Founder's Follies VIII: Got to Draw the Line Somewhere

This is the eighth 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?

Issue VII: Reverse Democracy - Should Representatives Choose their Voters.

In Issue VII, Reverse Democracy, we looked at Gerrymandering - the process by which our State Legislatures get to decide who will represent us in the US House by drawing Congressional districts for partisan victories. This was, perhaps, an oversight on the part of the Founders. 

The question remains - can this be fixed?

Well, it could be fixed. It would not require a Constitutional amendment to get rid of gerrymandering for seats in the House - all it would take is for the House to either stop requiring single-member districts (leaving the states free to experiment with other options for electing Representatives) or for them to change the rules by which such districts are drawn so that they can no longer be drawn for partisan advantage. But don't count on Congress to do what is necessary to fix it. After all, gerrymandering protects the incumbents. You shouldn't expect them to change the rules to their own detriment.

Nor would I bet on a Constitutional Amendment to fix it. It would require two-thirds of both Houses of Congress to pass the Amendment. If you can't get a simple majority to change the rules, I doubt you can get a two-thirds super-majority to do so, either. And as for calling a Constitutional Convention, no thanks - nobody wants to open that can of worms.

However, the Constitution may contains the wording needed to get a Supreme Court ruling to end partisan gerrymandering. In Article I, Section 2, we find this:

The House of Representatives shall be composed of members chosen every second year by the people of the several states

I think a case could be made that partisan gerrymandering violates this wording, since the vote of the people is pointless when the state legislatures have already chosen the party that will win the district. Sadly, no group is attempting to challenge gerrymandering on these grounds.

The Fourteenth Amendment, Section 1, says this:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

I think it could be equally argued that partisan gerrymandering is a case of the states enforcing a law (specifically, the Apportionment Act of 1967) that abridges the privileges of the citizens. Whether either of these is a legally-valid argument is a question for lawyers - I have no skill at counting the angels that dance on the head of a pin. But I would certainly like to see someone (the ACLU, perhaps) give it a try.

But if we take away Congress' power to decide how districts must be drawn, to whom should it be given? One suggestion would be to leave it in the hands of the states themselves, which, of course, was the original intent of the Founders.

Unfortunately, if we leave the apportionment process in the hands of the states, the leaders of the state parties will use it for partisan advantage in ways that might be even worse than our current system. For example, a state with a 60% majority for any party might choose to elect every Representative in a state-wide at-large vote. That would nearly guarantee that all of that state's representatives would be of the majority party and the 40% of voters from other parties would be totally unrepresented. States that had a more balanced electorate might use our current system. But none would choose a system that might give a third party a chance to win a seat, or that would guarantee that representation in Congress was proportional to that of the population.

So this is a situation in which we must be very careful. The solution to the current gerrymandering problem could be worse than what we have now.

What Are the Options?

The United States is not the only nation to have faced this issue. Many groups in the US advocate for methods that are used in other countries. Some propose new ways of drawing districts. Other do away with districts altogether. In the best methods, the goal is to have Congress match the electorate in terms of partisan participation. (If 10% of voters are Libertarians, 10% of the House should be Libertarians.)

Here are a few changes that have been proposed.

Different Voting Methods

Cumulative Voting: There are no districts. All people running for Representative are listed together on the ballot, and voters get a number of votes equal to the number of candidates. They can put as many votes on each candidate as they like - spread them out or concentrate them all on one. Votes are counted and the top recipients get the seats.

Single Transferable Vote: There are no districts. All candidates are listed together on the ballot, and voters choose their top N candidates in order, where N is the number of open seats. Each candidate needs to receive a number of votes equal to the number of voters divided by the number of seats. Everyone's top choice is counted. If any candidates receive more votes than needed, their remaining votes are split among the #2 candidates on the ballot by the proportion of their appearance. This is repeated until splitting a winning candidate's excess votes no longer creates a new winner. Then, you take the candidate with the fewest votes and distribute them to the highest-choice candidate who is not already a winner. This method of voting is used in many places around the world.

The problem with these two ideas is that in a state like California, where there are 53 Representatives, it would be unreasonable to expect voters to know enough about 200 or more potential candidates to make an informed choice. Also, in states like New York and Illinois, where one major city holds the vast majority of the state population, city voters would take a disproportional number of seats, leaving rural voters unrepresented.

Different District Allocation Methods

If we don't want to radically change the voting method, then the alternative is to change how we draw the districts. Since I used North Carolina's 12th district as an example of bad gerrymandering, I'll use NC as the examples below. For reference, here are the current districts.

  

Shortest Straight Line: Since NC has 13 Congressional Districts, the state is divided, using the shortest straight line possible, such that 7/13ths of the population is on one side and 6/13ths on the other. Then each of these regions are divided, again using the shortest straight line possible, and again and again, until you have a number of equally-populated regions. Here is the result, courtesy of Range Voting :

Minimum Centroid Distance: The state is divided into districts such that the total distance of each person in the state to the center of their district is minimized. Here is the result, courtesy of Brian Olsen's Redistricting:

The problem with these two methods is that the districts created will often divide even small communities into two or more districts, denying the idea of people with similar local interests voting for the same candidates. (This is a problem with the current system as well.)

Fewest Split Counties: In this method, the result that splits the fewest counties is selected. Since there will obviously be multiple options, you choose the one that splits a county most evenly. Here is an example, courtesy of Daily Kos:

Here is another that I drew myself using Dave's Redistricting Application.

FairVote.org proposes a hybrid system, where larger states are divided into regions with similar numbers of representatives (up to 5) and then does a Single Transferable Vote process within the regions. Here is a suggestion of how NC might be divided into regions:

In this plan, the eastern and western regions receive four Representatives each, while the center section, which contains the densely-populated Charlotte, Raleigh, Durham, and Greensboro metro areas receive five. All three mega-districts have recent voting records in which neither party received more than 58% of the vote, which leads to a greater chance the vote will be split 7/6, which is in line with the state's 53/47 partisan split. (Current gerrymandered districts split the state 10/3 with no swing districts at all.)

As you can tell by the descriptions, none of these methods take partisan factors into consideration. Districts are either drawn by a computer algorithm and left as they are drawn, or drawn based on county divisions. In either case, they are drawn without regard to partisan considerations.

In Conclusion

With apologies to Patriot, Governor, and Vice-President Gerry, your accidental namesake is one of the banes of the nation. The idea that membership in the House of Representatives should be chosen by the Representatives themselves, working through their allies in the states, is reprehensible and goes against every ideal of democratic government. Solutions exist, but convincing our current Representatives to take advantage of them will be difficult, given that the current plan protects incumbents.

Chredon would like to acknowledge the contributions of FairVote.org for background information on this article and Dave's Redistricting Application for the maps drawn and included above.