Why does the American voting system favor Republicans?

Forty-nine days to go…

Last Tuesday, September 10, Vice President Harris and Former President Trump debated. Sixty-seven million Americans watched. In a flash poll taken right after the event, 63% of voters said Harris had the upper hand. Commented Peter Wehner of The Atlantic “I’ve never seen a candidate execute a debate strategy as well as Harris did.”  Even Trump supporter Senator Lindsay Graham said the debate was a “disaster” for Trump, who took Harris’s bait every time, and towards the end lost the focus he had had at the outset.

Doing well in the debate was a necessary hurdle for Vice President Harris, but she cannot be complacent and is wise to continue to call herself the underdog. The election is now in a statistical dead heat.

A curious aspect to American voting is that even if Vice President Harris were to win the popular vote on November 5, this does not guarantee her an election victory.  Hillary Clinton in 2016 and Al Gore in 2000, who both won the popular vote, demonstrated this.  To be assured of victory, a Democratic candidate needs to have a 3-4% popular vote lead over their opponent.

Why does the American voting system favor Republicans? 

A simple answer to this question is that Democrats tend to win by wide majorities in fewer districts, and Republicans tend to win by narrow majorities in a greater number of districts. In part this is because more Democrats live in densely populated cities on the two coasts, while more Republicans live in the more sparsely populated areas in the center of the country.

But there is more that can be said on this subject. It all goes back to the Electoral College, a body created by the US constitution in the late 18th century. Why do we have an Electoral College? The founding fathers were wary of giving a direct vote for the presidency to all voters, therefore they considered having Congress vote for the president (they had already decided that state legislatures would elect Senators, a practice that continued until the 17th Amendment was passed in 1912).  The problem with having members of Congress elect the President, the founding fathers realized, was that the President would be beholden to the members of Congress who had voted for him.  Therefore, it seemed better to select a special group of Electors who would vote for the President and then disband.  The constitution stipulated that state legislatures would figure out how to select these Electors. If the Electors ultimately failed to choose a candidate, the House of Representatives would vote, giving a single vote to each state.  A key point to notice in all of this is that the states were considered the most important unit in this process of decision-making.

Each state was assigned a number of Electors that equaled the sum of House members plus Senators they had.  House members were elected in proportion to population.  The Senate was composed of two members from each state.  Thus, the two additional Electoral votes that came from the two Senators had a greater proportional impact on small population states over large population states.  The upshot was that small population states – which were often Republican leaning – gained greater representation in the Electoral college.

Moreover, there are seven states whose population size allows them only one Member of the House of Representatives.  Those seven states could have a population significantly lower than the standard number of people represented by a Member of the House.  Since every state must have at least one representative, Members of the House of Representatives from these states represent fewer people than the members from other states. 

In both these ways, states with a small population are over-represented in Congress, and they are over-represented in the Electoral College.  And because such states cluster in the center of the country where Republicans predominate, Republicans are over-represented in Congress and in the Electoral college.

The Electoral College system evolved fairly quickly from its original form where state legislators chose the Electors, to an election by all voters where the electoral votes are distributed as a block to the winner of the popular vote in that state. (Only two states – Maine and Nebraska – have not opted to distribute their electors on a winner-takes-all basis.) For candidates, this system places great importance on winning a majority in strategic (i.e., large) states, where they will earn the allegiance of more Electors.  Thus, the majority vote of individual states is a more important determinant of the race than the separate votes of all members of the population.

Moreover, the system reduces the focus of the election to a few key “swing” states that have large populations where the outcome for the electoral college could tilt either way. These states are generally agreed to be Arizona, Nevada, North Carolina, Georgia, Wisconsin, Michigan, and Pennsylvania.

Two recent Supreme Court rulings have also changed the character of American elections in the twenty-first century, tilting the balance towards wealthy donors and Corporations and away from marginalized groups who have more difficulty in voting.

Citizens United v Federal Elections Commission ruled in 2010 that Corporations can spend unlimited money on elections, overturning 100 years of precedent that the government has a role in creating restrictions to prevent corruption.  The rationale for this decision was that limiting “independent political spending” from Corporations and other groups violates the First Amendment right to free speech.  The 2010 ruling concluded that Corporations’ “independent” political spending, i.e., not tied to a particular candidate’s campaign, did not threaten corruption. The assumptions that such donations would be corruption free and transparent have both proven to be false. The result has been massive political spending and disproportionate influence of wealthy donors, Corporations, and other special interest groups, adding to an impression that the political system belongs to the wealthy. This situation has, moreover, a racist bias, and reinforces a racially-based wealth gap.

Secondly, On June 25, 2013, the Supreme Court ruled with regard to one aspect of the 1965 Voting Rights Act. The 1965 Voting Rights Act used a “coverage formula” to single out jurisdictions that should be required to get preclearance for changes in their system of voting. The preclearance process was a way to ensure that changes to a system of voting was not discriminatory. The 1965 requirement was to be temporary, to expire in five years, and to be applicable only to certain states.  The requirement was then repeatedly extended by Congress, and in 1975 was extended to address voting discrimination against members of "language minority groups."  The 2013 ruling said it was no longer constitutional to use the “coverage formula” to decide which jurisdictions needed preclearance.

As a result of the 2013 Supreme Court ruling, jurisdictions with a past history of discriminatory voting practices are no longer subject to special supervision when they make changes to voting practices.  This has recently opened the way to many changes in voting rules that make it more difficult for those who have been traditionally marginalized to vote.

In the wake of Donald Trump’s claim that voter fraud prevented him from winning the 2020 election, we have seen a number of states tightening requirements to vote. Previously, signature matching was enough to assure the right to vote. Now a large number of states are requiring some ID, and twenty-one states are requiring photo IDs.

In Georgia, voters without driver’s licenses or state ID cards now must provide in their absentee ballot application a photocopy of another government-issued ID. This may be difficult to produce.  And Texas now rejects a request for a mail-in ballot if the applicant produces a different ID than the one they provided when registering to vote.

These tighter controls, Democrats argue, have more impact on Democrats than on Republicans, because Democrats are more likely to lack driver’s licenses, and have more difficulties in getting to the polls.

Next week we will explore other actions state legislatures have taken recently to increase their power in deciding the outcome of an election.