Constitution Check: Is the U.S. House of Representatives unrepresentative?
Elbridge Gerry, father of gerrymandering.
Lyle Denniston looks at the complicated issue of gerrymandering, and what constitutional issues lie ahead for the process of drawing up congressional districts to favor a political party.
The statement at issue:
“As a new Congress convenes, it has become an unquestioned truth among Republicans that their party has as much of a mandate as President Obama because voters returned them to power in the House….There is a certain logic in saying that the voters, by giving Republicans the House, were asking for divided government. But the claim to represent the voters’ will doesn’t add up. The final results from the November election were completed Friday, and they show that Democratic candidates for the House outpolled Republicans nationwide by nearly 1.4 million votes and more than a full percentage point….Even if Democratic congressional candidates won the popular vote by seven percent points nationwide, they still would not have gained control of the House.”
– Dana Milbank, Washington Post writer, in an opinion page article on January 6. The full article, “Republicans’ stacked deck in the House,” is available here.
We checked the Constitution, and…
When the Founders created a new Congress in 1787, they compromised: the House of Representatives would be composed of those elected to represent the people, and the Senate would be made up of representatives of the states. There is nothing in the document, originally or as amended, that guarantees that either the House or the Senate will represent the nation as a whole.
Constitutionally, there is only one federal officer who is chosen by the people altogether: the president. But even the president actually only represents a majority of the votes cast by the Electoral College, whose members are the ones chosen by the people state by state.
If the Constitution were intended to put into place some democratic ideal, perhaps it should insist that a party could not control the House unless it was truly representative of the nation, but that was not the choice. The Founders wanted representatives to be directly chosen, but by “the people of the several states.” They did not specify how that was to be done, leaving that to the states to decide.
The states have chosen to elect members of the House from single-member districts, supposedly making those who are chosen “representative” of those districts. It is true that a member of the House cannot be elected in a district unless he or she actually wins a majority or at least a plurality of the votes cast. But there is no requirement that all those eligible to vote do cast their ballots, and yet the one chosen does represent everyone in the district, voter or not.
It is not just a statistical anomaly, however, that the House of Representatives in the new Congress has a majority of Republicans who, collectively, got fewer total votes than the elected Democratic minority. There is an explanation, and it goes by a word that an unknown political analyst coined exactly 200 years ago: “gerrymander.”
In 1812, the governor of Massachusetts, Eldridge Gerry, signed into law a new map for state senate election districts that was said to represent an awkwardly shaped salamander. Gerry, of course, was no stranger to the Founding: He had been at the Philadelphia Constitutional Convention, and played a major role there, although he wound up refusing to sign the document that emerged because it had no Bill of Rights.
In history, there have been two kinds of “gerrymanders”: racial and political. The Supreme Court has ruled that arranging districts to give an advantage, or impose a disadvantage, on voters of one race is unconstitutional. But the court, although considering the issue several times, has never struck down the arrangement of districts to give an advantage with the voters to one major political party at the expense of the other major party.
About Constitution Check
In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.
After Republicans won control of a majority of the nation’s state legislatures in the 2010 elections, they made energetic use of the political, or partisan, variety of gerrymandering. They put Republican voters in control of more districts, and packed Democratic voters into fewer districts. (Democrats, of course, do the same things in the state legislatures they control, but in 2010 and since, they were at a disadvantage nationwide.)
The result, as The Washington Post’s Milbank pointed out in his column, was typified by these outcomes: the Republicans won 13 of 18 House seats in Pennsylvania, eight of 11 in Virginia, and 12 of 16 in Ohio. In each of those three states, the voters gave President Obama a victory and thus those states’ Electoral College votes.
Although the Massachusetts gerrymander in 1812 resulted in a district that looked very strange, indeed, it is possible for legislatures now to draw districts to favor one political party over another, but the resulting districts often do not look very awkward at all.
That is because the map-drawers are working with highly sophisticated computer programs, which can identify the partisan preferences of voters down to the neighborhood level, and in doing so identify pockets of party strength or weakness. (President Obama’s campaign team was adept at that same kind of voter sentiment measuring, and targeted their appeals accordingly, to the president’s obvious benefit.)
Political commentators have often suggested now that computer science allows the politicians to pick the voters, rather than the reverse. And constitutional critics often argue that this is but another example of the anti-majoritarian character of the system as it now exists.
Is there a constitutional problem with partisan gerrymandering? The answer to that depends upon how one defines the constitutional norm that one thinks should be the American standard. Is party favoritism a civic vice or a virtue? How does one define when partisan redistricting goes too far? If the House should be more representative nationwide, how can 435 districts across the nation be drawn to achieve that? If change is desired, can it come without a constitutional amendment, or can the legislatures be persuaded to give up–or at least to moderate–their partisan ambitions?
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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