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
 
FREE EXCERPT
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
(continued)

To continue reading

FREE SIGN UP