Minority Rule Is a Threat to Liberty

Structural explanations for polarization—from first past the post elections to the advent of social media to the changing rules of campaign finance—should all produce more or less symmetrical polarization. Negative partisanship and tribalized extremism should be afflicting both parties to a similar degree, but they are not, or, at least, are not affecting them in identical ways.

Partisans on both sides are tempted to insist they can’t legitimately lose. But underlying that erosion of democratic norms is a uniquely American element accelerating that illiberal trend. The prospect of minority rule, enabled by largely unintended structural consequences of our electoral system, is part of what’s driving us crazy.

Once a political party knows it can win elections with a merely mid-​40s percent share of the two-​party vote, any challenge to that system can start to feel like an existential threat. At the same time, to the party with a consistent popular majority, the system feels increasingly illegitimate, even rigged. This imbalanced dynamic fuels resentment and undermines popular support for constitutional norms. It’s no longer a system where all sides accept that sometimes they will legitimately lose elections.

To understand this dynamic, we must start with Duverger’s law, named after the French political scientist Maurice Duverger. He observed that a plurality-​based electoral system like our own—that is, one where the candidate with the most votes wins even if that is less than a majority—tends to produce two big-​tent major parties balanced around the 50/50 tipping point. It also predicts this will lead to two parties competing for the political center, encouraging moderation and stability.

You see this most strongly in the United States, which stands alone among the major democracies in having only two parties represented in its national legislature. But even in places like Canada and the United Kingdom, which also use plurality elections (otherwise known as “first past the post” elections), the elections are effectively a contest between two possible governing parties, one of which almost always secures a majority. These two-​party systems contrast with the much more fractured legislatures of nations that use proportional representation, where typically no party secures a majority and coalition governments are the norm.

Runaway polarization is what happens when Duverger’s law produces two near-​even major parties, but the process doesn’t stop there. Instead of passively reflecting the natural divisions in the electorate, parties begin to reshape those divisions. Instead of competing for the middle, you get a hollowing out of the middle as citizens are increasingly sorted into their respective camps. This can become a spiraling cycle of tit-​for-​tat escalation. When combined with the failure of other checks in a system (such as heterogeneous regional politics), what you get is, well, the past three decades or so of American politics.

Crucially, we don’t have an electoral system where the tipping point is 50/50. The Electoral College, the Senate, and to some degree the House and state legislatures don’t flip from one party to the other unless we hit a tipping point that is skewed decidedly in the GOP’s favor. This didn’t used to be the case; when Democrats were the more rural party and predominated in a larger number of smaller states, they reaped the benefits of the tilted playing field, helping to cement their decades-​long domination of Congress in the mid-​twentieth century. But after modern political realignments, it is now the party of Lincoln that holds the geographical edge.

This is an unintended aspect of how modern conditions have interacted with our 232-​year-​old Constitution. It has always been the case that the Electoral College can sometimes award our highest office to the popular runner-​up. It happened three times in presidential elections in the 19th century, with no small amount of contentiousness and dissatisfaction each time. But it wasn’t until the modern era, defined as it is by nationalized polarization on the basis of density (urban versus rural), that this started to produce a systematic and reliable partisan bias in one direction.

As recently as the 2000 election, observers thought it more likely that Al Gore might win the Electoral College while George W. Bush won the popular vote. Of course, the opposite happened. Bush won the Electoral College on a few hundred disputed votes in Florida while losing the popular vote by about half a million votes, or half a percent of the total votes cast.

In 2016 it happened again and by a much wider margin. Donald Trump defeated Hillary Clinton while losing the popular vote by over two percent, or nearly three million votes. And in 2020 it very nearly happened yet again. Just a few tens of thousands of votes in a handful of states stood between Trump and a second term even though Joe Biden had thumped him by more than seven million votes nationwide, or almost four and half percent.

Not only do Republicans no longer need to win a majority of the vote in order to win the presidency and legislative majorities, the amount by which they can fall short is rapidly growing. The Republican nominee has won the national popular vote in the post-​Cold War era exactly once: 2004. Two-​thirds of their time in the White House over the past three decades came from popular vote losses. Similar trends have played out in congressional elections and some state legislatures, where the quirks of geography, history, election rules, and federalism combine to Republican advantage.

It is true, as defenders of the Electoral College often note, that we don’t really have a national popular vote. Campaign strategies and voter turnout patterns would play out differently without the Electoral College or if we had different rules for electing legislators. But that is precisely the point. Campaign strategies and voting behavior reflect the system we have, for better or for worse. The downsides of a system that enables minority rule are real and can produce negative consequences for both parties.

In elections for the House of Representatives and state legislatures, this happens in part because Democratic voters are inefficiently distributed. There are more Democratic voters in safe red seats than Republican voters in safe blue seats. A typical red district often still sees a quarter or even a third of its vote go to Democrats, but urban blue districts are commonly more lopsided, with Republican voters amounting to a tenth or less (that is, if a Republican candidate even bothers to run).

This means that more Democratic votes are wasted, so to speak, than Republican votes, and thus fewer Republican voters translates into a larger number of Republican legislators. It’s a tactic used deliberately in gerrymandering, but the reality is that Democrats are naturally “packed” and “cracked” in ways that would be difficult to counteract through any possible arrangement of district lines.

Thus, for much of American politics the win number—the crucial figure around which all political strategy is built—is not 50 percent of the two-​party vote. Republicans can win with as little as 46 or 47 percent and Democrats might have to reach as much as 53 or 54 percent. And that gap is only growing. It’s not a static Republican advantage, but it could conceivably, within a few more election cycles, elevate a Republican to the White House even though his or her popular vote loss reaches 5 or 10 percent, maybe more. In some state legislatures, the Republican structural advantage is already that large.

Strange things happen to parties that can win while getting fewer votes. For one thing, they’re driven to be more radical. Another is that a victorious party can still feel like a persecuted minority because they actually are the minority. They feel their alienation across the rest of society and especially interacting with elite institutions. Their minority status is reflected in culture and business—note how dominant conservative complaints are about the liberal media, progressive academia, left-​wing Hollywood, woke corporations—and so they turn to their political officeholders to fight back. It’s a recipe for turning politics and policy into their only available battleground in the culture wars.

When Democrats complain, however, that this system produces Republicans winning elections more often, they misunderstand what’s really happening. Both parties still end up in power about half the time. Democrats may boast and Republicans may fear that a straight popular vote would produce constant Democratic control, but Duverger’s law doesn’t work that way. The incentives still balance the system around its tipping point; the two-​party system recalibrates as partisan coalitions realign. Instead, our skewed tipping points produce one party which is chronically insecure about its lack of a popular mandate and the other party which is constantly furious at the unfairness of its losses.

To libertarians, this might seem like another inconsequential aspect of red team versus blue team politics. As always, we’re tempted to step back and just say “a pox on both your houses.” But in doing so, libertarians miss the chance to shine a light on the problem and provide valuable insights.

Libertarians are particularly adept at analyzing systems from the perspective of incentives. For example, Madisonian analysis of checks and balances drives libertarian views on the constitutional structure of government. Free market economists pioneered how we understand the nature of the price system and free markets as incentive-​driven structures. Public choice theorists produced a valuable new method of analysis that helps explain the incentives governing political actors. When faced with systemic bad outcomes, libertarians embrace a philosophy of don’t hate the player, hate the game.

Libertarians also have a justified fondness for counter-​majoritarian rules for government, in particular, supermajority systems that require more than a bare 50 percent to make law and which give political minorities a variety of veto points. But these supermajority mechanisms must be distinguished carefully from those which instead enable minority rule. It’s one thing to require some bills to be passed by three-​fifths or two-​thirds majorities in legislative bodies, or to empower the courts to strike down unconstitutional laws even if they have majority support. But that is not the same as handing one party the powers of a majority based on a minority of the popular vote.

Instead of requiring a more difficult supermajority for exercising power, electoral systems that produce minority rule let less than a majority exercise power, with all the authoritarian impulses that produces. Instead of making the exercise of state power more difficult or constrained, minority rule unleashes the impulse to use state power more aggressively and with less restraint.

The consequences for constitutional rule of law and liberal democracy are dire as this dynamic undermines support from both parties. Each side increasingly sees the other as illegitimate. The fundamental buy-​in on which a constitutional system depends can start to wither away. And with it go all the protections for individual rights embodied in the Constitution and the rule of law. They are dismissed as mere obstacles to what really matters: the do-​or-​die struggle to keep the other side out of power. All of this can happen in any deeply entrenched two-​party system, but it is exacerbated by the dynamics of a skewed tipping point.

Stripped of democratic legitimacy even when they win elections, the minority party needs new justifications for why its people are somehow more entitled to rule than their opponents. A siege mentality creeps in and apocalypticism runs rampant, driven by the (accurate) perception of being a minority everywhere except when it comes to wielding state power. On the other side, it becomes harder to justify support for playing by the rules of the game when they produce so clear a partisan bias. Elections may still be freely contested but they no longer feel fair.

The larger party will inevitably get drawn into the cycle of escalating anti-​constitutional politics as well, especially when they are out of power thanks to a minoritarian electoral system. The smaller party, with its dependence on minority rule, might become illiberal faster, but the trend on both sides leads in the same ultimate direction. Respect for constitutional processes, the rule of law, and free speech will be undermined in the larger party no less than the smaller one because of the perceived need to fight the anti-​democratic opposition at all costs.

There are good reasons to favor some of the unique features of our election system, including the Electoral College, the equal representation of states in the Senate, and the single-​member districts we use for the House. All three can reinforce federalism and localism: voters are always represented in the national government through their respective states. The states function as electoral units, each a distinct polity and not merely a convenient geographical designation. At the same time, there are aspects of this system—some fixable, some not—which increasingly produce a systemic partisan skew. One party can now reliably win elections despite receiving fewer votes than their counterpart.

It is unlikely that any fundamental change to these constitutional structures could muster the needed supermajorities to amend the Constitution. But there are other things that can be done, all ultimately aimed at reducing the winner-​take-​all nature of our elections.

More proportional, multi-​partisan, and less polarizing election systems can bubble up from state-​level reforms such as the recent adoption of ranked choice voting in Maine and Alaska. Novel systems (though they aren’t that novel, having long been widely adopted in other countries) can be applied to elect state and local legislative bodies, and in some cases federal offices as well. Nonpartisan elections, approval voting, instant runoff voting, proportional representation, and multi-​member districts are all among the options on the table. More important than the merits of any particular reform is the idea of states as sites of innovation and experimentation. In that regard, states really can be laboratories of democracy.

At the federal level, the most important reform would be unwinding the immense and unconstitutional concentration of power in the modern imperial presidency. The winner-​takes-​all stakes of our hyper-​presidential system makes it so that our entire political ecosystem orbits around control of the Oval Office. Another important change would be breaking up the wildly excessive concentration of power in congressional leadership. The better alternative would be reopening a genuine legislative process, with amendments freely offered and members having a real say in outcomes. Changes along these lines would weaken the fears of domination and being excluded from having a seat at the table.

One key to lowering temperatures is to ensure broader representation. The current system effectively excludes each party’s more moderate and less strongly sorted voters from having a voice at all in elected office. Multi-​member districts chosen using proportional representation are one possible way for Democrats in red states and districts as well as Republicans in the cities and blue states to still be represented, which they currently are not. The idea behind such a system would be that every voter gets to be in a district with multiple representatives, with seats allocated proportionally rather than via the winner-​take-​all process.

Any attempts at systemic reform are dependent on first recognizing the problem. The threat to liberalism must be understood as something distinct and larger than the usual give and take over policy preferences. There needs to be a revitalized appreciation for why we have constitutional liberalism, the rule of law, electoral democracy, and checks and balances-​-​and how these things are special, fragile, and sometimes in real danger. If our partisan politics continue to stress-​test the Constitution, it could eventually break, and the consequences would be catastrophic. We know what the alternatives look like, and they aren’t pretty.

The next swing of the pendulum, the next escalation of polarization, or the next partisanship-​induced constitutional crisis might not end with a farcical mob being chased off after a few hours wandering around the US Capitol. The normalization of political violence could spiral out of control if left unchecked. Electoral democracy, for all its faults, offers a crucial way for social tensions and disputes to be decided more peacefully than by civil wars and attempted coups.

As relative outsiders to both major-​party coalitions, libertarians can play a moderating and reformist role, helping to shape a broad coalition in defense of liberalism. We must resist being subsumed into the illiberal right under the guise of anti-​establishment politics. We should recognize that the collapse of our tradition of peaceful transfer of power and the normalization of mob violence by election losers are urgent, first-​order threats to liberty. And all this depends on creating a broadly liberal coalition that is willing to seek systemic reforms to undo the perverse structural incentives which brought us to this place.

That might seem a daunting task, maybe even a futile one, against such entrenched incentives. But liberty has advanced by such dedicated efforts throughout history, in most cases starting from a much worse status quo. It’s how we have gotten as far as we have such that we can now be worried about backsliding into post-​liberalism. It is that history which should make us all the more acutely aware of what is at stake when liberalism is in the balance.