vote majorities but still not have a majority of seats? That’s inefficiency. And too much inefficiency calls illegitimacy into question. A perfectly legitimate trend line would go exactly through the centerpoint of an even vote producing an even split of control in the representative body. The shift of that trendline which on this chart is illustrated downward represents the direction of the potential inefficiency.

But: as of this morning, a total 50,814,980 votes for Democratic Party candidates are on record for the House, compared to 46,893,830 votes for Republican Party candidates for the house. Now, the Times reports the percentage of overall votes, but that’s not accurate for my purposes. Because it’s a first-past-the-post system in the U.S.A., we need to drop out the third parties and independents and compare only the two major party aggregate vote counts.

That gives us 97,708,810 votes total, or 52% Democratic votes and 48% Republican votes. A perfectly efficient system would award 52% of the House seats to Democrats and 48% to Republicans, giving Democrats a 226-212 majority. The actual result, assuming that the still-too-close-to-call races all go to the current leaders, is going to work out to be pretty close to that. Which is pretty amazing to me: the result is actually quite efficient, obviously within tolerable limits.

So there’s no problem, right? The system is legitimate, efficient, and working as intended, isn’t it?

Hang on a second.

It’s true that this House election is not evidence that our Federalized, districted, first-past-the-post system to elect legislators to the lower house of Congress is, at a high level, fundamentally flawed. Notwithstanding all of the things we might call noise, interference, inefficiency, or illegitimating factors, things like gerrymandering, voter obstruction, dirty tricks, or public lies. These things are all out there, but nevertheless we’ve happened to land pretty close to a House that approximately reflects the degree to which Democrats were favored, overall, over Republicans. That’s the good news: it looks like, at his level, democracy is in full effect.

But the House approximating the popular will is only a part of the system. The overall system is much more complex than that. And the overall system is not wholly small-d democratic, as I notice lot of capital-R Republicans have been hastening to point out over the past few weeks.

The Senate, very much by design, is not nearly so directly responsive to the expression of popular will as the House. We all know the structural differences between the House and the Senate. All the states have equal representation in the Senate, as a result of the Connecticut Compromise in 1787 preserving that feature of the Articles of Confederation. State borders are very inflexible over time – I can think of only one time in American history that a state’s border has changed, when West Virginia broke off from Virginia in the Civil War. That makes states impossible to gerrymander, and it also makes states impossible to apportion for population precisely because population differences between the states are irrelevant to the Senate. The Senate’s elections are staggered and Senators serve longer terms.

As a result, the composition of the Senate is a trailing and inefficient indicator of the popular will. Indeed, until 1920 ¹ not all Senators were even elected by popular vote. Most of us will recall arguments in the Federalist Papers that the Senate was intended to be the “cooling saucer” for the hot tea of the popular “passions” thought likely to be abrew in the House: it was always supposed to be a more elite, deliberative, small-c conservative part of Congress’ operations. A brake on change.

It’s easy for me as a relatively new partisan convert to be frustrated at this. But the truth of the matter is I’m really not massively frustrated so much that Republicans wound up not only keeping control of the Senate but actually gaining seats, in any given cycle. I can be sanguine that it’s a state-by-state process, driven heavily by personalities of the individual candidates and by various political pressure points. Heidi Heitkamp, for instance, did herself no favors in North Dakota by voting against the confirmation of Brett Kavanaugh to the Supreme Court, which has at its root the concerns that a majority of North Dakotans have about abortion. While I don’t like that particular result, I also can’t call that particular result illegitimate. Therefore I can accept it. ²

Where I think we’re seeing a breakdown is not so much how we select our leaders. It’s how they’re using the power they get as a result of that process. I wrote in the elections livethread yesterday:

We can accept the occasional contramajoritarian result. We’ve had two plurality popular vote winners denied the Presidency in five cycles. We can see that Democrats are getting significantly more votes around the country but have actually lost ground in the Senate. If the system continues to return contramajoritarian results, there will continue to be strains on the legitimacy of the Constitutional system. It will eventually break if those tensions are not somehow addressed with something more meaningful than “It’s a republic and not a democracy, so ha ha we won.”

And the most trenchant response to this, I think, came from pillsy, and from Chip, who I hope will forgive me for amalgamating their statements:

…the reason for the counter-majoritarian mechanisms is, according to their defenders, to check lawless, corrupt, and demagogic impulses.

*   *   *   *   *

… The counter-majoritarian mechanisms reflected the founder’s belief that the rabble would be lawless and corrupt, and the elites like themselves would be the sober defenders of the rule of law.

As originally framed, no one was supposed to be more “elite” in the way Chip describes than the President. He was to be selected as the best person in the country by the best people in the country. The backstop against the depredations of a lawless, corrupt President was supposed to be impeachment, or at least the treat of it.

What we’ve got now is a combination of political realities that the Framers didn’t plan for, and it’s hard for me to say that they left things this way by design. We have a lawless, corrupt President who spouts outrageous lies to the American people on a daily basis, offers evidence in his behavior and diplomatic deeds suggesting that he is in cahoots with foreign powers for monetary gain, and sees his route to power as predicated upon stimulating the morally worst impulses imaginable in a polarized electorate. Donald Trump is the sort of person Congress is supposed to remove from power.

The elites of the Senate, who were supposed to be the sober, principled, high-minded, well-educated, moral, and wise guardians of the Republic, have instead come to regard the President as a Useful Idiot who they prefer in place despite all of his misbehaviors. They fear that removing Trump from office would weaken their own ability to govern (perhaps correctly) even with another Republican taking his place as President. Consequently, they are apologists for and debatably enablers of the very corruption, lawlessness, and cultural erosion against which they ought to be our guardians.

The results of the 2018 Senate elections — gains for the Republicans in the upper house of Congress — will at best do nothing to remedy this. More likely, the enabling will be aggravated.

Democrats are now in control of the House. It is plausible that they will use their majority there to impeach President Trump. But the notion that an even-more-Republican-than-before Senate would convict him and remove him from office is risible. Readers will please note my deliberate omission from this paragraph any reference to the merits of the theoretical articles of impeachment, for I believe that they are, for practical purposes, irrelevant.

And, on top of all that, a Supreme Court which has also been packed with a majority bloc of Justices who are all the products of a strongly filtered political process and debatably were selected for political reliability on a now-broad constellation of issues. While I’m not hopeless that the Court will abdicate its duty in all cases to independently  address the legal merits of cases that come before it, I’m no longer confident that the majority will reliably be able to rise above partisan pressures, either. ³

There is simply no further backstop in the Constitution against a state of affairs in which neither the Senate nor the courts would check a lawless President. The Constitutional system is working as intended, to the extent there was intent in the first place. We’ve run out of safety net.

The Framers did not ever pretend to themselves that they’d created a perfect system. They intended that we, the heirs of their design, would periodically evaluate how the system was working and make necessary and wise changes. They would not have wanted us to treat their messy political compromises as holy writ, any more than they would have wanted us to have been led to a place of hyperpolarization by corrupted elites. We aren’t where they would want us to be at all — in thrall to a passionate faction of populists and left unguarded by elites themselves corrupted.

I’m not hugely optimistic that House Democrats are going to take on the President for reasons beyond partisan brawling, either — I’m looking ahead to government shutdowns as House and Senate refuse to compromise on budgets, the President throwing his weight around like a bull in a china shop during conciliation negotiations, and frenzied partisan yammering about the imminent collapse of the republic from all sorts of procedural improprieties, and what ought to be small-scale disputes.

That’s separate and apart from the very serious issues of the behaviors of the President and the adaptation of our laws to meet the very difficult challenges of our times: keeping our pension and medical payment systems functioning; keeping relative peace; falling less short of meeting our ideals for justice and fairness; and cleaning our poisoned environment to leave a world capable of prosperity for our children to inherit from us. Two years of one-party rule aimed strictly at catalyzing economic growth has not advanced us towards those inescapable challenges one damn bit. Heighten the partisan wrangling and accusations of lawlessness and bad faith to that? I’m not optimistic we can get the hard work done — and I’m not sure we’re capable, in that environment, of addressing how the system can be reformed to let us get that work done.

Fasten your seat belts, folks, it’s going to be a very rough ride. That’s how our system is designed.

1. The Seventeenth Amendment was ratified in 1913 and then it would have been three cycles of elections thereafter that all Senators had been directly elected.
2. Now, if we find out there was some sort of vote tampering going on that’s a different story. But there’s no evidence of that that I’m aware of, so I can accept the result of the vote as an accurate reflection of the popular will.
3. The Court in the 19th Century was, while not particularly partisan, also not a particularly strong check against abuses of power by the elites of the day, nor were the Presidents of the era particularly ambitious in their use of it compared to today.