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Once every four years, the world’s attention gets focussed on the US presidential election and this time round, on the peculiarities of that country’s venerable constitution. In 2016, Donald Trump won the election despite winning three million fewer votes than his Democratic rival Hillary Clinton. The 232-year-old constitution provides that the winner is the one who secures a majority in the electoral college, to which delegates are selected in a non-proportional system – states with low populations get more delegates than the number of voters would warrant. Most of these states nowadays are Republican and George W Bush won narrowly in the electoral college in the 2000 election with a popular vote minority. The election is scheduled for next Tuesday 3 November and, while Joe Biden is well ahead in the polls, a revival for Donald Trump could see him win again even though Mr Biden looks sure to lead in the popular vote.
This non-proportionality also affects elections to the Senate and would not be tolerated in many countries – in Ireland, the High Court ruled in 1958 that only a small tolerance from equality can be allowed in the ratio of seats to population in Dáil elections.
The US Senate is a powerful chamber, more so than its Irish equivalent
A constituency revision had been proposed which would have given extra seats to rural districts with few voters, denounced as “votes for trees” and was overturned, deemed to be inconsistent with the constitution.
In the United States, the constitution provides that each of the states, currently 50 in number, elects two senators, of whom there are thus precisely 100. The US Senate is a powerful chamber, more so than its Irish equivalent.
The House of Representatives is also important and is elected on a more proportional basis.
The Democrats normally win a majority in the House but are up against it in the Senate. The smallest state, Wyoming, has under 600,000 people while the largest, California, has 39m. Each of the Wyoming senators represents 294,000 people while the California pair represent 19.6m each. If you think of the United States as the home of democracy, think again.
Imagine if Leitrim had the same representation in our parliament as Dublin. The Dáil has 160 members and there are 26 counties. If the allocation of seats were organised as it is for the US Senate, Leitrim would have six TDs for its 32,000 people and so would Dublin, for 1.4m.
The US had a population of just 2.5m on its foundation in 1776, versus 331m today
The disproportionality sounds quite weird, 44 times better representation for Leitrim, but is below the score for California versus Wyoming. The latter state gets 65 times more seats in the Senate than it ought to get if every vote was equal.
The US had a population of just 2.5m on its foundation in 1776, versus 331m today. There were just 13 states, less unequal in size than are today’s 50. In more recent decades the smaller states have mostly gone Republican while the heavily populated states vote mostly for the Democrats.
The constitutional entitlement of the states to equal numbers of senators has become frankly ridiculous but the Republican party is not complaining. The real problem is the difficulty in revising the US constitution.
All constitutions contain a provision governing the process of amendment, sometimes by parliament, in Ireland and many other countries by referendum. In the US, it is virtually impossible to change the constitution. It requires a two-thirds majority in both houses of congress, so just 34 senators out of 100 can block any change.
There have been proposals to simply create more states – Puerto Rico could be offered statehood, as could the capitol territory of Washington DC
The Republicans will hardly ever do that badly and can hardly be expected to mobilise their small-state senators to vote for the abolition of their seats. To make matters worse, any change requires three-quarters of the 50 states to support the measure.
There have been proposals to simply create more states – Puerto Rico could be offered statehood, as could the capitol territory of Washington DC, which does not have any senators. Both would vote Democrat, which would even things up a little. But the most democratic thing to do would be to scrap the rules about how the constitution itself is to be revised, which would require large numbers of turkeys to vote for Christmas.
The lesson is that ancient constitutions (Ireland’s 83-year-old basic law is one of Europe’s oldest) are fine provided there are viable procedures for making changes
If Biden wins the popular vote but Trump manages to come close in the electoral college, the election outcome could end up in the courts as happened in 2000, a mess which would be avoided with a simple amendment saying that whoever gets the most votes nationally is the winner. The lesson is that ancient constitutions (Ireland’s 83-year-old basic law is one of Europe’s oldest) are fine provided there are viable procedures for making changes. In the US, this is simply not the case. The polls favour Biden but the inadequacies of the US constitution will not go away with a Democratic victory.
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