The American political system includes no guarantees that the party with the most votes or the most registrants will win the most elections. The Constitution allows for a number of situations in which the minority party can rule. This, however, can create legitimacy problems in a country that fancies itself the world’s oldest democracy. What is a minority party leader supposed to do in such times?
We saw an example of this in 2000, when George W. Bush was awarded the presidency through a controversial series of judicial rulings following a disputed election in which his opponent received the most votes. Bush faced the unenviable position of beginning a presidency amid a legitimacy crisis. Only about half the country felt he was elected “fair and square.”
Such a leader faces at least three paths for addressing the legitimacy problem. One is to reach out to the majority party’s voters in an attempt to be the president of the whole country. This rests on the reasonable conclusion that people will be more inclined to see your position as legitimate if they agree with how you do the job. George W. Bush didn’t do a whole lot of this, although his relatively bipartisan efforts on education reform could be seen as an effort along these lines. The 9/11 attacks had the additional effect of largely uniting Americans behind him, and he at least sounded bipartisan tones during much of the response to the terror attacks. Related to this, as Julia Azari has noted, is that presidents whose elections are in dispute are often quite aggressive in claiming mandates for their agendas. This doesn’t necessarily involve reaching out to the other party’s voters, but it is a way of affirmatively addressing the legitimacy problem.
Another approach is to simply do nothing and assume that the legitimacy problem will take care of itself. That is, perhaps the American people understand that sometimes the popular vote loser will win the presidency, but they will still accept that person as president so long as the rest of the political system does the same. And we saw evidence of that in Bush’s first term as well. Members of Congress treated him as president. Outgoing President Bill Clinton and his family accepted the Bushes into the White House and gave them the traditional tour. Bush was duly sworn in through the traditional ceremonies. People still accepted bills signed by the president as laws, and Bush’s authority was generally honored without massive resistance.
There is a third approach to the seriousness of a legitimacy crisis: to minimize challenges to the regime by limiting the majority party’s access to the polls.
I should be clear here that the current Republican Party’s legitimacy problem goes well beyond Donald Trump‘s popular vote loss in 2016. It extends to the facts that:
- Trump ran for office repeatedly claiming that the electoral system was rigged.
- There is broad agreement among the United States intelligence community that Russia interfered with the election to advantage Trump. A Senate panel recently confirmed this, and then several Republican senators chose to spend Independence Day in Moscow.
- The Federal Bureau of Investigation’s director waded into the election.
- The majority party in the Senate represents a minority of the nation’s voters. (Representation inequalities are particularly acute in this chamber. As Brendan Nyhan recently noted, Los Angeles County contains more people than 43 states representing 86 senators.)
- The majority party in the House of Representatives was recently elected by a minority of the nation’s voters. (That could happen again this year.)
- Nearly half of the conservative-leaning Supreme Court will soon have been named by losers of the popular vote.
- Democrats have won the popular vote in six of the past seven presidential elections.
Essentially, every branch of the federal government is facing some sort of legitimacy crisis now. We don’t know exactly where the legitimacy breaking point is—people still acknowledge the jurisdiction of the federal government, people use American currency and generally operate as though the system is functional, candidates still file to run for office in elections believed to be fair and open. But it seems likely that we’re closer to that breaking point than we’ve been in a long time.
And the current GOP’s approach has generally been to double down on the illegitimacy problem by making it harder for Democrats to vote—passing voter ID laws, purging the rolls of infrequent voters, reducing the number of polling stations, limiting early voting, and so forth. Republicans are settling in to be the minority party in power for many years to come, and they are increasingly testing many voters’ faith in the system.
Again, the Constitution allows for popular vote losers to become president, just as it allows for senators representing sparsely populated states to outvote those representing far more people. But there are dangers when those conditions exist too frequently and for too long, and there are further dangers in exacerbating those conditions. Whether you want to call the U.S. a democracy or a republic or anything else, it is a system that rests on democratic legitimacy to operate. If people come to doubt that legitimacy, the consequences could be profound.
