Republican unified government and the Constitution

If you were surprised by the results of the United States elections, you are not alone. The unexpected election of Republican candidate Donald Trump to the Presidency, and the somewhat less surprising retention of both houses of Congress by the party, could give the Republican Party great control over the agenda in Washington for at least the next two years.

The current count gives Mr Trump 290 electoral votes to 223 for Democrat Hillary Clinton, with Michigan yet to be declared (Mr Trump has a narrow lead). This margin of victory in the College is comfortable enough that one or two 'faithless electors' (members of the Electoral College who do not vote with the candidate they were affiliated with on the ballot paper) could not deny Mr Trump victory. This is despite Mrs Clinton being likely to receive the most votes nationwide.

In the Senate, the Republican Party held marginal seats in Wisconsin, Indiana, Florida, Pennsylvania and North Carolina. The Democrats picked up Illinois and New Hampshire, but this was not enough to defeat the 54-44-2 (independents caucusing with Democrats) majority the Republicans held going in to the election.

Louisiana's Senate seat is yet to be decided; this state holds an election in which all candidates from all parties participate on Election Day; if no candidate secures a majority, a runoff will take place on December 10. This runoff will be between Republican John Kennedy, who won 25% of the vote in the first round, and Democrat Foster Campbell, who won 17%. In total, Republican candidates won 61% of the vote, so it looks likely that Mr Kennedy will win the seat, and the Republican majority will be 52-46-2.

In the House of Representatives, the Republicans appear to have lost seats, going from 247 to a current estimate of 239. Nonetheless, this is still a fairly comfortable majority. It is unclear how many votes the Republicans will end up winning; their House majority in 2012 of was off 47% of the vote compared to 48.4% for the Democrats; the politicised nature of drawing districts for House seats in the United States, combined with strong Republican control over state governments, means that congressional districts in several states have been drawn to apparently favour the Republican Party.

With such an apparently strong position, the Grand Old Party has defied expectations of doom. And now, some have expressed their concern that the Republican Party's strong hold over state legislatures could allow them to amend the Constitution.

Btw you need 3/4 of the state governments in order to amend the constitution. GOP is just shy of that rn. https://t.co/WIoeqOnSVk

— Arthur Chu (@arthur_affect) November 14, 2016

How is the United States Constitution amended?

The United States has been noted for having a rigid, hard-to-amend Constitution. The most common method of amendment is approval by two-thirds of both houses of Congress, followed by ratification by 75% of state legislatures.

In this sense, Mr Chu and those expressing similar concerns are correct. Only thirteen state legislatures are controlled by Democrats. Thirty-eight states are needed for ratification (since 75%*50=37.5, and 37 is less than this), and thirteen legislatures failing to ratify would indeed be the minimum required to block legislation. However, most states have bicameral legislatures, and one house would be sufficient to block ratification of an amendment. In this case, the Democrat position looks more secure. Democrats control one chamber in a further three states, meaning that an amendment on purely partisan lines would be somewhat more difficult than simply overturning the one most marginal Democratic legislature.

However, before the amendment process gets to the point of ratification by the States, approval by Congress is required. This would be the point where the content of an amendment would become somewhat relevant.

What sort of amendment would the Republicans wish to pass?

There are a number of amendments that senior members of the Republican Party, as well as Mr Trump, have either suggested their support for or implied their support for. Nonetheless, it is important to note at this point that unlike in Westminster countries, United States political parties are not nearly as internally disciplined. In most cases, registration and identification as a Republican or Democrat is done on voter registration forms, and there is relatively little control by party organisations over who is nominated. This means that there are substantial ideological differences between members of political parties. Various organisations compile 'ideology scores' that show these differences; as can be seen here.

One briefly popular idea for an amendment was the 'Federal Marriage Amendment', which would have required that all marriages in the United States be between a man and a woman. At the time when this amendment was most popular, several states had introduced same-sex marriage, and socially conservative federal Republicans were opposed to this. In the time since then, however, same-sex marriage has been legalised for the entire United States in the Obergefell v. Hodges case, and same-sex marriage has also earned public approval. The President-Elect, too, has expressed disinterest in the issue, describing it as "settled".

Another proposal, though much more on the fringe, is a constitutional amendment to ban abortion. This proposal has not been substantially discussed, but has occasionally been introduced into Congress as a means to overrule the decision of the Supreme Court in Roe v. Wade in 1974 that the United States Constitution protects abortion rights regardless of federal or state law. Nonetheless, such a proposal would be difficult to pass compared to the easier option of appointing judges to the Supreme Court that would rule in favour of abortion restrictions (approval of a judge requires only a majority in the Senate, compared to the sixty-six votes needed for an amendment). The President-Elect has declared himself in favour of this course of action.

A proposal supported less by the Republican Party than by Mr Trump is the idea that libel laws in the United States should be "opened up". Constitutional amendment could be required to achieve this aim, but other members of the Republican Party do not appear to have expressed views on the subject, implying that it is a pet project of Mr Trump's. This would make it very difficult indeed to amend the Constitution, given the non-existent institutional role the President is given in the amendment process.

Partisan ability to amend

Ignoring the actual content of any amendment, what would it take, however, for Republicans to win enough seats in Congress to theoretically amend the Constitution? In the Senate, Republicans would need to gain fourteen seats; in the House, fifty-one.

It has been noted before that in the Senate, the Democrats face a difficult map. Two United States Senators are elected from each state for six-year terms, with staggered terms meaning that a different group of States vote for Senators every two years. Below is a table showing the different Senators that will be up at the 2018 midterm elections for Congress.

As you can see, more than half of the Democratic caucus will be up for election in 2018. This is because 2012, when these Senators were last up for election, was a successful year for the Democrats, as Senators from the same party as the victorious presidential candidate (that year, Democrat Barack Obama) generally do well. Ten Democrats (assuming Mr Trump's narrow lead in Michigan survives) will be up for election in states Mr Trump won; only one Republican is in a similar position.

Nonetheless, a fourteen-seat gain would be a tough ask for the Republicans. That would involve unseating every single Democrat in a state Mr Trump won, as well as four from states won by Mrs Clinton (most of whom are relatively safe) and holding all of their incumbents. Democrats in red states, like Senators Manchin and Heitkamp, also tend to use the internal ideological flexibility given to them allows them to express views more attuned to the views of their states (both are considered to be on the right-wing of their party, which is reflected by the aforementioned ideology scores); Mrs Clinton had to appeal to more mainstream Democratic voters.

In the House, current counting has the fifty-first most marginal seat (assuming a uniform swing, the most Democratic district the Republicans would need to win) as Massachusetts' 9th district, won by Democrat Bill Keating with 56% of the vote with 34% for his Republican opponent. House members are elected for two-year terms, and will all be up for election in 2018. Now, this way of measuring the likelihood of such an upset has its flaws; it does not take into account potential changes in districts, and assumes a uniform anti-Democratic swing, which given internal ideological diversity would probably not happen. But it nonetheless represents the difficulty inherent for such a swing.

All this would be presumably expected to happen in a midterm election. Midterms are generally bad for the party holding the Presidency, since voters may view it as a way to punish or restrain an existing President without throwing them out of office.

Source: Dave Leip's Atlas of US Elections

Now, clearly, the Republicans could hold on to their unified government at the 2020 presidential and general election. However, more Republicans in the Senate need to be defended at this election, based on a stronger Republican result in 2014. The best prospect for large gains for the Republicans remains the 2018 midterms.

Conclusion

The 2016 election unexpectedly resulted in unified government for the Republican Party, under a controversial and radical leader. A Democratic weakness in the states that developed under Barack Obama's presidency has led some to conclude that this result can not only allow the Republicans to make their preferred legislation, but to amend the Constitution. Nonetheless, these claims are somewhat exaggerated, even at the state level. The likelihood of an amendment passing would depend on its content, but assuming complete Republican unity on such an amendment, the party would need to gain an unfeasible number of seats in order to make changes.

The United States Electoral College and third party candidates

As most of my readers will know, elections to the Presidency of the United States, as well as approximately a third of the Senate, the entire House of Representatives, and various other state and local offices will be up for election on November 8 (by tradition, the first Tuesday in November).

While primaries for some lower-level offices are yet to take place, Presidential candidates for both major parties have been chosen through a series of primaries and caucuses. The Democrats have chosen Hillary Clinton, the early favourite, though she faced a stiff challenge from left-wing Bernie Sanders. On the other hand, a crowded Republican field narrowed to one candidate; controversial businessman Donald Trump, who had little support from the party leadership, won the nomination.

Trump's views represent a substantial diversion from traditional Republican thinking on a variety of issues. The most notable one of these is free trade; Mr Trump is opposed to it, but Republicans have traditionally supported free trade. Trump's tax plan is also a bone of controversy; while it would reduce tax rates, normally something the Republicans would support, it also does not make cuts to government programs like Medicare (health insurance for the elderly) and Social Security (the government retirement program), thus meaning that the deficit would increase.

These two issues have led a number of Republicans to look elsewhere in the presidential field. While some will vote for Ms Clinton, one other candidate gaining traction is Gary Johnson, of the Libertarian Party. The Libertarians have normally been a very minor political presence in the United States; occasionally winning a seat in state legislatures. The party's best performances have been in Senate and House elections when support for either the Republicans or Democrats in a state or district is so overwhelming that only one of the major parties puts up a candidate; when a Libertarian runs in one of these seats, they normally win a substantial share of the vote.

This year, Mr Johnson is currently polling at around 6-8% in national polls. Mr Johnson receiving support from dissatisfied Republicans is no doubt helped by his credentials as a Republican; he served as the Republican governor of New Mexico, and his running mate William Weld served as the governor of Massachusetts, also as a Republican. While this does not look like much, it would represent the strongest performance ever, by a long way, for a Libertarian in a presidential election.

Some Democrats are also not wholly happy with Hillary Clinton. Some supporters of Sanders, a self-declared democratic socialist, view Ms Clinton as too right-wing, and are also looking elsewhere. This has caused a much more muted increase in support for Green Party candidate Jill Stein. Not all polls include Ms Stein, but those that do mostly show her receiving 2-4% support; a low figure, but a substantial increase over the 0.36% she received in 2012 (though she was not on the ballot in all states at this election).

Minor candidates and Presidential elections

In countries where a President is elected, there are two main ways this is normally done; the plurality system, or the two-round system.

Under the plurality system, voters vote for one candidate, and the candidate with the most candidates is elected. Such a system is used in Taiwan, South Korea, and Venezuela, amongst others. In a close nationwide race, this system has a tendency to lead to two main contenders, as supporters of any weaker third candidate would have strong tactical incentives to vote for the member of the top two they most prefer.

However, when voters do not do this, the system can lead to candidates from one political faction being elected despite a majority of the electorate not supporting that faction. For example, at the Taiwanese presidential election in 2000, the pro-Taiwanese independence Democratic Progressive Party nominated Chen Shui-bian, who won 39.3% of the vote. However, two candidates from the opposing bloc (generally in favour of Chinese reunification) ran; the Nationalist candidate Lien Chan won 23.1%, and independent James Soong won 36.8%. For this reason, despite an apparent majority of voters supporting a pro-unification President, the pro-independence candidate won.

Most countries that have an elected President use a runoff system. Under such a system, voters vote for one candidate in the first round. If one candidate receives a majority, that candidate is elected; if not, a second round takes place, normally a couple of weeks after the first, when voters choose between the top two (in most cases) candidates.

This means that there is no incentive for tactically abandoning your most preferred candidate for the lesser of two evils in the first round, as unless a candidate in the first round wins 50%+1 (in which case choosing the lesser of two evils would not have mattered) you will be able to make that choice in the second round.

However, such a system can have its disadvantages. For example, at the 2002 French presidential election, the centre-right Union for a Popular Movement candidate, incumbent President Jacques Chirac won 20% of the vote. It was expected that he would face Socialist candidate Lionel Jospin in the second round, but a large number of left-leaning voters voted for other leftists in the first round; for example, the Workers' Struggle candidate won 5.7%, the Green won 5.2%, and the Communist won 3.4%. This meant that Jospin received only 16.2%, behind far-right candidate Jean Le Pen, who won 16.9%.

In the runoff, leftists voted for Chirac over Le Pen, resulting in Chirac winning 82% of the vote. These results demonstrate that there are still incentives for tactical voting under a two-round system; a voter may tactically vote to make the opponent of their most preferred candidate in the runoff an unpalatable radical.

The United States has a somewhat different, and currently unique, manner of electing the President. Each state is allocated a number of 'electors' equivalent to the number of members that state has in the House of Representatives and Senate combined. Each state has two Senators, regardless of size, but the number of members each state has in the House is proportional to its population. This method of allocation over-represents smaller States; for example, the state of Montana has 341,333 people per elector, but the state of California has 705,454 people per elector.

This means that on Election Day, voters are not voting for a presidential candidate, but rather electors who pledge to vote for that presidential candidate. There have been cases in the past where these electors have not voted for the candidate they were listed on the ballot for, though this has never changed the outcome of a presidential election.

Potential incentives of the Electoral College

So, what incentives would the Electoral College have, in terms of small party candidates? Well, over time, certain parties have become wholly dominant in states. For example, the Democratic Party has won the state of Massachusetts, in nearly all cases with a double-digit margin of victory, in all elections since 1984. The same goes for the Republican Party in Texas. This is why presidential elections are focused on swing states; those states where the race between the top two candidates is especially close, like Pennsylvania and Florida. Winning extra votes in a safe state is irrelevant, as the number of electoral votes (which are what matter) do not change. 

If you live in a safe state, even if there is a close vote nationwide, you have no incentive to tactically vote to support the 'lesser of two evils', given that the winner of your state is virtually determined in advance. In theory, then, people in safe states should be more willing to vote for third party candidates, given that there is little danger of them 'wasting their vote' and electing someone they dislike.

But does this work in practice? Let's look at two third-party candidates who were both totally unlikely to win; John Anderson in 1980 and Ross Perot in 1996. Mr Anderson was a moderate Republican congressman opposed to the right-wing views of party nominee Ronald Reagan, while Mr Perot was a populist businessman running on a platform of deficit reduction. Perot had run in 1992, but this campaign may not have had the same tactical messaging for the voters, since Perot was in first place in some early polls.

The below charts show a comparison between the vote shares for these candidates by state, compared to the margin between the top two candidates, which represents how close a state was.

There is something of a correlation between the two factors, with the correlation being stronger with Perot than with Anderson (the precise correlation factor being 0.13 for Anderson and 0.30 for Perot). However, there are many other factors which vary these numbers, and it is still quite a weak correlation, which makes it somewhat difficult to draw any conclusions.

It is interesting, though, to consider the states that the third party candidates will do best in. Mr Johnson has public profile in New Mexico, which, though it has been quite close in the past, was comfortably in the Democrat column in 2012 (a margin of ten points to Obama). The state's high Hispanic population is also unlikely to approve of Mr Trump's rhetoric on immigration, which would mean that both campaigns would be sensible to ignore the state.

Mr Johnson's running mate, Mr Weld, is the former governor of Massachusetts, a very safe Democratic state (despite the Republican candidate for President coming from the state, it went Democratic by 23 points). While these two cannot choose their home states, for the Libertarians their states make them sensible nominees, as their home state boosts will not be cancelled out by tactical voting.

The lower statewide profile of the Green ticket (Ms Stein has run for Governor of her home state of Massachusetts, but with little success, and her highest office remains being in the Lexington town meeting, while her running mate Ajamu Baraka does not appear to have run for any office) makes this factor less relevant for them. Nonetheless, it will help Ms Stein somewhat that the state where she has the most profile (relatively speaking) is a safe state, where she will have somewhat clearer air to campaign.