Against the Will of the People
We don't have a Constitution problem. We have an elections system problem.
As the United States reels under an unrelenting assault from the great epidemics of our time—mass slaughters in our schools and stores and synagogues, raging fires, deadly disease—the government we ourselves have chosen and empowered too often seems utterly incapable of forging an effective response. Polls show increasing numbers of young Americans question the importance or desirability of democracy, while many older Americans who profess a belief in democracy are quick to embrace strongmen who claim that they alone can fix whatever problems they see—inadequate immigration controls, street crime, or cultural evolution.
How have we gotten to the point where our elected representatives are failing to address the country’s most urgent needs? At one level it seems simple: we have divided ourselves as a people—old versus young, White versus non-White, urban versus rural, secular versus religious—and with the stakes so high, consensus is deemed impossible and compromise considered treason. But there is more unity in America than is generally recognized. A majority of Americans favor permitting abortion in some instances; greater regulation of firearms; steps to limit the effects of climate disruption.
A recent Vox article carried this subhead: “Politicians diverge from voters when it comes to preventing gun deaths.” A Boston Globe article by Harvard professor Robert Putnam was headlined, “On abortion and gun control, it’s the politicians who are polarized.” Name a hot-button topic and it’s as though most of America’s citizens and the people who make their laws live on different planets. This should not be puzzling. After all, what you build is what you get.
If the United States is a democracy—government by the people—why do the people we’ve elected so often fail to respond to what most of us seem to want? Where’s the glitch? Given the areas of overlap between the views of most Americans, the government should be performing far better than it is. The problem is not in the constitutional scheme—a rules-and-institution-based republic paired with an electoral democracy meant to ensure citizens would be in the driver’s seat, selecting and directing those responsible for managing the collective enterprise. The source of the trouble is our elections. Over the years, activists and self-styled reformers gradually changed the processes by which we elect our public officials. Step by step, “the will of the majority” was first eroded and then eliminated as a serious factor in the selection of our representatives. This article is about a massive failure of systems engineering, a web of interlocking and mutually reinforcing election laws, rules, and procedures willfully designed, top to bottom, to undermine the public will.
In understanding any system, it’s important to begin with understanding the basic principle guiding the effort and the purpose behind each part of the project. The principle at stake here is self-government—representatives selected by and answerable to the people—and the purpose of elections is to select the public officials best suited to the task of governing. The Framers of the Constitution intended that public officials would receive limited and temporary grants of authority from the people themselves and would need the approval of those same citizens to retain their positions. It is this feature—ballot-box control of public decision-making—that entitles the United States to claim a seat among the world’s democracies.
Why then do the people we’ve chosen routinely disregard even the most strongly supported preferences of those voters who control their electoral fate? Why doesn’t the instinct for political survival more often kick in and impel our “representatives” to respond to what the majority of voters want, if for no other reason than to save their own careers? If that’s how democracies are supposed to work, are we really a democracy?
The answer is “sorta.” We have the outward trappings of democracy—we have candidates, elections, electeds—but that’s about it. At least since the beginning of the progressive movement in the early 1900s, our political system has increasingly restricted citizens’ options at the ballot box and incentivized candidates to cater to the preferences of political outliers. In recent years there has emerged a growing cottage industry of reformers, all convinced that they have identified the problem at the heart of our stultifying political polarization, who have invested great energy and resources in schemes to end single-member congressional districts, increase the number of competing political parties, change how political campaigns are financed, even rig the way we count the votes to produce “more acceptable” winners. But there is no single answer to the problem of government officials turning their backs on the preferences of the communities from which they received their grants of authority.
My purpose in this article is to disentangle and examine separately the interlocking elements of our electoral system in order to illustrate how the essential character of our democracy—representatives elected by a majority—has been undermined, and how it can be resurrected only through a determined remaking of our entire electoral system, changing the pieces, the power structure, the incentives. The failure to see this—both the danger and the necessity—is a form of ocular dysfunction: an inability to see the elephant—or herds of elephants—in the room. It’s like standing outside in a rainstorm and wondering why the streets are wet. In this article I hope to put a spotlight on the elephants and reveal the source of the raindrops. This will require no great insights, no metaphysical magic; I will merely turn on the lights.
Principle and Purpose
The underlying principle of democracy is self-government, a system in which the government is responsive to the citizen and the people collectively are government’s boss, not the other way around. The purpose of elections is, first, to effectuate that principle, to ensure citizens choose their representatives. But elections have higher purposes than mere reassurance; ideally, they will both provide guidance as to what the majority of citizens want their government to do and elevate to public office those citizens who are best suited to govern wisely, competently, and bearing voter preferences in mind. Whether our system accomplishes both of these purposes is the question to keep in mind as we reveal the process by which we now select our legislators and public executives.
E.E. Schattschneider, a noted political scientist of his time, wrote eighty years ago that democracy was unthinkable without political parties. That is both true and untrue. What is necessary for democracy to function is the existence of avenues for meaningful dissent. For some time, parties were the principal means available to channel and magnify dissent to make it politically meaningful. As we have learned with the advance of technology, they are no longer the only such means.
Political parties are neither bad in and of themselves nor solely to blame for the breakdown of the self-governance principle in American government. But as part of an interactive web of systems, they throw responsiveness to the public will out of kilter and contribute to the problem they were intended to remedy. A system designed to empower dissent today effectively limits dissent, channeling the voter’s range of options into menu A or menu B. Parties do not exist to find common ground or forge compromise; they exist to achieve their political and ideological goals by exploiting differences. They are at the heart of that web, that confluence, that has destroyed the connection between the electors and the elected. Political parties generally strengthen democracy; but when they exert outsized control over our elections by keeping candidates off the ballot and thereby limit voter choices, they destroy democracy.
There is an argument convincingly made, and one I accept as rational and persuasive, that it is the members of a club who should decide what the club stands for and, in terms of an election, which candidate the members of that club will support. One cannot imagine Methodists, Buddhists, and Muslims being invited to determine the theological stances of the Roman Catholic Church, and political parties are, in today’s America, de facto secular churches.
On its surface, party primaries in which only members of the club can participate seem reasonable enough. Even resistance to semi-closed primaries, in which citizens may choose on election day to vote in the primary election of a party they had not previously joined, does not seem unreasonable for precisely the same reason. But what is “fair” or “right” often depends on context, and when party nominations become the only path for determining the entire field of candidates among whom voters may choose, what otherwise seems a matter of simple common sense becomes instead a distortion of democratic process.
In a nation in which there are now more registered Independents than either Republicans or Democrats, closed primaries create two sets of losers by closing off voters’ options and blocking opportunities for those who aspire to public office but who do not subscribe to the menu of policy positions of either Party A or Party B. In some states this process of constricting options may even extend to limiting which of a party’s candidates will be allowed to appear on a primary ballot. In Massachusetts, for example, before a candidate can run in a party primary, he or she must first receive a required number of votes at a convention composed solely of party activists. This year, there were 1,194 total votes cast by the activists attending the Massachusetts Republican Party’s nominating convention. Those 1,194 people controlled which Republicans would be allowed to compete in their own party’s primary in a state of nearly seven million people and in which five of the past six governors have been Republicans.
Mike Lee, a member of the United States Senate from Utah, holds the considerable power over American public policy that accrues to any member of that important assembly. In Utah, small numbers of party activists decide whom the state’s voters will be allowed to consider for elected office. The principal candidates in 2010 were Lee, Tim Bridgewater, and longtime incumbent Senator Bob Bennett, who had fallen out of favor with Tea Party-aligned party insiders.
Bennett was eliminated on a third ballot and Lee and Bridgewater advanced to the party primary. The two combined had received just 3,237 votes, but those 3,237 activists were able to deprive Utah voters of considering whether they would prefer to re-elect Bennett. Bridgewater lost to Lee in the primary by fewer than 5,000 votes in an election in which fewer than 99,000 votes were cast in a state of 2.8 million people.
The idea that “in a democracy, the majority rules” has a nice ring to it. Within the constitutional constraints designed to protect against majority infringement of minority rights, the recognition that the majority will prevail seems fair, reasonable, and reassuring. But in America, the majority will is revealed in polls, not in elections.
There is a term favored by political scientists—“first past the post”—to describe a system that chooses only one winner per election. But in truth, in most elections in the United States, there is no such thing as first past the post because no candidate is required to reach the “post” (home plate, goal line, tape); instead one wins by coming closer to the post than anyone else. I first understood the significance of this fact when I read about the election history of the current senior United States Senator from Massachusetts, Ed Markey.
I have always held Senator Markey in high esteem. Our congressional careers began in parallel, each of us elected to the House of Representatives in 1976 and assigned to the same committees. I later discovered that while I had won by receiving a majority of the votes cast in my own primary, thus avoiding a runoff election that I might well have lost, Markey had won his race with just 22 percent of the vote in his primary: Fully 78 percent of his own party’s voters had preferred someone else, but since none of Markey’s rivals had won as many votes as he had, he “won” and, in a congressional district in which his party has been heavily favored, has gone on to a long and successful Washington career.
Indiana Senator Mike Braun became the Republican candidate in 2018 in a Republican-leaning state by winning just 41 percent of the Republican primary vote (that is, 59 percent of his own party’s voters preferred someone else). The list is long—in both houses of Congress, in governors’ offices, in state legislative seats—of power falling into the hands of people never chosen by a majority of the people whom they were thereafter to represent. Of the fifty states, fewer than ten provide runoff or second-round primary elections to determine whom the voters would select if they could choose between the top two finishers in a head-to-head face-off uncluttered by also-rans.
In a small number of states—most notably California, which has open primaries in which all candidates run on the same ballot—candidates are required to win a majority of the votes cast in order to gain public office. It’s the case in the city of Boston, where all aspiring candidates for mayor run on a single ballot in a preliminary election and if nobody receives more than 50 percent of the votes cast, the two highest vote-getters compete in a final election. It’s even the case in France, where the concept of a preliminary election followed by a final and determinative election is apparently not too difficult for voters to understand. Even in states with separate party primaries, as in my own home state of Oklahoma, voters expect that primary winners to have to go on to receive a majority of votes cast.
Resistance to a second round of voting is sometimes justified on the grounds that significantly fewer voters show up at the polls the second time around. To the extent that this is true, it is largely a matter of vocabulary and expectation. Runoff is something that happens when rain overflows the gutters on one’s roof; preliminary and final elections make the stakes clear. But it’s also not necessarily true that when voters are explained the preliminary-final distinction, vote totals drop. When Kamala Harris won her U.S. Senate seat, total vote turnout in the second-round election was higher than in the first. When Michelle Wu became the first Asian-American elected mayor of Boston, turnout in the second-round election was essentially the same as in the first round, as was the case when Eric Adams won his second-round race to become the second Black mayor of New York City.
Some oppose holding a second round of voting on the grounds that elections cost money and two rounds cost more than one. That is good arithmetic and bad policy. The winners of elections decide tax rates, funding for schools and hospitals, and, in the case of congressional elections, whether or not to send young Americans to war. Certainly it’s worth the cost to see one’s final choices side by side, hear them without the static of a multi-candidate race, and make an informed decision about whom to entrust with the power attendant to public office.
This goes back to the basic principle of a constitutional republic—the people select their representatives—and the basic purpose of elections, to determine who the majority believes is best suited for the task. There are no guarantees that the best man or woman will win even with the requirement of a majority, but the odds are better than if we continue to empower those whom a majority did not choose. Since fewer than ten states currently hold runoff or second-round majority-requiring elections, in most cases we have no idea whom the majority of voters would have chosen if they had the choice. If the majority doesn’t decide, why would a rational elected official base his or her decisions in office on the majority’s preferences, rather than on the preferences of the partisan base that actually determines future failure or success?
Sore Loser Laws
If democracy is about the wishes of the voters rather than the preferences of a political club, why don’t the losers of party primaries—that is, candidates who did not win the endorsement of their party activists—simply go on to take their case to the larger base of voters in a general election? In the 2018 Utah congressional elections won by Lee, since Bennett had already been handily elected statewide three times and Bridgewater had won at the party convention and narrowly lost in the primary, why didn’t one or both—either of whom might have been the first choice of the broader electorate of Utah voters—run in the general election? Because under Utah’s election laws they weren’t allowed to; the final say about voters’ choices was the party’s.
In Massachusetts, the current governor is a man named Charlie Baker. Governor Baker is a Republican and, paradoxically in a state generally considered solidly Democratic, the state’s most popular government official. After two terms, he has opted not to run for re-election, but it is tempting to consider what might happen if he had chosen instead to run for a third term.
First, Baker would have to navigate a Republican convention where he would likely fail to get the support necessary to win a spot on the primary ballot, considering that the party’s leadership and its most active Tea Party-aligned members (who tend to dominate party primaries) have repeatedly condemned him for his moderate views. If he did manage to eke out enough support to make it to the primary ballot, it’s likely he would lose there, since he is out of step with the voters most likely to participate in a Republican primary. In the past, Democrats have crossed party lines to vote for him, but they would be less likely to do so again given that they have their own strong field of popular candidates this time. Baker could simply shrug off a primary defeat and run in the general election, but in Massachusetts that’s not allowed.
In Utah and Massachusetts—as in forty-six states—“sore loser laws” prevent a candidate who loses in a party primary—even if by only a slim margin to a winner who receives less than a majority of the primary vote—from running in the general election. Some states even prohibit independent candidacies; candidates who don’t receive a party’s blessing are not eligible to take their case to the voters. These are two of the clearest examples of an election system that limits voter choices, prioritizes party interests over the country’s interests, and undermines the basic democratic principle of representative government, that voters can choose the candidate they want speaking for them in the making of the laws.
What are the real-world effects of sore loser laws? In 2012, a minor state official in Texas named Ted Cruz won the Republican primary for the United States Senate, defeating the incumbent lieutenant governor, David Dewhurst, who had been elected statewide four times. In a many-candidate race, Cruz finished first with just over 630,000 votes and defeated Dewhurst in a runoff. The population of Texas at that time was just over 26 million. In a general election, with all of Texas’s voters eligible to cast their ballots, would Cruz still have won? We’ll never know because Texas’s sore loser law kept Dewhurst from taking the campaign to the entire electorate.
Political scientists Barry Burden, Bradley Jones, and Michael Kay have written that sore loser laws explain about 10 percent of the ideological distance between the major political parties and expand our understanding of the cause of polarization.
We’ve now moved from a primary restricted to party voters to a lack of runoff elections and sore loser laws, each part of the process combining to restrict ever more the options available to voters as they attempt to select the man or woman they would want representing them in making important decisions that affect them greatly. Step by step, the voice of the citizen grows dimmer and the candidate’s dependence on a narrow activist base grows larger. It is this activist subset that ultimately determines who gets elected and upon whom incumbents must depend for re-election. Elected officials ignore or actively work against the wishes of a majority of voters, while the voice of the base—the activists upon whom election depends—is often heard all too well.
The language of the Constitution requires candidates for Congress—both the House of Representatives and the Senate—to be actual inhabitants of the state from which they are elected, a direct rejection of parliamentary government in which one represents not constituents but party. Every member of the House or Senate fulfills that requirement. But it’s important to consider why the Founders chose that requirement. To go back to our template, what were the principle and purposes the Founders had in mind?
Communities have commonalities. When governments make decisions that will affect those communities, the citizens therein should have a seat at the table. Today, in most states, the drawing of congressional and state legislative district lines falls to the state legislatures. The process is directed by whichever political party holds the majority of seats in the state House and Senate. The result is often a strange-looking electoral map that cuts across communities and creates districts based not on a community of shared interests but on fealty to the party in power. Constituency representativeness—a central tenet of an electoral democracy—is discarded in service to partisan ambition.
Oklahoma, the state I represented in Congress, is larger geographically than any state to the east of it; the entirety of New England would fit inside Oklahoma’s borders. Oklahoma City, the city where I lived and that was the heart of my congressional district, is a large, diverse, metropolitan community. After serving three terms the state legislature, with a new federal census in hand, redrew my district, stripping it of much of Oklahoma City, including the working-class district in which I grew up and whose inclinations I understood. My district was stretched north from the middle of the state all the way to the Kansas border and then east almost to Arkansas, all in a plan to strip Republican voters out of adjoining districts, making those districts more secure for the Democrats.
Suddenly I was representing dozens of communities of farmers, ranchers, members of Native American tribes, and small-town citizens whose community and economic interests were unfamiliar to me. For the rest of my congressional career I did my best to understand and respond to their interests and preferences, but when I stood before farmers at a meeting, it was obvious to them and to me that I would never be the kind of legislative voice they deserved. Allowing party interests to take priority over community interests is a direct attack on the very concept of electoral democracy.
The United States of Parties
Each one of the features of our political system discussed thus far undermines the most basic concepts of an electoral democracy and thus the incentive for elected officials to care much about the opinions of anyone other than their fellow primary-voting partisans. There is yet another feature that makes all of the above even worse. For many years, political scientists, pollsters, campaign strategists, journalists, and campaigners themselves have held as a rule of thumb that an election victory of more than ten points can be described as a landslide. In general elections, outcomes tended to be relatively narrow, forcing wise candidates to avoid extreme positions and hew toward moderate or centrist positions.
That is no longer the case because of how Americans have divided themselves and their states into distinctively red or blue camps. In 2014 the average winner of a U.S. Senate election won the general election by 22.6 percentage points; in 2016 by 22.1 percentage points; in 2018 by 16.8 percentage points; in 2020 by 18.1 percentage points. It’s even worse in U.S. House races, where the average margin of victory in 2014 was 35.8 percent, in 2016 36.6 percent, 2018 30.2 percent, and in 2020 28.8 percent.
To give those percentages a bit more power, here are some more specific numbers from those three elections, which collectively covered all one hundred Senators from the fifty states. In 2016, candidates elected to the United States Senate won by more than ten points (that is, won by a landslide) in twenty-three states. In 2018, the winning senatorial candidate won in a landslide in twenty states. In 2020, in twenty-three states. The nominee of the dominant party in a state won by a landslide in sixty-six of the one hundred elections; in other words, two-thirds of the members of the Senate essentially won their election when they became their party’s nominee. These numbers substantiate the point that if members of Congress want to continue in office, their incentive is to please their party’s base instead of the will of the larger public.
These are the elements of our electoral process—party primaries, sore loser laws, lack of majority-seeking runoff elections, partisan control of district boundaries—that elevate the choices of hardline partisans and choke off more desirable electoral options. These are the components of the system that makes it hard to argue that the United States is a democracy other than in its own self-description.
All of these factors are exacerbated by other practices tangential to the actual election process, such as the ways in which massive infusions of often unreportable money increase the advantage of a contributor’s favored candidates, and the party-governance model of both Congress and state legislatures, which applies continuous pressure on elected officials to hew to the party line (factors I’ve addressed in previous books and articles). But the process of erosion begins here, with the web that forces candidates, whether for election or re-election, to answer not to the majority of us but to the smaller and often unrepresentative political minorities who alone determine their electoral fate.
Democracy is being choked off in a system-wide web of anti-democratic policies. If we’re going to get out of this conundrum, maybe it’s better to see this web as a gordian knot. We can’t untangle it; there are too many threads each reinforcing the others. We need to cut through the entire system. Eliminate partisan primaries and let all candidates run together with all voters eligible to participate. Increase the number of states that allow preliminary and top-two final round elections to ensure that at the end of the process, the winner will have received an actual majority of the vote. Eliminate sore loser laws so we no longer have candidates who are popular on the broader scale from being eliminated by party hardliners. Turn over the drawing of electoral district boundaries to judges or independent commissions.
Many concerned observers are working on one or another of the interlocking parts of this democracy-killing system. So am I. But the truth is, no single change will restore our lost democracy; there are too many parts, too many pieces of the puzzle. If we want candidates and elected officials who will respond to the public will, there’s a lot of chopping to do.
I am not calling for the abolition of political parties, though that’s a tempting thought. What we need is a redefinition of the party’s role. A democracy needs as many avenues for framing and mobilizing dissent as it can get. Recruiting and endorsing candidates, knocking on doors and making phone calls, and raising money are the important functions of parties, but they must not be allowed to block ballot access, limit voter choices, or determine district boundaries. Political parties working as politically active Rotary Clubs is the only way to create the actual democracy we’ve always claimed to be.
Mickey Edwards is John L. Weinberg/Goldman Sachs & Co. Visiting Professor and Visiting Lecturer at Princeton’s School of Public and International Affairs. He served for sixteen years as a member of Congress from Oklahoma and is author of The Parties Versus the People: How to Turn Republicans and Democrats into Americans (2012).
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