In tennis, the two players switch sides of the court after every odd game — to even out any advantages that one player might have due to the sun. Democracy is no tennis game, but it is nevertheless a competition.
And in the U.S., the competition is far from fair.
For a variety of reasons — some long-standing, some intentional, others newer or incidental — the political institutions that make up the field of American politics are increasingly stacked in favor of one side: the Republican Party.
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Take the Senate. Republicans currently hold half of the seats in that chamber even though they represent just 43 percent of the U.S. And it’s not just the Senate — the Electoral College, the House of Representatives and state legislatures are all tilted in favor of the GOP. As a result, it’s possible for Republicans to wield levers of government without winning a plurality of the vote. More than possible, in fact — it’s already happened, over and over and over again.
Minority rule has always been possible in the U.S., as we saw during the Jim Crow era, when white people manipulated elections and obstructed Congress in order to suppress the rights of a Black majority in many Southern states. The founders purposely designed many of our federal institutions to only indirectly reflect the will of the people — in political science lingo, they made them “counter-majoritarian.”
And for most of our nation’s history those minority protections helped both parties in roughly equal measure. In other words, to revisit our tennis game analogy, the two players regularly switched sides of the court, but now, that isn’t the case.
Instead, according to political scientist Rob Mickey and author of “Paths Out of Dixie,” a book about enduring antidemocratic rule in Southern states, our institutions are now being “weaponized and used … by a coherent set of actors with a coherent set of interests and preferences” — the modern GOP. Increasingly seeing the appeal of minority rule as demographic change shrinks the voting power of their heavily white coalition, Republican leaders are using their institutional leg up to try and take steps — like enacting voting restrictions, but also attempting to undermine the results of popular elections — that entrench their advantage even more solidly. And because these institutions interact to shape the game, its rules and its arbiters, they reinforce one another in an antidemocratic feedback loop. In this way, institutions that have long kept our democracy balanced are now threatening to unravel it.
Republicans can govern without winning a majority. That threatens our democracy.
It may seem dramatic to suggest that Republicans are overriding democracy to win power when Democrats currently control all three elected legs of the federal government: the presidency, Senate and House. But in order to secure them, Democrats had to go above and beyond winning a simple majority of votes, like a tennis player having to ace all of her serves on a particularly windy day.
By now, Democrats’ disadvantage in the Electoral College is well-documented. President Joe Biden won the national popular vote by 4.5 percentage points, yet he won Wisconsin — the state that gave him his decisive 270th electoral vote1 — by only 0.6 points. In other words, Biden needed to beat former President Donald Trump nationally by more than 3.8 points2 in order to win the White House outright. (However, Trump wouldn’t have won outright unless Biden had won the popular vote by fewer than 3.2 points, thus losing Pennsylvania as well.3 The Electoral College’s Republican bias in 2020 thus averaged out to 3.5 points — but either way, it’s the most out of sync the Electoral College has been with the popular vote since 1948.)
But in many ways, this is Republicans’ least concerning advantage, because the bias of the Electoral College is not consistent. Though it favored Republicans in 2016 and 2020, Democrats were actually the beneficiary from 2004 to 2012. Contrary to popular belief, the Electoral College’s bias doesn’t stem from its privileging of small states, but rather from its winner-take-all nature and which states happen to be battlegrounds.
That said, of course, it is Republicans who have now won the presidency twice in the last six presidential elections while losing the popular vote. Political scientists say this occurrence risks “significantly decreas[ing] the perceived legitimacy of the winning candidates.” The false election-fraud allegations surrounding the 2020 election showed that legitimacy may be difficult to regain, especially when Republicans continue to push the lie that the election was stolen: Only 27 percent of Republican respondents to a Reuters/Ipsos poll conducted almost five months after the election said that the 2020 election was “legitimate and accurate.”
Another of our counter-majoritarian institutions, the U.S. Senate, was designed to amplify the political voice of less populous states. For decades, this had no partisan effect: Democrats and Republicans were equally competitive in big and small states alike. But in the last half century, the two parties have gradually undergone a dramatic urban-rural sorting that has made most small states reliably Republican and most big states bastions of blue. So now, the Senate’s small-state bias has become a Republican bias — both more consistent and more severe than the Electoral College’s.
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Last year, despite Biden winning the national popular vote by 4.5 points, Trump won the median Senate seat4 by 0.5 points. That 5.0-point Republican lean makes the Senate the most biased institution in the federal government.
In fact, Republican senators have not represented a majority of the population since 1999 — yet, from 2003 to 2007 and again from 2015 to 2021,5 Republicans had a majority of members of the Senate itself. That means that, for 10 years, Republican senators were passing bills — and not passing others — on behalf of a minority of Americans.
This has implications for policy as well as democracy. “You have a Senate that empowers small states,” Jake Grumbach, a political scientist at the University of Washington, said. “Plus [with] the filibuster, you have to get compromises to get to 60 votes.” For example, Grumbach pointed out, fossil-fuel-producing states such as Kentucky, Louisiana and West Virginia don’t have very many people, yet their six senators are capable of blocking legislation to address climate change even though most Americans say the federal government is not doing enough on the issue.
The Senate not only passes legislation that affects every American, but it also confirms the president’s judicial nominees, including Supreme Court justices. That brings us to the first way in which counter-majoritarian institutions reinforce each other. If the Senate and the Electoral College are biased in the same direction, as they are now, it gives a minority party broad power over the entire federal judicial branch. And the current minority party, Republicans, has so far been incredibly successful at appointing judges to the federal courts: From 2017 to 2021, more than 220 judges, including three Supreme Court justices, were appointed by a president who lost the popular vote and confirmed by a Senate that a majority of voters didn’t choose.
These judges are the umpires who uphold the rules of our tennis game, but when a system of minority rule brought them to power, those decisions may not be impartial. Rather, their rulings on cases involving redistricting and voting rights can deepen the minority’s institutional advantages. Indeed, under Chief Justice John Roberts, the Supreme Court has done just that with rulings such as Shelby County v. Holder, which weakened the Voting Rights Act, and Rucho v. Common Cause, which said federal courts should not review partisan gerrymanders. And because federal judgeships are lifetime appointments, these judges will shape our democracy not just in the short term, but for decades to come.
The House of Representatives completes the federal trifecta of imbalance: According to Daily Kos Elections, Biden won the median House seat (Illinois’s 14th District) by 2.4 percentage points, meaning it was still 2.1 points redder than the country as a whole.
This is not a new phenomenon: The House map has had a Republican bias since at least 1968, based on presidential election results. And in 1996 and 2012, Republicans even won House majorities despite Democrats winning the House popular vote.
Unlike the Electoral College and Senate, the founders actually did intend for the House to represent the majority of people — yet the chamber now shares the others’ Republican bias. One reason for this is, again, urban-rural sorting; the clustering of Democratic votes in urban areas has made it harder to draw maps that benefit Democrats rather than Republicans. But another reason is engineered by Republicans themselves. The GOP has taken full advantage of its many opportunities to draw boundaries that give them an unfair advantage. For instance, after the red wave election of 2010, Republicans drew more than five times as many congressional districts as Democrats, and they used it to push their structural advantage in the House to record levels.
The House’s Republican bias in the 2020 election, however, wasn’t as severe as earlier in the decade, as some Republican-drawn maps were invalidated by courts and shifts in electoral coalitions also caused some gerrymanders to backfire (e.g., suburban seats that had been assumed to be safely Republican in 2011 have become more Democratic). That said, Republicans had a strong down-ballot performance in the 2020 elections, so they will once again get to redraw a plurality of congressional districts as they see fit, which could again pad the House’s Republican bias.
In this way, a chamber that was intended to counteract the skew of the Senate ends up reinforcing our structural imbalance even more.
State legislatures are the last piece in the institutional jenga. Here, too, urban-rural sorting and gerrymandering have handed Republicans an advantage: Republicans currently control at least four state-legislative chambers (the Michigan Senate, Michigan House, Minnesota Senate and Pennsylvania Senate) for which Democrats won the statewide popular vote in the last election.6 Democrats also won the 2018 popular vote in the Michigan House, North Carolina House and Pennsylvania House yet failed to take control of those chambers. In fact, Republicans have controlled the Michigan House without interruption since the 2012 elections despite winning the popular vote in just one of the five elections to take place in that time, according to Daily Kos Elections.
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This is important not only because state governments enact the types of policies that are most consequential for people’s lives, but also because they can reinforce minority rule. In most states, legislatures draw the districts in which both state lawmakers and U.S. representatives are elected. This raises the possibility that minority rule can self-perpetuate: A minority-elected legislature can theoretically set up future legislatures and congressional delegations to be elected with a minority too.
Additionally, legislatures are the ones with the power to change election law since elections are administered at the state and local levels. That means, as we’re seeing now in states like Georgia and Iowa, that they can make the competition less fair by changing the rules of the game.
It’s always been possible for state legislators to write partisan laws and draw self-serving maps, and to some degree it has always happened. But if legislatures’ recent actions have felt especially antidemocratic, it’s not your imagination. In our highly polarized era of politics, Democrats and Republicans view each other with increased suspicion and hatred, meaning they’re willing to go to greater lengths to keep the other side out of power. And as the parallel trend of political nationalization has made state and national politicians more like-minded, they’ve been able to more efficiently coordinate their efforts to exploit minority rule for political gain.
Republicans, in particular, have been more willing than Democrats to violate norms — and even subvert democracy — in order to retain power. Indeed, recent research from Grumbach on state-level democratic backsliding has found that the most important predictor of how undemocratic state-level institutions are is whether the GOP is in power.
“When [Republicans] take unified governance, where they control both legislative chambers and a governorship, they have tremendous leeway to change election administration and districting,” Grumbach told us. “And those have effects [that] reverberate throughout the political system.”
Republican state legislatures have repeatedly attempted to undermine the results of popular elections that didn’t go their way. Most infamously, after the 2020 election, Republicans responded to Biden’s win by introducing bills to allow a state legislature to annul the certification of elections and even to declare the 2020 election in one state null and void and appoint their own electors.
But these attacks on majority rule started long before 2020. After the elections of Democratic governors and other state officers in North Carolina (in 2016), Wisconsin and Michigan (in 2018), Republican legislators scrambled to strip certain powers, such as political appointments, from those posts before the Democrats took office. And Republican-controlled legislatures in Florida, South Dakota and Utah have repealed or defanged liberal laws passed via ballot measure since 2016, while at least seven states7 have proposed laws this year that would make it harder to pass ballot measures in the future. Some of them would outright enshrine minority rule into law — for example, by raising the threshold for passing ballot measures from 50 percent to 60 percent.
Though these attempts have only sometimes been successful, they demonstrate how Republican-controlled state legislatures are increasingly willing to circumvent the will of the people in order to achieve their desired ends.
“You have a party that believes at a high level in democracy, and you’ve got a party filled with a number of people who wield power who don’t,” Hakeem Jefferson, a FiveThirtyEight contributor and a professor of political science at Stanford University, told us. “I think it’s uncomfortable for scholars to say outwardly, because it doesn’t seem like the objective thing to say, but it is empirically the truth.”
Jefferson is one of many scholars who believe that Republicans are embracing minority rule because of demographic changes. Having made the fateful decision to appeal primarily to white voters decades ago, Republicans now face an existential threat in a country where people of color are becoming a greater and greater share of the population. “They’re so fearful of the imagined harm that comes to their hold on power when a more diverse constituency becomes a part of the electoral process,” Jefferson said.
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Americans have picked up on this: More than half of Black respondents in a 2020 poll conducted for FiveThirtyEight by Ipsos said that Republicans don’t want “people like me to vote” while just 6 percent said the same of Democrats. A similar pattern was evident among Hispanic and other nonwhite respondents. In part, this reflects partisanship, but it is hard for a multiracial democracy to endure when entire demographics feel — with some justification — that one party opposes their right to vote.
The irony, of course, is that it’s difficult for voters to push back against antidemocratic actions because Republicans have built-in advantages in so many legislatures. Minority rule “helps them maintain their hold on power, even as majorities oppose their policy position,” Jefferson said. But even if legislators were not insulated from backlash, University of Virginia political scientist Anne Meng told us there is not much evidence that politicians who drift into antidemocratic rhetoric or measures are punished electorally. State and local elections have lower participation than presidential elections, voters know less about down-ballot candidates and, according to a study by political scientist Steven Rogers, state legislators do not suffer electoral consequences for voting against the interests of their constituents.
“In a highly polarized environment, partisanship gets in the way of democratic ideals,” Meng said. “If your person is being very antidemocratic, but you perceive that politics is just hyperpolarized, you’re going to value just keeping your guy in power over the health of the democracy.” Even a partisan power grab can gain a false veneer of democratic legitimacy, Meng told us, when leaders use democratic procedures to pass it. “Voters might be like, ‘Well, they got this passed through the legislature … That seems OK’” — especially if the party passing it is “your guy.” In other words, Republican voters might support democracy in the abstract, but their loyalty and trust in their team can override that.
Indeed, despite all the suggestions that Republicans may have abandoned their commitment to democracy, a Jan. 28-Feb. 8 poll from Bright Line Watch, a group of academics who study democratic backsliding, found that 81 percent of Republicans still said democracy was a good form of government. However, according to one of the political scientists behind Bright Line Watch, the University of Rochester’s Gretchen Helmke, while the two parties might still largely agree that democratic principles are important (94 percent of Democrats also said that democracy was a good form of government), they often have very different views on whether and how those principles have been violated.
One example is the share of Republicans who say they are not confident that votes in presidential elections are counted accurately when their candidate loses, something the Survey on the Performance of American Elections tracks after every election. And although this number was especially low after the 2020 election, it was true after 2012 too, suggesting these antidemocratic attitudes are a long-term problem for the GOP.
In part, though, this helps explain why voters who claim to support democracy actually support measures that would undermine it: They don’t think what’s happened is democratic. For example, Bright Line Watch found that Republicans were 11 percentage points less likely to vote for a GOP congressional candidate who voted to affirm the certification of Biden’s win. Other research has shown that, when polarization is high and the stakes feel as existential as they do now, voters are willing to abandon democratic principles to further their partisan interests and keep the other side out of power. According to Cyrus Samii, a professor of political science at New York University who studies ethnic conflict, “the sort of extreme partisanship that you see in response to legislative agendas seems to tie back to that fundamental conflict” over who “the people” in “we the people” ought to be.
Simply put, America’s counter-majoritarian institutions have never been stacked so high against one party. Because of this cumulative tilt, Democrats have to win increasingly large majorities in order to govern — and Republicans increasingly don’t have to win majorities at all. In recent years, they have controlled the White House, the Senate, the House and several state legislatures despite most voters preferring the other party. And in the words of Daniel Ziblatt, a political scientist at Harvard University and author of “How Democracies Die,” a “political system without any majority rule at all — it’s not really very democratic.”
Minority rule is not just a fact of life for the GOP — it is a strategy, encouraged by Republican politicians who fear ceding power to a more and more diverse majority. And because political institutions interact to shape the rules of our democracy, they have created a vicious cycle where minority rule can perpetuate itself.
“Essentially, what this means is the Republican Party can go off the rails without really suffering any immediate electoral costs,” Ziblatt told us. “They can win the presidency without winning the popular vote; they can control the Senate without representing the majority of voters. And so the self-correcting mechanism of American democracy” — elections — “is not working, because they’re not getting the signal that what they’re doing isn’t a winning strategy — because it is a winning strategy.”
In other words, if American democracy were a tennis game, the Republican player would be set up perfectly. His opponent would be hitting every ball into the wind, and every call from the umpire’s chair would go his way.
But of course, democracy is not a tennis game — it’s much more important.
Art direction by Emily Scherer. Copy editing by Maya Sweedler. Story editing by Sarah Frostenson. Video by Laura Bronner, Anna Rothschild and Michael Tabb.