Ending the Real Vote Rigging

11/07/2016 04:53 pm ET Updated Nov 07, 2016

If the polls are to be believed, Hillary Clinton is likely to be elected president, Democrats will probably capture the Senate, and Democrats will also probably win a majority of the nationwide House vote. Yet this nationwide majority is expected to translate into only about 200 seats for Democrats—compared to roughly 235 seats for Republicans. For the second time in three elections, Republicans are likely to retain control of the House despite being opposed by more than half of the electorate.

This undemocratic (or at least countermajoritarian) fact has sweeping consequences for the next two years. It means that, despite earning the support of a majority of voters, Democrats won’t be able to enact their policy agenda. They won’t be able to reform immigration, combat climate change, raise taxes on the wealthy, require paid family leave, regulate campaign finance, and so on. Instead, the federal government will remain gridlocked, with power divided between the parties even though the public preferred unified Democratic control.

Why will this happen? In a word, gerrymandering. In their landslide victory in 2010, Republicans won legislative majorities and the governorship in a host of purple (or even blueish) states: Florida, Michigan, North Carolina, Ohio, Pennsylvania, Virginia, Wisconsin, and so forth. A year later, when it was time to redraw these states’ district maps for the next decade, Republicans took full advantage of their newfound clout. They systematically cracked and packed Democratic voters—either dividing them among many districts in which they comprised sizable minorities, or concentrating them in a few districts in which they made up overwhelming majorities.

In 2012, Republicans’ cartographic efforts bore fruit. In state after state, the popular vote was closely divided but Republicans won many more House seats than did Democrats. In the seven states mentioned above, for example, Republicans earned 50%, 47%, 49%, 50%, 49%, 51%, and 49% of the statewide vote. But in these virtually tied elections, Republicans captured 17 of 27, 9 of 14, 9 of 13, 12 of 16, 13 of 18, 8 of 11, and 5 of 8 House seats. This is why, nationwide, Republicans maintained a comfortable 33-seat majority despite losing the popular vote by about two percentage points. It’s also why they’re sitting pretty today even though they’re on the cusp of being outvoted again.

In the short run, there’s nothing that can be done about gerrymandering; it’s already baked into the electoral cake. In the medium term, though, there are several options. One is for states to require that redistricting be carried out by independent commissions that don’t try to benefit either party. Commissions have a strong record in the United States, and they’re also how almost every foreign democracy designs its districts. However, self-interested politicians are entirely uninterested in giving up their mapmaking power. Voter initiatives that seek to circumvent incumbents also tend to fail and are unavailable in about half the states.

A second possibility is for Congress to mandate redistricting reform. Federal action would obviate the need for painstaking, state-by-state progress. It would also ensure that all district lines are drawn pursuant to the same criteria and by similarly constituted bodies. But precisely because of its greater potency, federal action is even more implausible. Republicans, in particular, would never agree to any proposal that threatens the gerrymandering to which they owe their House majority. And even if Democrats somehow took the House, they too might prefer the status quo they know to the brave new world of reform.

This leaves litigation as the last, best hope for change. Thirty years ago, the Supreme Court held that gerrymandering, if severe enough, violates the Constitution. Twelve years ago, the Court rejected the then-applicable standard for distinguishing lawful from unlawful plans, as well as several other suggested tests. In a separate opinion, Justice Kennedy also hinted that future challenges could be brought under the First Amendment rather than the Equal Protection Clause. And a decade ago, five Justices wrote favorably about the concept of “partisan symmetry”—the idea that a map should treat the major parties symmetrically in terms of the conversion of votes to seats.

In the last few years, litigants have latched onto both of the Court’s ideas for fighting gerrymandering. Lawsuits in Maryland and North Carolina have alleged that the states’ plans burden voters’ First Amendment rights by assigning them to districts based on their political beliefs. Similarly, suits in North Carolina and Wisconsin have claimed that the states’ maps exhibit staggering levels of partisan asymmetry—cracking and packing Democrats to a far greater degree than Republicans. The Maryland case recently survived a motion to dismiss and the Wisconsin case made it all the way to trial (with a decision still pending). These are the most promising developments in this area in a generation.

This litigation will present the Court with an interesting choice if and when it decides to grapple again with gerrymandering. The First Amendment theory implies that just about all plans enacted by parties in unified control of the state government are unconstitutional. After all, parties in this position almost always try to benefit themselves, in the process distributing voters among districts on political grounds. In contrast, the partisan symmetry theory would invalidate many fewer maps—just those with the most extreme and durable levels of asymmetry. Plans in the middle of the distribution, even if designed with partisan intent, would be left alone.

I’m skeptical that the Court, which to date has never struck down a map due to gerrymandering, will decide anytime soon to put most states’ plans in legal jeopardy (as the First Amendment approach would entail). In my view, the more limited reach of the partisan symmetry approach is thus a feature, not a bug. It would allow the Court to curb the most egregious abuses without calling into question most American redistricting.

All prognostications about the Court, though, rely in part on the Court’s composition. And the Court’s composition, of course, is perhaps the most important issue that will be decided by this election. So when voters head to the polls tomorrow, they won’t just be the passive victims of gerrymandering. For the first time in memory—through the President they choose and the Justice(s) she appoints—they’ll have the chance to strike a blow against this pernicious practice.

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