A Democracy?

Sandy Levinson at Balkinization:

Already articles are appearing suggesting that widely predicted Democratic gains in the forthcoming elections may be vanishing, not least because of the success of the Bush Administration in terrifying the public about the ever-present "global war on terror" and demonizing the Democratic opposition only slightly less, if at all, than "Islamofascists" who are said to be the equal in evil to Hitler and Stalin. So imagine the following possibility: The Republicans retain control of the House by, say, 3-5 seats, all the results of egregiously partisan gerrymanders in Texas and Pennsylvania. And the Senate remains Republican by, say, a single vote, even though Santorum loses in Pennsylvania and Dewine loses in Ohio.

That result would produce the following phenomenon: We would be governed by a President who enjoys notably less than the support of the majority, as measured in every public opinion poll for months. Indeed, a majority of the country believes that he is untrustworthy. The House would be Republican only because of rank manipulation by which, in Sam Issacharoff's and Alex Alienikoff's great analysis, representatives pick their voters rather than the other way around, with the minority in gerrymandered districts serving the function of "filler people" whose only role is to count toward the "equal population" mantra of Reynolds v. Sims, though not otherwise to have any real possibility of casting a meaningful ballot. And the Senate would remain Republican only because of the absurd and indefensible malapportionment that gives Wyoming and California the same number of votes even though California has approximately 70 times the population. Indeed, even as we speak, the 55 Republican senators were elected with approximately 3,000,000 fewer votes than the 44 Democrats over the last three election cycles. And the 44 Democrats represent states with a total population larger than the states represented by the 55 Republicans (including splitting the population in states currently represented by one Democrat and one Republican). If Santorum and Dewine lose, this disproportion in favor of the Democrats will, of course, be all the greater.

The Republicans would no doubt claim a popular "mandate" for their polices, both foreign and domestic, should they retain control of Congress in the circumstances described. It is up to Democrats (and democrats) to undercut any such claims. At lest some Democrats (and democrats) should try to educate the public in the reality that the United States Constitution (through the Senate and the practical operation of the electoral college much of the time), plus the reality of partisan gerrymandering (which, of course, has also been engaged in by Democrats when they had the chance), severely limits the sense in which the United States can be said to be democratic. This is true, alas, even when elections are free and all the votes are counted--something that may no longer be taken for granted if some of the more ominous concerns about electronic voting turn out to be true.