American politics has proven time and again that a presidential candidate has to win more than just the most votes in order to be president. Hillary Clinton lost the presidency in 2016, despite getting more votes than GOP candidate Donald Trump; she beat Trump by nearly 3 million votes that year, winning 48 percent to Trump’s 46 percent of votes. In fact, Clinton’s lead was the largest of any “loser” in the five times a presidential candidate won the popular vote but failed to take the White House.
This issue with winning the popular vote while losing the election appears to be an issue that almost exclusively plagues Democrats. Many voters recall the 2000 presidential election, when President Bush snatched the White House while receiving 500,000 fewer votes than Democrat Al Gore. In American politics, Democrats not only have to win by a majority, they have to win by a substantial majority. Last week, polling analyst Nate Silver, tweeted some information illustrating Democratic presidential nominee Joe Biden’s chances of becoming president if he wins the most votes in November. Silver tried to keep his message upbeat, saying Biden had a good chance, if he kept his popular vote advantage even modestly high.
“You’ll sometimes see people say stuff like ‘Biden MUST win the popular vote by 3 points or he’s toast. Not true; at 2-3 points, the Electoral College is a tossup, not necessarily a Trump win. OTOH, the Electoral College is not really *safe* for Biden unless he wins by 5+.”
It sounds good for Democrats, but the fact that Biden must mash out an onerous level of majority votes in order to win runs counter to the essence of democracy, to some critics. If you win the most votes, you should probably win, they say, but it doesn’t work like that in the U.S. This is because of the nation’s “winner take all” tactic of collecting victory in certain states.
A total of 48 states do not subscribe to the purest sense of democracy. Instead of simply tallying the most votes and adding them to a nationwide whole, these states award all their electors to the candidate with the most popular votes in their state. That may still sound like democracy to many people, but in truth it erases all the voters in that state who didn’t vote for the winning candidate. In 2016, for example, Donald Trump won about 4.5 million votes in Texas. The votes that went to his opponent, Hillary Clinton, were discounted and were not applied to Clinton’s nationwide total.
This is a problem that looks even more glaring when you consider that former President Barack Obama won the U.S. presidential election in 2008 with historic nationwide turn-out. Obama earned about 1.8 million votes in Georgia that year. However, all 1,844,123 of his votes undemocratically vanished in that state because Republican candidate John McCain won 204,636 more votes than him. That’s almost 2 million people whose votes got entirely erased because the other team got a few votes more. It’s like they didn’t vote at all.
The same goes for Mississippi voters who voted for the winning candidate. In 2008, the 554,662 votes Obama received magically went *poof* the moment losing candidate John McCain grabbed 170,000 more votes in that state. In Texas, the system chucked 3.5 million Obama votes. In Louisiana, it destroyed 782,989 votes, all because McCain won more votes. This problem works in reverse as well; in Florida, McCain won an outstanding 4 million votes, but all of that came to nothing because Obama convinced about 240,000 more Floridians to vote for him that year, so 4 million McCain voters were essentially discounted.
Winner-take-all (WTA) is what happens when single-member district schemes or at-large, block-voting systems hand 100-percent control to the majority of voters—however slim that majority. It can lead to severe under-representation of communities of color. Winner-take-all tactics exclude many minorities in states like Texas and Mississippi, where party alignment is largely determined by race. In Mississippi and other states, for example, Black people mostly identify as Democrats, while much of the Democratic Party in Texas is comprised of the Latinx and Black vote. The system also excludes women and young people stuck in areas where another party dominates. For these voters, WTA creates areas dominated by a single viewpoint, and it often leaves frustrated voters with no-choice elections where one party has a permanent monopoly and the winner in the general election is predetermined.
In 2016, for example, almost all Georgia incumbents could be confident of reelection, even as the population grew more Black, and voter tastes evolved, because 80 percent of the races there were uncontested.
“In recent years, it’s been common for a third to 40 percent of state legislative seats to lack major party competition,” according to Governing.com. “It’s even worse during primary seasons, meaning legislators win re-election simply by showing up. In the four states that held legislative elections last year, 56 percent of the races went uncontested in the fall.”
Other downsides of this system include wasted votes on candidates who have no hope of winning and decreased voter turn-out, as voters simply give up on democracy. Understandably, nearly every new democracy has rejected WTA systems, but you wouldn’t know that by looking at U.S. court decisions.
The U.S. Court of Appeals for the Fifth Circuit, in red-state Texas recently shot down a lawsuit challenging WTA. The League of United Latin American Citizens and the League of United Latin American Citizens of Texas noticed how WTA was excluding the army of new Latinx voters emerging in Texas and sued the state over those exclusionary tactics. The mostly-white judges on the court argued, however, that WTA does not violate the sacred clause of “one-person, one-vote.” It also argued that even though WTA “may indirectly decrease the incentive of members of perennially losing political parties to vote, it does not hinder their actual ability to vote.” Essentially, the court argued that the prime importance in our democracy is not the voice of the people, but their freedom to go out and flush another pointless vote down the drain. At least, they say, voters have the right to the Big Flush—and that about covers it for democracy in America as far as the court is concerned.
“… [T]here is a critical distinction between a system that diminishes voters’ motivation to participate and one that burdens their ability to do so,” the court opined, so diminish away, agents of non-democracy. The court’s apparently got your back.
In a final insult to democracy, the court did not even address whether or not WTA puts one party at a disadvantage because “discrimination against a political minority does not violate one-person, one-vote.” In their opinion, just go vote in the party that does not support you or your issues. This, of course, ignores the fact that certain minorities almost wholly identify as one political party over the other for a reason.
One of the most irritating things about the WTA system is that, unlike the Electoral College, WTA is not mandated anywhere in the Constitution. States could actually choose to award their electoral votes proportionally to their statewide popular vote. In fact, two states, Maine and Nebraska, use a ‘congressional district method’ that allocates two electoral votes to the popular vote winner, and an additional electoral vote to the popular vote winner in each Congressional district. This setup allowed Barack Obama to win Nebraska’s 2nd Congressional District in and around Omaha in 2008, and gave him an electoral vote in that deep-red state. Donald Trump, meanwhile, won Maine’s 2nd Congressional District in 2016.
Nate Silver’s analysis easily has Biden winning by five percentage points or more, providing he snatches a cool seven million extra votes. Anything less than 4.5 million extra votes, however, and his chances drop. If Biden and his VP candidate Kamala Harris only net three million-votes, their victory becomes much less likely, and this shouldn’t be the case in a real democracy.