Partisan bias in the Constitution? Check the data

The results of the 2020 census and reapportionment have been out now for several weeks. Yet…there is no noise. Where are the recriminations? The looming lawsuits? The cries of “unfair”? “Undemocratic”?

The reader may recall that, in the wake of the 2000 and 2016 elections, many critics cried foul because George W. Bush and Donald Trump were elected president despite receiving fewer popular votes than their Democratic opponents. This was due to the workings of the Electoral College which, according to the constitution, determines who wins presidential elections — not the popular vote. The allocation of electoral votes is based on the number of seats each state holds in the House of Representatives and the Senate. Accordingly, the fewest electoral votes a state can have is three — one for its member of congress and two for its senators.

Critics have contended that this results in an unfair, pro-Republican bias because, generally, smaller states tend to vote for Republican presidential candidates and elect Republican senators. Since the Constitution guarantees every state one member of Congress and two senators regardless of how small their populations may be, this occasionally results in bizarre election results such as 2000 and 2016. But, is this unfair? A systematic pro-Republican bias? A rigging of the American political system?

No. It is simply the working of nonpartisan, apolitical constitutional math.

There is no doubt that the guaranty of one House member and two senators enables smaller states such as Wyoming and Vermont to punch above their weight in Congress and in the Electoral College. If we simply divided the U.S. population equally among the 435 congressional districts, each would hold about 766,000 people according to the latest census. But, since each state is entitled to one representative, states such as Wyoming (population 577,719) and Vermont (643,503) have more bang for the buck in Congress than they would be entitled to under a “fair” division process. But, that is the price to pay for living in a federal country.

This process has, on occasion, been the subject of Supreme Court cases. In 1992, Montana sued to get the process changed because it had received only one seat in the House for its 803,000 residents. Meanwhile, Rhode Island received two seats for its 1,005,000 residents. The Supreme Court dismissed the challenge saying that while the result was unfortunate, it was not unconstitutional. No mathematical formula can serve 50 states of different states equally all of the time. But, since the formula bears no clear bias, there was no reason to declare it unconstitutional simply because one state didn’t like the way it worked.

No doubt there is disagreement about this. Critics contend that the Electoral College and the system of apportionment on which it is based should be reformed to make both fairer. Reforms would ensure that small states could not deliver presidential victories to Trumps or Bushes and ensure that they would not hold Congress hostage by wielding their disproportionate power in the Senate. But calling for structural reform because one is disappointed with a particular outcome is as unwise as it is myopic.

With few exceptions, the Electoral College has elected the winner of the popular vote throughout U.S. history. It may appear that there is a Republican bias in recent elections. But that is due to contemporary demographic changes and migration patterns — not some ancient scheme to ensure 21st century GOP victories. Furthermore, the apportionment process on which it is based changes. So, after the 2020 census, Montana is the most overrepresented state in the House of Representatives. The apportionment formula awarded it two seats for its 1,085,000 residents. So, it has one seat for 542,500 people. Delaware is now underrepresented with only one seat for its 990,837 residents. Needless to say, Montana is no longer interested in declaring the apportionment process unconstitutional.

Furthermore, the data belie any claims of partisan bias. The most overrepresented states as a result of the census are now Montana, Rhode Island, Wyoming, and Vermont. Two went for Biden and two went for Trump in 2020. The most underrepresented states are also some of the smallest. Delaware, Idaho, West Virginia, and South Dakota have the largest population to House seat ratios. Three went Republican in 2020. This is hardly the stuff of a system rigged to deliver presidencies to GOP candidates and hardly an indication that, somehow, the USA is a democratic failure.

In fact, if one looks around the globe, this pattern of overrepresenting smaller states is quite common. In the United Nations, every country gets one vote. In Canada, voters in Prince Edward Island and Nunavut get much more voting back for the buck than their counterparts in British Columbia or Ontario. In the European Parliament, German citizens are radically underrepresented in comparison to Belgians, Latvians or Lithuanians. Without noting these facts, many criticisms of American democracy are myopic at best and disingenuous at worst.

The lesson from all of this is that when reading criticisms of American democracy, it is vital to apply those principles of critical thinking that are the hallmark of American higher education. They are a cure for analytical and nationalist myopia.

Mark Rush is the Stanley D. and Nikki Waxberg Professor of Politics and Law at Washington & Lee University in Lexington, Va.