Chew on this for a moment: Nationwide, Democrats received more than a half million more votes for the House of Representatives than Republicans did. But despite getting fewer overall votes, Republicans captured 55 percent of the House seats.
If the United States were really as democratic as it aspires to be, John Boehner would be House Minority Leader, not Speaker of the House, Nancy Pelosi would be Speaker, and Democrats would control the House, the Senate and the presidency.
When John Boehner and other Republicans like Grover Norquist claim that voters maybe gave President Obama a mandate to raise taxes on the wealthy, but voters also gave the House Republican caucus a mandate to block the President's efforts, Democrats should have no hesitation to call out Boehner to the media and the public on this simple fact.
Imagine if, as at point seemed possible, President Obama had won the presidency with a majority of the electoral vote and a minority of the popular vote. Republicans would be screaming bloody murder that Obama had no mandate, and indeed, questioning the very legitimacy of his presidency.
Democrats need be no more polite about Boehner's lack of democratic legitimacy. It may be difficult for President Obama himself to publically call Boehner on this (although he can certainly do so privately). But in the coming battle over taxes, the budget and jobs, the likes of Vice President Biden, Democratic House and Senate leaders, and representatives of progressive organizations should not hesitate to vigorously call out House Republican and remind the media and the public that House Republicans represent a minority of voters. When House Republicans again take hostages -- as they did with the budget ceiling in the summer of 2012 -- Democrats needs to scream bloody murder that the hostages are not only the President and Democrats in Congress, but a majority of the American voters who expressed their will for a different result.
How did this travesty of democracy happen? In recent years, particularly after the 2010 midterms, Republican-controlled state legislators gerrymandered Congressional districts to the max in order to all but guarantee they would garner a majority of House members in their states with a only minority of votes.
For example, in John Boehner's home state of Ohio, Democrats received more than 125,000 more votes for their House candidates than did Republicans, but Republicans won 12 of the state's 16 House seats, 75 percent of the Ohio's House seats, with a minority of the vote. In Pennsylvania, which Barack Obama won by 52 percent to Romney's 46.8 percent, and which Democratic Senator Bob Casey defeated his Republican challenger by 53.6 percent to 44.7 percent, Republicans won 13 of the state's 18 House seats for over 72 percent of the House seats.
As the eminent law professor Geoffrey Stone argued recently in these pages, quoting former Supreme Court Justice John Paul Stevens, the government cannot constitutionally "gerrymander for the purposes of helping the majority party; the government should be redistricting for the purpose of creating appropriate legislative districts." Unfortunately in the case of Vieth v. Jeblirer in 2004, four conservative Justices joined an opinion by Justice Scalia that the Supreme Court had no jurisdiction over partisan gerrymandering while Justice Kennedy concurred in the result but left some opening for future challenges.
As with Citizens United, the five-Justice conservative majority has made the United States a less democratic nation. Perhaps, if President Obama or another Democratic President gets to replace one of the conservative justices, we might one day have a Supreme Court more sympathetic to rule of, by and for the people.
In the meantime, every time Republicans claim that their majority of House seats gives them a mandate to block President Obama, Democrats must scream from the rafters that only a minority of voters put them there.