It has by now been widely reported by The New York Times and others that a “panel of federal judges
struck down North Carolina’s congressional map on Tuesday, condemning it as
unconstitutional because Republicans had drawn the map seeking a political
advantage.” [1]
Let it be clearly understood that this is not simply the court’s interpretation
of the goings on in North Carolina, but an indisputable fact. As the court
pointed out,
“Legislative Defendants do not dispute that the General
Assembly intended for the 2016 Plan to favor supporters of Republican
candidates and disfavor supporters of non-Republican candidates. Nor could
they. The Republican-controlled North Carolina General Assembly expressly
directed the legislators and consultant responsible for drawing the 2016 Plan
to rely on ‘political data’—past election results specifying whether, and to what
extent, particular voting districts had favored Republican or Democratic
candidates, and therefore were likely to do so in the future—to draw a
districting plan that would ensure Republican candidates would prevail in the
vast majority of the state’s congressional districts.” [2]
You read that correctly. The state’s district map was drawn
with the specific and open intention of favoring Republican candidates for
Congress. In fact, “the state legislator responsible for drawing the 2016 Plan
said he drew the map to advantage Republican candidates because he ‘think[s]
electing Republicans is better than electing Democrats.’”
“But,” the court said, “that is not a choice the
Constitution allows legislative mapdrawers to make. Rather, ‘the core principle
of [our] republican government [is] that the voters should choose their
representatives, not the other way around.’”
Given such blatant behavior, it would have been odd if the
three-judge district court panel had not stricken down North Carolina’s
gerrymandered congressional map. And since this case is doubtlessly headed for
the Supreme Court, it will be just as odd if the high Court doesn’t deal with
the case in the same way. It is hard to conceive of how the Court could uphold
a scheme that is designed to discriminate against a group on the basis of
beliefs protected by the First Amendment.
But, sometimes we are surprised. Aren’t we?
But it is worthy of note in this connection that
gerrymandering only works for the House of Representatives. The voting area for
Senate seats can’t be gerrymandered, because senators are elected by the entire
state. The same would be true if there were no congressional districts and
members of the House were elected at-large. By this is meant that a state-wide
election would be held in which all of the candidates would compete for the
seats of a given state. In a state with three representatives, the top three
candidates in terms of votes would go to Congress to represent the state. In a
state with fifty-three representatives, the top fifty-three would win
congressional seats.
No, the Constitution doesn’t require that members of the
House be elected by district. [3]
Electing representatives on an at-large basis would be perfectly permissible
under the Constitution. Indeed it was not until 1842 that Congress enacted
legislation requiring House members to be elected by single-member districts,
and six states were electing their representatives on an at-large basis at the
time. [4]
Would this give members of more marginal parties a chance to
gain congressional seats that the current system doesn’t afford them? That could
be bad or good, depending on your perspective, and depending on what sorts of
parties increased their access. Nonetheless, we could expect the major parties
to put forth enough candidates to make sure that all of the seats are covered,
and there is no reason to suspect that people would be, because of this
proposed change in this system, more inclined to vote for third parties than
they are now. Besides, it is not at all clear that enhancing the electoral
chances of third parties is a bad thing. A Green or Libertarian here or there
would hardly be the end of the world. It is true that there are small parties
that dream of visiting some ghastliness on us all someday, such as Nazis or
full-blown Communists. But there is no reason to think that an at-large system
will make them any more popular than they are at present.
Another possible concern is that in large states it will be
difficult for people to keep track of all the candidates. That would be a
problem if the idea was that people would be casting multiple votes. But they
wouldn’t be doing that. They would only cast one vote, for the candidate they
like the best. Finding the candidate one likes best shouldn’t be too onerous.
And it will once and for all rid us of the superstition that geographic proximity
equals similar political interests. It is quite possible for a candidate who
resides on the other side of the state to represent your interests better than
one who lives next door to you.
In any event, if gerrymandering is a problem to be gotten
rid of, a good way to do that is to switch to at-large voting for members of
the House.