We tend to think of our country as a democracy, where “The People”– through the majority of the voters–rule. This, of course, is not completely true for many aspects of our government. The United States Senate is a prime example. The candidate who gets the most votes in a state becomes the Senator. This seems democratic enough until we realize that a minority of voters nationwide choose the majority of the Senators. Since each state, no matter how large or small its population, gets two and only two Senators, the overall composition of the body is markedly malapportioned. This, of course, is mandated by the Constitution.

Other less-then-democratic rules, however, are not constitutionally mandated but result from various political strictures and practices. Thus, the filibuster rule grants a minority of the already malapportioned Senate to dictate outcomes. In both Houses, committee chairs can determine what can be voted on, and this can defeat the will of the majority in those bodies. And so on.

We know that a minority of the voters can elect a president. That is partly because of the electoral college, which our constitutional founders gave us. In addition, however, the nonconstitutionally-mandated decision rule increases the likelihood of a minority president. Most states have decided that all its electoral votes will go to the candidate who gets the most votes. This is not constitutionally required, and at the beginning of our Republic, it was not the usual method for allocating electoral votes. Instead, states often split those votes, but now only a few states do that. So if I win a state with a large number of electors by a handful of votes, but I lose a state with a lesser number of electors by a significant amount, I may be behind in the popular vote but ahead in the crucial electoral count. The Constitution is silent on this outcome.

There is another decision rule, however, that can affect whether we have a minority president: the presence of third parties. In key swing states in 2016, Trump won not by getting a majority of the ballots. In most states he did not poll better than the Republican Romney had four years before. Instead, the third-party share of the votes increased, and Hillary Clinton got fewer votes in some states than Obama had four years earlier. In Pennsylvania, Wisconsin, and Michigan, Trump got the plurality, not the majority, and got all the electoral votes. We don’t know, of course, what would have happened had the third parties not been on the ballot, but we should realize that the rules allowing candidates on the ballot matters. The more candidates on the ballot, the less likely it is that “The People”–i.e., the majority–control. These rules matter and vary from state to state, but few of us know what they are or whether they should be changed.

Primaries, especially in safe districts, also affect majority rule. By a “safe” district, I mean those in which it is all but certain that one party will win the general election. I reside in a place where a Democrat always wins the House, the state legislative, and the city seats. The November election is a mere formality. The only truly important election is the primary because it will determine which Democrat will run. I am hardly unique in living in such a place. A few years back I read a study with a sobering statistic: while 25% of the House seats were safe several decades ago, that number had increased to 60%. With unrestrained and more sophisticated gerrymandering, that percentage is even higher now.

Almost everywhere, the turnout for primaries is lower than for general elections, even when the general election is functionally meaningless. This can mean that a tiny fraction of the people determine who will have governmental power, but the situation can be even more striking when a primary is contested with several viable candidates. The rules are not uniform for deciding the outcome of such contests. I have voted under several different systems in New York City alone. In some primaries, a candidate polling over 40% moves on to the general election, but if they do not reach that threshold, another primary is held between the top two candidates. “Ranked choice” is now used for some New York primaries, and I would explain that to you if I could, but I am like most New Yorkers who, even though voting to adopt this system, do not fully understand how it works. But in some New York primaries, a simple plurality controls. (Oh, yes, New York City is a complicated place.)

New York has just completed primaries for the House of Representatives. New districts were drawn as a result of the last census which caused the state to lose one seat in the national legislature and made for some interesting primaries. Two sitting House members were thrown together in one district and faced each other in one primary. Another district did not have an incumbent and a half-dozen interesting candidates ran for the Democratic seat in the plurality-controlled contest. The winner polled 25.7% garnering fewer than 17,000 votes. And in what is almost certainly a safe seat, he will be going to the House in January. In other words, 17,000 people will have picked the new Representative. “The People,” I guess, have spoken.

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