Founder's Follies VII: Reverse Democracy

This is the seventh installment of Chredon's analysis of the making of the Constitution, and where the Founders went wrong. For background, see the previous issues:

Issue I: The Founders' World - Historical context of the Constitution

Issue II: The Confederate Period - The failure of the Articles of Confederation

Issue III: Washington and Madison - The Father of our Country and the Father of the Constitution

Issue IV: The Constitutional Convention - The Primary Issues at Philadelphia Convention

Other Topics of Discussion:

Issue V: Bobbing for Senators - Was the Seventeenth Amendment Really a Good Idea?

Issue VI: The Two-Party System - Wise Creation, or Dismal Unintended Consequence?

Elbridge Gerry

 This article is devoted to Founding Father Elbridge Gerry. Largely forgotten to history, Elbridge Gerry had quite an illustrious career as an early patriot and legislator. He used his personal wealth and connections to supply the Continental Army as it held Boston under siege. He is one of only six men who were present for both the Second Continental Congress, during which he signed the Declaration of Independence, and the Philadelphia Convention, during which he helped draft the Constitution. He was instrumental in the creation of the Bill of Rights, primarily by refusing to sign the Constitution until after the Bill had been attached. He later went on to serve in the House of Representatives, as Governor of Massachusetts, and as the fifth Vice-President of the United States under James Madison.

But in our modern politics, his name is remembered mostly for one thing - gerrymandering.

The Gerry-mander

In 1812, while he was Governor of Massachusetts, the legislature of that state drew some controversial Congressional districts designed to give more Representatives of Gerry's Democratic-Republican Party while leaving fewer for the Federalist Party, despite the population being almost evenly split. A Federalist-leaning newspaper published a famous picture of one of the districts which wound through the northern and western edges of Essex County and resembled a salamander. The paper dubbed it the 'Gerry-mander,' though there is no evidence that Governor Gerry had any hand in drawing the lines. It was still a fairly radical idea, and the Federalists used attacks on the process to oust Gerry in the next election.

(Historical Note: Governor Gerry's last name is pronounced with a hard G, as in Golf. Our modern pronunciation of the word 'gerrymander' tends to use a soft G, as in Giant.)

I titled this Founders' Follies issue Reverse Democracy because that is what gerrymandering is. In a representative democracy, such as we theoretically have here in the USA, voters are supposed to choose their representatives. Gerrymandering makes it possible for representatives to choose their voters. This is done in practically every state in the Union, since it allows the political party that holds a majority in the state legislature to align the state's districts in order to give advantages to their party in the House of Representatives. Gerrymandering is also used in the apportionment of state representatives' districts, thereby guaranteeing continued party majorities in the state legislatures.

The impact of this process is that the vast majority of Americans don't really have any choice in who represents them in the House. According to FairVote.org, of the 435 House seats, 195 are safe for Republicans, 166 are safe for Democrats, and only 74 are really in play. The same is true for any state that has districts drawn for elections of state representatives. Unless you are one of the 15-20% of voters who live in a swing district, your vote is pointless. And with every passing census, the ability to draw safe districts increases as computer technology advances and information about individual households becomes more readily available to partisan redistricting efforts. (After the 2000 census, there were 89 swing districts, fifteen more than today.)

But wait, you say. Doesn't the House change hands every few years? It may seem so in the past election or two, but historically, it does not change that often and it usually takes a seismic event to turn it. Since 1900, control of the House has changed 10 times out of 57 elections. In the history of the United States, through 112 Congresses, it has changed 26 times. And the pattern is clear - there are long periods of single-party control, broken up by several back-and-forth elections as policies and parties are in flux. Except for the 80th and 83rd Congress just after World War II, the Democrats controlled the House from 1931 until 1995. Since the Civil War, House control has changed hands only 14 times.

Brief Description of Gerrymandering - Skip if you are already familiar

(NOTE: I updated this from my original. I found a brief and very clear description of the process at electoral-vote.com that was much better than my original.)

Here is a brief primer on how the process works.

Imagine a state with 1.5 million Democrats and 1.5 million Republicans and 6 seats in the House. A fair map would be something like this, with 250,000 Democrats and 250,000 Republicans in each of the six districts. Each icon represents 100,000 voters.

But a Republican legislature that wanted to maximize its representation in the House might draw the boundaries differently, for example like this.

In this map, districts 1-5 have 300,000 Republicans and 200,000 Democrats, so the Republican candidate can probably win, assuming he doesn't spend the whole campaign talking about rape. But we have 500,000 Democrats left over, so they get stuffed into district 6, which probably needs a strange shape to include them all. If the map looks like this, the Republicans can easily win five of the districts and won't bother to even field a candidate in district 6. With voting totals available on a precinct level, computer software can produce statewide maps that maximize the partisan advantage for one side. Here are some actual district maps drawn in 2010.

Illinois Congressional District 4, which includes a narrow strip of land along I294, creates a majority-Hispanic district.

North Carolina District 12, which winds across the central portions of the state,  to create a predominantly liberal African-American district.

California District 23, which winds along the Pacific coastline, creates a district with an extremely high proportion of Democrats, allowing multiple Republican districts inland.

These are only a few of the more oddly-shaped districts. Gerrymandered districts don't have to look so crazy, though. Some highly-partisan districts look perfectly sane.

The Problem with Gerrymandering

The main issues that people have with gerrymandering are:

1. It disenfranchises voters by making elections meaningless. The winner is chosen by the party who drew the districts, not the citizens who cast the votes.
2. Voters feel powerless. After all, why bother to vote if the outcome is already chosen?
3. Incumbents are nearly impossible to remove, no matter how bad they are.
4. Districts do not reflect groups with common interests.
5. Districts are drawn without regard to existing political structures, like counties or cities.
6. The partisan make-up of Congress does not match the partisan make-up of the people.
7. Third party candidates have no chance of winning.

Is this a Founder's Folly?

Did the Founders make a mistake? That's hard to say. Their only mistake is that they did not anticipate the strength of national political parties nor did they see how the institutions as they created them would inevitably lead to a two-party system. Madison believed that in a nation so wide and diverse, it was practically impossible that any party would ever emerge that was not regional in nature. Given that they were so far apart, these regional parties would never have common-enough interests that they would ever combine. Thus, no national parties would ever emerge. Madison said:

The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a Republican Government, the majority if united have always an opportunity. The only remedy is to enlarge the sphere, and thereby divide the community into so great a number of interests and parties, that in the first place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the second place that in case they should have such an interest, they may not be apt to unite in the pursuit of it.

This is one of the few times when Madison was dead wrong. He did not envision the 'common interest' of controlling the national legislature as something parties might desire. You don't need nation-spanning cable TV networks to form a national party. In fact, Madison was ignoring the nation's recent history. Had the United States not just won a war against Britain that was begun because small groups of like-minded patriots were able to organize all across the continent?

Another problem is that the House has the power to tell the states how they are to handle elections - though they were never supposed to use it except in extraordinary circumstances. Article I, Section 4 of the Constitution states:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

This really is the key phrase of the Constitution where the redistricting process is concerned. The Constitution gave the state legislatures the power to choose how their Representatives would be chosen, but then gave Congress the power to pass laws to override the states' plans. And override them they did. Apportionment Acts began as early as 1790. (In fact, the Apportionment Act of 1790 was the first bill to be hit with a Presidential veto.)

According to Alexander Hamilton In The Federalist Papers, #52, the goal of the construction within the Constitution was to give the power of selection to the states, with the national government given power to overrule the states in those cases where their method of selection was harmful to the Republic.

A discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been preferred by the convention. They have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.

According to Madison's notes on the Constitutional Convention, the only reason that the House was given any power at all over the methods by which the election would be conducted was to prevent abuse that might arise should the state decide to choose Representatives in some way that violated the will of the people. Madison himself said:

The legislatures of the states ought not to have the uncontrolled right of regulating the times, places, and manner, of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot, or viva voce, should assemble at this place or that place, should be divided into districts, or all meet at one place, should all vote for all the representatives, or all in a district vote for a number allotted to the district,—these, and many other points, would depend on the legislatures, and might materially affect the appointments.

Madison did, however, note that it seemed to make no sense to question the ability of the state legislatures to properly devise the method by which Representatives would be chosen while at the same time trusting them to select Senators and to devise methods of choosing Electors for the office of President.

This provision, then, was to be a fail-safe measure to prevent the states from doing something that violated the spirit of Republican democracy. There were several nightmare scenarios suggested, such as a state simply not holding elections at all, in effect withdrawing from the Union. Or a state might decide that all votes had to be cast in person at a single meeting, which would be held in the most populous city of the state, thus guaranteeing that one city the majority of the representatives.

But the provision was almost immediately used, not as a fail-safe, but as a way for the national legislature to impose regulations and restrictions on state elections that today violate the spirit of Republican democracy. Early attempts to do so were challenged, but upheld by the Supreme Court. This is one of many cases where the letter of the law is not in keeping with the spirit of the law, and the letter of the law won out.

Thus, the House would pass, with each Census, rules covering the apportionment of the House members. In some years, single-member districts (such as we have today) were mandated. In other years, there were no districts and all states were free to elect their Representatives however they wanted. In some years, laws required districts to be contiguous or to have equal population. These went back and forth often. It was not until 1967 that Congress passed the laws by which districts are currently allocated, requiring contiguous borders, equal population, and some districts drawn for the purpose of gaining racial parity in Congress equal to the state population.

(FairVote.org has a brief history of the legislation around creating Congressional Districts and its impacts.)

While Madison and the Framers couldn't envision the power of national parties and how gerrymandering would subvert the electoral process, even the Congress of 1967 could not envision the power of today's computing systems and the massive amounts of data on individuals available to them. Gerrymandering has become much more of a science than an art. With the House requiring single-member districts and the states free to draw them as they wish, the status quo could remain with us indefinitely.

In the next issue, Got to Draw the Line Somewhere, I will take a look at some potential solutions for the gerrymandering issue and how they could be implemented.