Geoffrey R. Stone: Why Did the Republicans Win the House?

I recently overheard the following conversation:

X: “Obama won a solid victory. The people have made their views clear. They stand with the Democratic Party.”

Y: “Not so fast. Remember that the Republicans won a big margin in the House of Representatives. It’s really a split-decision.”

This is interesting. How could the Republicans have won 55 percent of the House seats at the same time that Mitt Romney received only 48 percent of the popular vote? Did that many people split their vote? It turns out the answer is “no.”

Although the Republicans won 55 percent of the House seats, they received less than half of the votes for members of the House of Representatives. Indeed, more than half-a-million more Americans voted for Democratic House candidates than for Republicans House candidates. There was no split-decision. The Democrats won both the presidential election and the House election. But the Republicans won 55 percent of the seats in the House. This seems crazy. How could this be?

This answer lies in the 2010 election, in which Republicans won control of a substantial majority of state governments. They then used that power to re-draw congressional district lines in such a way as to maximize the Republican outcome in the 2012 House election.

To give a simple example, imagine four neighboring congressional districts, two of which are 60 percent Democratic and two of which are 60 percent Republican. One would expect that each party would win two seats in the House. But if the Republican state legislature re-draws the district lines so as to make one district 100 percent Democratic, and the other three districts each 67 percent Republican, then instead of each party winning two representatives, the Republicans will win in three of the four districts.

It was by engaging in such “partisan gerrymandering” that the Republican Party was able to turn a Republican defeat in terms of the national popular vote for members of the House into a significant Republican “victory” in terms of the number of Republicans elected. In Pennsylvania, for example, although citizens cast almost 100,000 more votes for Democratic than Republican candidates for the House, partisan gerrymandering enabled Republicans to 12 of the 18 seats in the House of Representatives.

Thus, that the Republicans will control the House for the next two years tells us nothing about how the American people voted on Tuesday, and a lot about how the Republican Party misused its political power in the state legislatures to manipulate the election and frustrate the will of the people.

I hasten to add that the partisan gerrymander is hardly the distinctive province of contemporary Republicans. Politicians of all parties have used the gerrymander from the very beginning of the republic to gain political advantage. Indeed, the word “gerrymander” was used for the first time almost exactly two hundred years ago in the Boston Gazette on March 26, 1812. The term was invented to mock Governor Elbridge Gerry’s redrawing of Massachusetts’ election districts to benefit his political party. The word was a combination of the Governor’s last name and the shape of one of his more oddly shaped districts, which resembled a salamander.

Long-standing or not, partisan gerrymandering is — and always has been — an unhealthy part of our political process. As illustrated by the fact that John Boehner will be Speaker of the House for the next two years — even though his party lost the election by half-a-million votes, partisan gerrymandering undermines democracy. Our constitutional system is premised on the assumption that elected officials should not use the powers of governance in order to manipulate the rules of the game to ensure their own perpetuation in power. Such conduct threatens the very integrity of democratic governance.

Although partisan gerrymandering has been with us from the beginning, it is now worse than ever, because computer modeling enables legislators to design districts that almost precisely maximize their political advantage. The question is: What can we do about it?

The obvious solution is to take the responsibility for drawing district lines out of the hands of elected officials. Several states have already done this by establishing independent commissions that perform this task. This is the approach used in other nations, such as England and Australia. This is clearly a preferable system.

The problem, though, is that the party in control of a state government at any particular moment in time is not eager to change the rules in this way. After all, why should they enact a neutral system that would cause them to lose the power to draw district lines in a way that works to their own advantage? Needless to say, it is unfortunate that legislators put short-term partisan interest above the long-term interest of their citizens, but that, sadly, is too often the nature of politics.

This is a perfect situation for the Supreme Court to break the gridlock. The Court faced a similar situation in the 1960s with the issue of malappportionment. At that time, many states had legislative districts with widely varying numbers of residents. In the typical situation, district lines had been drawn decades earlier when many more people lived in rural areas.

As the population gradually moved predominantly to cities, the lines should have been withdrawn, but legislators from rural districts refused to do so. As a result, situations arose throughout the nation in which an urban district might have ten times as many residents as a rural district, but both had one representative. It was impossible for the states to fix this situation themselves, because the rural districts refused to draw new lines that would reduce their power.

In this situation, the Supreme Court stepped in and held that the Constitution guarantees equal voting rights. It therefore required states to redraw district lines in conformity with the principle of “one person, one vote.” All districts in a state, in other words, would have to have approximately the same number of residents. Without the Court’s intervention, this dilemma might never have been solved.

The Court should intervene in the context of partisan gerrymandering, where the underlying problem is similar. As Justice John Paul Stevens has observed, the government cannot constitutionally “gerrymander for the purpose of helping the majority party; the government should be redistricting for the purpose of creating appropriate legislative districts.”

In fact, the issue has often been before the Court, but although the more liberal Justices like Brennan, Marshall, Stevens, and Ginsburg have consistently argued that partisan gerrymandering is unconstitutional, the conservative majority — Rehnquist, Scalia, Kennedy, Thomas, Roberts and Alito — have steadfastly refused to invalidate partisan gerrymanders.

Why did the Republicans win the House of Representatives? Don’t ask the American people. They didn’t do it.

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