A Solution to Gerrymandering that the Founding Fathers Would Approve

07/29/2017 03:03 pm ET

The media anticipation surrounding the upcoming Supreme Court case on gerrymandering in Wisconsin is indeed charming. The case hinges upon what appears to be a consistent, simple measure that enables judges, citizens, reporters and aliens to determine quickly whether a redistricting plan is unfair.

This measure, called the “efficiency gap” is indeed consistent. But, like other such measures that political scientists, lawyers and other scholars have generated, it really does not address the reality and complexity of the redistricting process. Simply put: if you redraw district lines, voters will change their behavior. Democrats may become Republicans and vice versa. Nonvoters may choose to vote and voters may choose to stay home, depending on what the Election Day choices are in the new district.

Long ago, the political scientist V. O. Key said that voters are not fools. They think about their decisions. They are not robots either. So, they won’t vote for just any Democrat or Republican because they voted for one or the other in the last election. This should come as no surprise to anyone. Americans know this. We are a nation of ticket splitters who proudly vote for candidates—not party labels. Hence, in Virginia, liberal Democratic gun-control advocates from the D.C. suburbs would receive very few votes in even the most dependable Democratic precincts of the Southwestern part of the state.

Yet, the redistricting industry proceeds on the assumption that all votes for one party or the other are equitable. Political scientists, lawyers, economists and psychologists know that they are not. Nonetheless, they all engage in an expensive litigation process that costs taxpayers lots money and does very little for the representation or voting rights of American citizens.

The solution to gerrymandering lies not in drawing districts that a consultant pretends are fairer. The solution lies in drawing larger districts that are represented by more than one candidate.

This may seem to be a great deviation from the American political tradition. It is not. Throughout history, members of Congress were elected in multimember districts. Many states use multimember districts in their legislatures and an increasing number of cities are using multimember electoral districts.

In multimember districts, voters actually get to vote for more than one candidate. In these districts—in stark contrast to the single-member districts we use today—voters actually have real choices among diverse candidates.

This really is in keeping with the political traditions and thinking that informed the framing of the U.S. Constitution. James Madison called for a large, diverse republican government to remedy the problem posed by factions (interest groups). In a small polity, it would be easy for one group to rise up and dominate others. But, in an extended one, with many more interest groups, it would be difficult for a majority to endure for long. As a result, the majority that pushes through the road bill will be different from the one that passes the crime bill. Over time, Madison assumed, all interest groups would be able to join a majority coalition. But very few would always be in the ruling coalition. This was—and still is—the essence of democracy.

By comparison, single-member electoral districts have become exactly the sort of anti-democratic, factional menace that Madison feared. Once elected, incumbents become virtually unbeatable or unchallengeable. The astonishing reelection rate of the U.S. Congress is proof of this. Voters have almost no reason to vote because the outcome of elections in single-member districts is virtually guaranteed. Hence, there is no point voting for the incumbent. She is going to win anyway. Why waste a vote on a weak challenger? She has no chance.

Hence, turnout in Congressional elections is abysmal. In most state legislative elections, it is embarrassingly low. Yet, incumbents support the single-member district system of elections because it does, indeed, virtually ensure their reelection.

Throughout its voting rights case law, the Supreme Court has maintained several broad tenets about voting rights. Votes should be equal. Hence, the one-person, one vote rule. Votes should be meaningful and cast in an orderly, clear electoral process. Hence we look to ensure that ballots are not confusing, voter registration is fair and open, and access to the polls on Election Day is fair and easy.

Finally, voters should have an equal opportunity to elect representatives of their choice. This, in particular, arose from the Court’s interpretation of the Voting Rights Act when it struck down districting schemes designed to wipe out voting power of minority voters.

But, the single-member district electoral system no longer offers voters the chance to cast a meaningful vote or elect candidates of their choice. If an election offers the choice between an unbeatable incumbent and a hapless challenger, then voting is meaningless. Under these circumstances, there is no “candidate of choice” if there is no real choice. The single-member district is antithetical to the Supreme Court’s vision.

A few weeks ago, two unlikely political allies wrote an important op-ed in the New York Times in which they called for an end to the single-member district. Rob Richie, Executive Director of Fairvote and Reihan Salam, his counterpart at The National Review called for electoral reform here. When the political left and right agree that the electoral system is undermining democracy, voters should pay heed—because their incumbent representatives will turn a deaf ear to anything that threatens the status quo.

In calling for multimember district elections, Richie and Salam hearkened back to Madison. Multimember districts will offer voters more choices from among a broad array of candidates. Voters will not be faced with one, meaningless choice. Candidates and parties will be forced to moderate and build bridges in order to succeed in larger, more diverse districts. Incumbents will be forced to campaign vigorously and remain attentive to their constituents because their reelection will no longer be assured.

Sometimes, a solution can be simple. In this case, a very simple solution—larger districts—will improve the quality of American democracy and re-establish the Madisonian principles that informed the Constitutional system.

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