By early last week, a race once too close to call had become almost too close to comprehend. More than 2.2 million people cast a ballot in Virginia's contest for attorney general, but by Monday morning, Republican Mark Obenshain led Democrat Mark Herring by only 17 votes — a lead that appeared to vanish by week's end, when Herring inched ahead by 164 votes.
Localities submitted their final tallies on Tuesday; the State Board of Elections has until Nov. 25 to certify the results. Whatever the final figure, a recount seems inevitable. Discrepancies in absentee ballot returns, irregularities in Richmond, a malfunctioning optical-scan machine in Fairfax and math errors elsewhere raise the odds of litigation. December might ring with echoes of Bush/Gore, albeit without the butterfly ballots and hanging chads.
This year's election seems to be going out of its way to prove Winston Churchill's observation that democracy is the worst form of government, except for all the others. In Bush/Gore, the margin of victory was smaller than the margin of error, and the Supreme Court decided the contest. Even if the results in the AG race prove more concrete, the winner — whoever it is — will be able to claim a majority only in the narrowest possible sense.
A mere 43 percent of registered Virginia voters cast a ballot this year. Even if the winners received 100 percent of the votes, they still would have the support of less than half the electorate. In the governor's race, Terry McAuliffe won only 48 percent, making him the first governor to enter office with a plurality in half a century. His 48 percent of the 43 percent who voted gives him the support of only 20 percent of the state's electorate — and that is before you take into account the fact that, according to one poll, 64 percent of his supporters said they really were voting against Republican Ken Cuccinelli, rather than for McAuliffe. If the poll is accurate, then less than one voter in 10 cast an affirmative ballot in the Democrat's favor.
And yet someone has to be governor, so it is on such slender reeds as these that history is built. McAuliffe might not have won the Executive Mansion were not the current occupant, Bob McDonnell, sidelined by an ethics scandal that spattered Cuccinelli as well. McDonnell himself probably would not be governor had he not beaten Creigh Deeds for attorney general eight years ago by 360 votes, or one one-hundredth of 1 percent.
Narrow elections can have broad consequences, and the consequences of this year's race for attorney general go beyond teeing up a gubernatorial candidate in 2017. Consider how the state's political and policy landscape would look now if Virginia had spent the past four years with Democrat Steve Shannon, rather than Cuccinelli, running the Attorney General's Office. The differences between Herring and Obenshain are probably just as stark.
It seems odd, therefore, that so much of such great significance should depend on so few votes. Majority rule makes sense, but just barely. The principle of one vote per person is egalitarian, yet it does not take into account considerations such as intensity: The vote of someone who flips a coin before casting a ballot carries just as much weight as the vote of someone who believes the fate of all future generations hangs in the balance, and 51 coin-flippers can overrule 49 voters of the second type, simply because that is how things are done.
Over time, many political theorists, from James Buchanan and Gordon Tullock to Lani Guinier, have wrestled with issues such as these, and some places (London, San Francisco) use instant-runoff voting, or IRV — a system in which voters rank their selections to reflect their preferences more accurately. (IRV has its own pitfalls.) And some questions are walled off from majority rule entirely — e.g., fundamental constitutional rights. Freedom of speech, for instance, cannot be abridged simply because a majority would like to shut someone up. Primary rules like that — rules about what sort of rules we will have — are enforced by the judiciary, whose members generally are not elected, precisely in order to insulate them from majority rule.
Majority rule is at best unsatisfying, and narrow majorities are even more unsatisfying — but this does not mean wide victory margins indicate broad support. Eleven years ago, Iraqi dictator Saddam Hussein "won" an "election" with 100 percent turnout by a margin of 11 million votes to zero.
This year, many Virginia lawmakers won lopsided majorities against nominal opposition thanks to gerrymandered districts in contests that were never in doubt. Many lawmakers in Congress routinely do the same. Gerrymandering has given us a country where most people like their congressman but despise Congress. But even without gerrymandering, half the country is primed to despise whoever wins the presidency from the moment he or she enters the Oval Office.
Great innovations should not be forced on slender majorities, said Jefferson, but from the Iraq war to Obamacare, they almost always are. For those who care about the consent of the governed, that is one more reason to limit government's scope: Democracy is just about the worst way possible to run a country. Except, of course, for all the others.
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