I recently received a provocative email from James Allison, a retired Professor of Psychology, suggesting an approach to the elimination of gerrymandering that I had never contemplated.
After noting the Supreme Court’s unconscionable refusal to find extreme gerrymandering a constitutional violation (ruling 5/4 that partisan gerrymandering was a “political question” best left to the political process!), Allison quoted a recent proposal for just such a political solution.
In a recent op-ed in the Washington Post, Lee Hamilton, William S. Cohen and Alton Frye served notice: Although partisan gerrymanders may lie beyond the reformist reach of federal courts, and beyond the conscience of gerrymandering statehouse legislators, they are well within the grasp of Congress (July 17, 2020). Specifically, the House can “refuse to seat a state delegation achieved through excessive gerrymandering.” They propose to gauge the amount of gerrymandering in terms of the difference between the number of districts won by each party and its share of the statewide popular vote. They take the example of North Carolina’s 2018 elections, where Republicans won 50% of the popular vote for House members, but 77% of the state’s 13 seats. And the gerrymandering authors of those maps came right out and confessed proudly that their motive was to guarantee their party’s supermajority control.
The constitutional basis for direct Congressional oversight is in Article 1, Section 5, which says that “each House shall be the judge of the Elections, Returns and Qualifications of its own Members.” It has been used, albeit rarely, to exclude representatives chosen under questionable election procedures. And it was used after the Civil War against state intimidation of black voters and unconstitutional election laws.
There are a couple of obvious problems with this solution. One of those– political abuse of the power to deny delegations a seat–can probably be prevented by carefully crafted legislation. The other, as Allison points out, is how a determination is made that extreme gerrymandering has occurred.
For a number of years, the lack of a reliable “standard”–that is, a tested and dependable method for determining that disproportionate results were attributable to partisan redistricting and not simply to the voting sentiments of constituents–was the Supreme Court’s excuse for not addressing the issue. In the most recent case, however, that excuse no longer applied; in Rucho v. Common Cause, the Court was supplied with statistical tests developed by scholars for just that purpose. One test–called the “efficiency gap” was based on a calculation of “wasted votes.” Wasted’ votes are those cast for a losing candidate or for a winning candidate beyond what he or she needed — divided by the total number of votes cast.
I personally prefer the tests developed by Sam Wang at Princeton. Be that as it may, there are now indisputably accurate statistical tests available to determine whether the number of votes cast translate fairly into the number of seats won.
Allison cites Robert X. Browning and Gary King, “Seats, Votes and Gerrymandering: Estimating Representation and Bias in State Legislative Redistricting.” Law and Policy, Vol. 9, No. 3, July, 1987 for the proposition that this approach to determining the fairness of electoral results isn’t new. I have personally done a fair amount of research into partisan redistricting, and written a couple of academic articles on the subject, and I can confirm the accuracy of this assertion.
The virtue of this approach, as Allison notes, is that– if adopted by Congress– its potential threat alone could create a powerful incentive toward nationwide redistricting reform.
If America truly cares about fair and equal representation–an open question in a country that makes it hard rather than easy to cast a ballot–this is an approach worth considering. It should be one more agenda item to be taken up by a (fingers crossed!) Democratic House and Senate.