Donald Trump is right: The election IS rigged (though not in the way he thinks)

Sandy Levinson

The Washington Post has an article making the point that even if Hillary Clinton wins a "mandate," she is unlikely to get anything through Congress.  The author gives seven reasons, the first one of which, and the most important, is that "Republicans are almost certain to hold the House.  The tea party wing might actually wind up with more leverage, not less, after November."  The "logic" of our political order and the "separation of parties, not powers" (as Rick Pildes and Daryl (no relation) Levinson our it, is that an opposition party has no reason whatsoever to cooperate (or, in their language, "collaborate," with a president of the opposite party, for the simple reason that president's will pick up (at least) 90% of the credit for any accomplishments.  If the president is thinking of running for re-election, that's a big advantage.  This is why Mitch McConnell was behaving perfectly rationally in doing everything he could to deprive Barack Obama of any accomplishments during his first term.  He had learned from both Newt Gingrich and Ted Kennedy that the consequence of cooperation/collaboration was re-election of the incumbent (respectively, Bill Clinton and George W. Bush).  As a matter of fact, Hillary Clinton will e the most vulnerable incumbent, in 2020, of any president since Herbert Hoover.  It would be idiotic, if one is thinking only in terms of party interest--and what else does the Republican "leadership" that is willing to "endorse" Donald Trump think of these days (it's certainly not the good of the country)--to give her any accomplishments, such as financing infrastructure improvement bills that might actually provide jobs for the working class, as well as stop our decline into third-world status with regard to our roads, airports, railways, bridges, and the like.

But why are the Republicans likely to hold the House while Hillary is walzing to the Oval Office and the Democrats are (probably) recapturing the Senate.  The answer is all too simple:  It's a combination of gerrymandering and the more general consequences of having exclusively single-member districts, as required by a congressional law passed originally in 1842.  This means, for example (and, of course, this is not hypothetical), that Democrats nationally can get 1.5 million more votes for the House and end up with Republicans having a majority in the House of 34.  (Not to mention, of course, the Senate, which is illegitimate under any 21st century notion of one-person/one-vote.)  This, obviously, is big-time rigging.  And we should, at the least, be discussing it and even marching in the streets about it.  It wouldn't even take a constitutional amendment to repeal the 1842 law and instead require each state with more than five representatives, say, to draw multi-member districts with proportional representation elections.  Texas, for example, with 36 representatives, could easily be divided into six districts of six representatives each.  Any of the extant systems of proportional representation would assure West Texas Democrats of being able to elect one or two of their own, just as Travis County Republicans would now be able to elect a local Republican and not rely on a vicious Tom Delay gerrymander to make Austin the largest city in the country without a genuinely "local" representative.  It's not rocket-science.

Obviously, it is unlikely in the extreme that the House would ever vote for such a sensible bill (any more than state senators are likely to vote themselves out of a job in, say, Minnesota, by deciding that that state could easily emulate Nebraska's (or New Zealand's) unicameralism.  If the US were like one of the many states that included popular initiative and referendum, then We the People could do an end run around a corrupt and self-interested House. But it's not.  So, alas, only a national constitutional convention could propose an amendment that would restore legitimacy to the process by which we elect members of the House (even if the convention chose to ignore the obvious problems with the Senate).

Elizabeth Drew, a sagacious commentator on US politics, sadly typifies the obtuseness even of the best mainstream pundits.  She has a review of the new book Ratf___ked, about the skilled use by Republican operatives of modern technology to gerrymander congressional districts after the 2010 elections to assure Republican control of the House until at least 2022 (unless Hillary so clobbers the narcissistic sociopath that she actually generates a Democratic House, but, sadly, that seems to be relatively unlikely).  All Drew can do, like lots of "good government" types, is to call for "non-partisan commissions" to draw the lines instead of leaving it up to self-interested political operatives. The only recognition she shows of the problem of single-member districts is to criticize the notion of "the big sort," the idea proposed by Bill Bishop several years ago that as more and more Americans are choosing to self-segregate by political preferences.  This suggests that it's not simply gerrymandering that leads to the modern House.  Compact districts, for example, might lead to 80% Democratic districts in many urban areas , while Republicans are advantaged by lots more districts in which they would have, say, only 55% of the population.  But single-member districts are, by definition, winner take all.

From my perspective--no surprises here--this is simply another illustration of how we are victimized by our dysfunctional and even "imbecilic" Constitution.  It's not only the craziness of, practically speaking, needing to rev up a constitutional convention in order to repeal a statute that made a great deal of sense in 1842 and generates really terrible consequences today; it's also the fact that the insane difficulty of constitutional amendment makes the very idea "unthinkable" among practical and "thoughtful" people as defined by the Washington Beltway and other centers of "thoughtfulness."

And Democrats are so eager to dismiss the ravings of the narcissistic sociopath regarding his own demented notion that the election is rigged--how else could somebody so magnificent actually lose the presidential election--that they/we are unwilling even to lay the basis for the deep critique of the American political system that assures that the election of Hillary Clinton, if the Republicans keep the House, will make, at best, a marginal different domestically, other than saving us from the prospect of a sociopathic president.  That will be something to be grateful for, but it won't one whit lessen the overall political and constitutional crisis that faces the country and that most people simply wish to ignore because we have a Constitution that seems to assure there is no way out of it.
Posted 12:31 PM by Sandy Levinson [link]