The American political tradition enshrines majority rule, with rights for the minority. But some wonder whether the United States is sliding toward minority rule.
More and more Democrats are saying the system is out of whack.
Twice in the last 20 years, their presidential candidate got more votes but lost the election. And now that the 2022 redistricting cycle is beginning, Republicans in many states will be able to get fewer votes but end up with a majority of seats.
In the Senate, many Democrats say a system designed to protect the rights of smaller states has turned into partisan minority rule. According to the Constitution, every state — no matter if it has 1 million people, or 30 million — gets two senators.
But Sen. Brian Schatz, from the small state of Hawaii, says that disparity is growing.
"The way this is starting to work is that elected representatives who collectively have gathered 10 million, maybe 12 million, maybe by the year 2030 30 million fewer votes are going to stack the judiciary and entrench minority rule," Schatz, a Democrat, said during last year's debate about confirming Amy Coney Barrett to the Supreme Court. "And so something has to give."
Right now, the Senate is split evenly in half, but the 50 Democratic senators represent 41.5 million more people than the 50 Republican senators.
By 2040, if population trends continue, 70% of Americans will be represented by just 30 senators, and 30% of Americans by 70 senators.
That has lots of implications, such as for the Senate filibuster, where a party that represents a shrinking minority of voters can block almost all major legislation.
But it also has implications for the Supreme Court, says Jesse Wegman, author of Let the People Pick the President.
"You have this sort of turbocharged minority rule," he said. "You have a counter-majoritarian institution chosen by people who were picked by a minority of the citizens. That's not a sustainable model for a representative democracy."
Conservative Republican Brad Smith, a former member of the Federal Election Commission, disagrees. He says the system has worked pretty well because when the Framers designed the Senate, they understood that a small state such as Rhode Island would never have as much clout as a big state such as New York.
"These are the kinds of reasons why at the Constitutional Convention there was the Great Compromise of having one chamber by population and one chamber elected by states," he said. "You know, under that system we've become like a really rich, powerful, wealthy, free country."
And Smith says it's really hard to change because the Senate is enshrined in the Constitution.
But Wegman says this is not what the Framers had in mind. For one thing, when they wrote the Constitution, they thought only white men with property could vote. And they certainly couldn't have imagined how the population would grow and sort itself out.
"At the time of the founding, the biggest state was 13 times the size of the smallest state. Today, the biggest state is 70 times the size of the smallest state," he said. "So a few hundred thousand people in Wyoming have as much power as tens of millions of people in California or New York. And I think that violation of majority rule is going to continue to haunt us through the Senate, which is not really alterable in any meaningful way other than by just adding more states."
Democrats don't currently have the votes to grant statehood to Puerto Rico or Washington, D.C., or the U.S. Virgin Islands.
The role of gerrymandering
Then there's the House of Representatives and statehouses around the country, where representation is supposed to be based on population.
But Michael Li of the Brennan Center for Justice at New York University says partisan gerrymandering hasn't just created safe seats for Democrats and Republicans. In many cases, he says, it allows one party to draw district lines that secure its grip on the state legislature — such as Wisconsin.
"The map there was drawn by Republicans so that under any reasonable election scenario, they win a majority of the seats," Li said. "So even if they win, say, 47[%] or 48% of the vote statewide, they are likely to get about 60% of the seats. And that's something that's deeply undemocratic."
And the same thing has happened when Republican legislatures draw congressional district lines. "In North Carolina, for example, the map that was drawn gave Republicans 10 out of the state's 13 congressional districts," Li said.
And that's in a state where Democrats get way more than three out of every 13 votes.
Republicans say Democrats do partisan gerrymandering, too. And they say if Democrats were able to win control of more statehouses — something they failed miserably at in 2010 and 2020 — they would be doing the exact same thing.
There are reforms to partisan gerrymandering. Some states have adopted nonpartisan redistricting commissions. Others give the opposition party more input.
Another idea: Congress could add more seats to the House. The 435-seat limit was set way back in 1929 when the U.S. population was much smaller. Now, almost every congressional district represents about 760,000 people. A fairer system, reformers say, would be to make more districts, creating more representation.
But Republican Smith thinks all the reforms that Democrats would like to make to the rules governing representation could have unintended consequences because, he says, politics can change quickly as well.
"It's well within my memory that West Virginia was a lock state for Democrats in presidential elections and Senate elections," he said. "There might be a reason for making these changes. But the reason for making these changes is not the short-term political advantage of the Democratic or Republican Party."
In the past, however, short-term political advantage was generally the main reason changes in the rules have been made. And right now many people in both main parties, for different reasons, think the system isn't fair to them.