AuthorDiller, Paul A.

INTRODUCTION 136 I. FIRST-PAST-THE-POST, SINGLE-MEMBER DISTRICTS AND THE POTENTIAL FOR MINORITY RULE. 142 A. Intentional Partisan Gerrymandering 144 B. Geospatial Political Sorting and "Unintentional Gerrymandering" 152 C. Previous Attempts to Remedy Political Gerrymandering 160 II. THE FRA MODEL FOR MOVING AWAY FROM FPP SMD IN THE STATES 168 A. The (Federal) Fair Representation Act 170 B. Adapting the FRA to the state level 172 C. Potential Legal Obstacles to RCV 177 III. EVALUATING TEST STATES FOR FRA-LIKE REFORM 177 IV. VOTING RIGHTS ACT CONCERNS 182 CONCLUSION 184 INTRODUCTION

At the federal and state levels, American government suffers from a crisis of legitimacy. At the federal level, the electoral college and the Senate's egregious deviation from a one-person, one-vote norm can enable minority rule, or at least stunt majoritarian governance. (1) Minority rule and stunted majoritarian governance are also significant problems in many states, even if their causes are more subtle. Gerrymandering and the uneven translation of votes into seats has entrenched political parties in control of the legislature in many states across election cycles despite often lacking a majority of statewide support. In some states--particularly those that lack direct democracy--the normal political process cannot break this cycle. In these states, elections often do not have consequences in terms of being a vehicle for influencing state legislative outcomes, or at least not the democratically legitimate consequences one might expect. Indeed, a political party is capable of retaining control of one or both legislative chambers in certain states despite overwhelming and consistent losses of the cumulative vote total for either chamber. Given the power that state legislatures wield over their residents, as well as most states' broad authority to preempt local governments, a minority is often capable of both setting state policy and overriding the policies of lower levels of government. In many states, therefore, the state government--particularly, the legislature--leans decidedly minoritarian, while in others majoritarianism may be muted by the legislature's distorted makeup. (2)

A significant factor in the minoritarian nature of many state legislatures is the widespread use of first-past-the-post, single-member districts ("FPP SMDs") to determine the winners of legislative seats. (3) FPP SMDs do not ensure that the views of those who vote for a losing candidate are heard. It is theoretically possible, after all, in a two-party system, for all of the candidates representing Party A to win each state legislative district by a vote of 51 to 49% over the candidates of Party B. In such a scenario, Party A would gain 100% of the seats with only 51% of the cumulative vote. Party B would have zero representation in the state legislature, despite having substantial support among the voting public. The seats-votes disparity--that is, the degree to which a party's seats in the legislature diverge from its share of the popular vote--would be massive. Few, if any, would consider such an outcome, repeated on a consistent basis, healthy for a liberal democracy. (4)

While that extreme scenario has not materialized in recent years, a more subtle variation thereof occurs consistently in several states. In states such as Michigan and Wisconsin, for instance, the Republican Party repeatedly controls--in Wisconsin, overwhelmingly controls--the state legislature despite significant cumulative losses in some state legislative elections in the last decade. In other states, such as North Carolina, Republicans maintained control of the legislature despite pro-Democratic "waves" like in 2018. In Colorado, Nevada, Rhode Island, and Vermont, by contrast, districting has favored Democrats in the state legislature in the last decade.

A significant cause of seats-votes disparity in many states is intentional partisan gerrymandering, which is the process whereby a party in power draws districts to maximize its seat yield. Partisan gerrymandering usually combines two techniques: "packing" voters who generally support the opposing political party into fewer districts that the opposing party's candidates win overwhelmingly, and "cracking" other voters who generally support the opposing political party into districts in which they constitute an electoral minority. (5) For example, a gerrymander of 30 seats in favor of Party A might allow Party B to win 8 seats in safe districts with between 70 and 95% of the vote, Party A to win 18 seats in less safe, but still not particularly competitive districts, with between 55 and 70% of the vote, while allowing for only 4 truly competitive, "swing" districts. Even in a "wave" year in its direction, therefore, Party B would likely win only 12 seats and still be in the minority.

While gerrymandering has been around since the dawn of the Republic, (6) it has recently reached new heights--or perhaps more appropriately, depths--as political parties and their consultants can now predict voting behavior with unprecedented accuracy. Hence, complete control of a districting process by one party, unchecked by any enforceable legal constraints, allows for the manipulation of FPP SMD's to overrepresent one party in the state legislature. For this reason, advocates have pushed for years to make the districting process more neutral and fair, with the cause taking on increased urgency in the last two decades.

Reformers have sought, with some distinct but limited successes, to stymie partisan gerrymandering through both litigation and law reform. With respect to litigation, the Supreme Court in 2019, by a vote of five to four, quashed the long-running effort to recognize federal constitutional constraints on political gerry-mandering. (7) Barring a significant, unexpected change in the Court's composition, federal litigation regarding partisan gerrymandering is a dead letter for at least the near future. (8)

Though partisan gerrymandering claims are non-justiciable in federal court, anti-gerrymandering reformers have achieved some success in contesting politically motivated districting under state constitutions. In Pennsylvania, Florida, and North Carolina, state courts have found that certain districting plans violate state constitutional guarantees of free and fair elections. (9)

Reformers' other strategy of enacting positive statutory or constitutional change to reform the districting process has also succeeded to some extent in the last decade. In the 2018 election cycle alone, voters in five states--Colorado, Michigan, Missouri, Ohio, and Utah--adopted statutory or constitutional changes to their districting processes, with Virginia following in 2020. (10) These changes follow successful efforts in Arizona, California, and Florida within the previous decade to remove or reduce political influence on the districting process. (11) With scant exceptions, the states that have passed districting reform have done so through direct democracy. Although their reforms vary in their particulars, most states' new systems remove districting decisions from the legislature's domain and vest them within a politically balanced or apolitical districting commission. (12)

Another significant cause of unrepresentative state legislatures in many states is the effect that the geographic distribution of each major political party's voters has on the legislature's makeup within an FPP SMD system. As Stanford political scientist Jonathan Rodden convincingly demonstrates, urban parties of the "left" are uniquely disadvantaged by FPP SMD, even in the absence of intentional partisan gerrymandering. (13) FPP SMD systems result in "unintentional gerrymandering," whereby supporters of left parties clustered in densely populated urban areas "waste" proportionally more votes in winning seats. Hence, for those concerned by the consistent deviation between the cumulative popular vote for a party's candidates and the corresponding legislative seat count, there is only so much that can be done within the confines of FPP SMD. Taking the politics out of districting may shrink the seats-votes disparity, but as long as there is a geographic cleavage between two major political parties' support, as currently exists in much of the United States, FPP SMD institutionalizes a disadvantage for the urban-favored party.

Proportional representation ("PR"), used in many of the world's other democracies, is one obvious solution to FPP SMD's seats-votes disparity. If applied to state legislatures, PR would mean that voters would select a particular party that fields a slate of candidates. (14) The seats would then be apportioned based on the party's percentage of the vote total. Most PR systems use a threshold cutoff to exclude fringe parties. In Israel, for instance, a party must receive at least 3.25% of the total vote to receive any seats in the Knesset. (15) For that reason, even with PR, a party's seat total may not exactly reflect its vote total. But to the extent that there are advantages in any of the party's geographical spreads, they do not translate into a seat advantage in PR. 50% of the statewide vote would lead to (approximately) 50% of the total seats. (16)

Despite its advantages, critics fault PR for enabling parties to wield outsized support due to their role in making or breaking a majority coalition necessary to govern. By rewarding parties with relatively low levels of support with some seats, as opposed to no seats as in a two-party, FPP SMD system, PR often leads to a greater diversity of viable political parties. (17) Hence, a party that receives 45% of the vote may have to share power with a party that garnered a mere 6% in order to cobble together a majority of seats necessary to govern. In exchange for its support, the minor party may be able to extract serious concessions that skew the majority government's policies more toward the 6% than the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT