To End Gerrymandering: The Canadian Model for Reforming the Congressional Redistricting Process in the United States

• Author: Anthony J. Gaughan
• Position: Assistant Professor of Law, Drake University Law School
• Pages: 999-1063

TO END GERRYMANDERING: THE CANADIAN MODEL FOR

REFORMING THE CONGRESSIONAL REDISTRICTING

PROCESS IN THE UNITED STATES

ANTHONY J. GAUGHAN*

I. INTRODUCTION ........................................................................................... 1000

II. THE HISTORICAL DEVELOPMENT AND CURRENT LAW OF

CONGRESSIONAL REAPPORTIONMENT AND REDISTRICTING

IN THE UNITED STATES ............................................................................... 1001

A. The Congressional Reapportionment System: From the

Great Compromise to the Statutory Cap ......................................... 1003

1. Th e Great Compromise ......................................................... 1003

2. The Challenge of Fair Apportionment .................................. 1007

3. The Statutory Cap on the Size of the House of

Representatives ..................................................................... 1010

B. The Congressional Redistricting System: Deep in the

Political Thicket ............................................................................... 1015

1. The Times, Places, and Manner of Holding Elections .......... 1015

2. Into th e Political Thicket ....................................................... 1020

III. A SYSTEM HIGHLY VULNERABLE TO POLITIC AL MISCHIEF ........................ 1025

A. The Statutory Cap: Defying the Spirit and Intent

of the Constitution ........................................................................... 1026

B. The Gerrymandered Republic: Placing Partisanship over

Democratic Accountability .............................................................. 1029

C. A Worsening Problem: The 2012 House Elections as a

Disturbing case in Point .................................................................. 1033

IV. THE CANADIAN ALTERNAT IVE: A SENSIBLE APPROACH TO A

COMMON PROBLEM .................................................................................... 1038

A. Neighbors, Partners, and Allies ....................................................... 1038

B. A House that Grows with the Country ............................................. 1044

C. A Fiercely Competitive Electoral System ........................................ 1049

V. APPLYING CANADIA N LESSONS TO THE AMERICAN POLITICAL

SYSTEM ....................................................................................................... 1056

A. Reform by Statute, Not Constitutional Amendment ......................... 1056

B. Independent Commissions ............................................................... 1057

C. What Is the Right Number? .............................................................. 1059

VI. CONCLUSION ............................................................................................... 1063

Copyright © 2013, Anthony J. Gaughan.

* Assistant Professor of Law, Drake University Law School; J.D., 2005, Harvard

University; Ph.D. (history), 2002, University of Wisconsin-Madison; M.A., 1996, Louisiana

State University; B.A., 1993, University of Minnesota. The author would like to thank

Alexandra Frazier and James Gaughan for their research assistance on thi s project.

1000 CAPITAL UNIVERSITY LAW REVIEW [41:999

I. INTRODUCTION

In the 2012 congressional elections, Democratic candidates for the

House of Representatives carried nearly 1.4 million more votes nationwide

than Republican candidates.1 Nevertheless, Republicans captured control

of the House by a margin of 234 seats to 201.2 The undemocratic outcome

of the House elections resulted directly from America’s system of

redistricting and reapportionment.3 Partisan politics, not principles of good

government, dictate the congressional redistricting process in the vast

majority of stat es.4

Congressional apportionment law exacerbates the problem. In

particular, the statutory limit on the size of the House of Representatives5

magnifies gerrymandering’s effects more than ever before. As the

population gap between large and small states and urban and rural areas

continues to widen,6 redistricting disparities will only worsen in the years

ahead.

Accordingly, this Article proposes that Congress look to Canada as a

model for making U.S. House elections more reflective of the electorate’s

will. A nation strikingly similar to the United States in many important

respects, Canada rejected partisan gerrymandering half a century ago.7

Adopting the Canadian approach would involve two significant reforms:

first, the nationwide establishment of nonpartisan independent redistricting

commissions; and second, the restoration of decennial increases in the total

1 Dana Milbank, Republicans Stacked Deck in the House, WAS H. POST., Jan. 6, 2013, at

A15.

2 U.S. House of Representatives, 2012 House Election Results, HOUSE PRESS GALLERY

(Jan. 2, 2013), http://housepressgallery.house.gov/2012-house-election-results.

3 Griff Palmer & Michael Cooper, How Maps Helped Party Keep Edge in the House,

N.Y. TIMES, Dec. 15, 2012, at A10.

4 Robert Draper, The League of Dangerous Mapmakers, ATLANTIC, Oct. 2012, at 52

(“[R]edistricting today has become the most insidious practice in American politics—a

way . . . for our elected leaders to entrench themselves in 435 impregnable garrisons from

which they can maintain political power while avoiding demographic realities.”).

5 Apportionment Act of 1911, Pub. L. No. 62-5, 37 Stat. 13; ROYCE CROCKER, CONG.

RESEARCH SERV., R41357, THE U.S. HOUSE OF REPRESENTATIVES APPORTI ONMENT

FORMULA IN THEORY AND PRACTICE 2, 4 n.13 (2010).

6 Adam Liptak, Smaller States Find Outsize Clout Growing in Senate, N.Y. TIMES, Mar.

11, 2013, at A1.

7 John C. Courtney, Electoral Districting in the U.S.: Can Canada Help?, ISSUES IN

GOVERNANCE STUD ., June 2008, at 1, 4, http://www.brookings.edu/~/media/research/files/

papers/2008/6/electoral%20districting%20courtney/06_electoral_districting_courtney.pdf.

2013] TO END GERRYMANDERING 1001

number of seats in the House of Representatives to reflect the growing

population of the United States.

To be sure, there are aspects of the Canadian approach that would not

work in the United States. However, embracing the Canadian system’s

two key features—politically-neutral redistricting commissions and a

legislature that keeps pace with the nation’s size8—offers a solution to the

problem of increasingly manipulated election outcomes in the House of

Representatives.

This Article explains the current law of congressional redistricting and

reapportionment, assesses the main critiques of the American system,

analyzes the parliamentary redistribution process in Canada, and proposes

methods through which the United States can embrace the best features of

the Canadian system to reform the congressional redistricting process in

America.

In light of the strong similarities between Canada and the United

States, a comparative approach to the two nations’ redistricting systems

offers a particularly useful perspective. As sociologist Seymour Martin

Lipset once observed, “Looking intensively at Canada and the United

States sheds light on both of them.”9

II. THE HISTORIC AL DEVELOPMENT AND CURRENT LAW OF

CONGRESSIONAL REAPPORTIONMENT AND REDISTRICTING IN THE

UNITED STATES

The issue of representation has long been a source of contention in

American politics.10 The British Empire’s policy of taxing the American

colonies without seating colonial representatives in Parliament sparked the

American Revolution.11 When the American colonies declared their

8 See id. at 5–6.

9 SEYMOUR MARTIN LIPSET, CONTINENTAL DIVIDE: THE VALUES AND INSTITU TIONS OF

THE UNITED STATES AND CANADA, at xiii (1990). See also Miguel Schor, Constitutional

Dialogue and Judicial Supremacy 1 (Drake Univ. Legal Studies Research Paper Series,

Research Paper No. 12–02; Suffolk Univ. Law Sch. Legal Studies Research Paper Series,

Research Paper No. 10–66, 2010) , available at http://papers.ssrn.com/sol3/papers.cfm?

abstract_id=1730202 (“If scholars wish to understand the American constitutional

experience, they need to pay attention to Canada.”).

10 BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 161

(enlarged ed. 1992) (“The question of representation was the first serious intellectual

problem to come between England and th e colonies . . . .”).

11 PAULINE MAI ER, AMERICAN SCRIPTURE 118 (Vintage Books 1998) (1997) (“[The

American colonists] insisted they could be taxed only by representatives whom they had

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