an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
We are concerned that the power that state legislatures have over the composition of the House of Representatives represents a smoldering constitutional crisis, which may itself be linked to the Trump phenomenon.The distortion in representation that results from partisan gerrymandering, not only in terms of Congressional polarization, which increased further with the 2012 districting plans, but also in the increased likelihood that a majority of voters are denied a majority of seats, contributes to gridlock and ever-higher levels of legislative dysfunction.This violation of majority rule occurred in 2012, and may occur again in 2016.Even if Clinton is victorious by a sizable margin (5%+), and a majority of voters support Democratic Congressional candidates, the GOP is likely to retain control of the House.If this occurs, legislative-executive relations are likely to erode further, weakening our constitutional system’s capacity to respond to challenges at home and abroad. Unless we are willing to rethink the Supreme Court’s reasoning about how to address partisan gerrymandering, we may be approaching that cliff.
In our book, we demonstrate that the Supreme Court’s decision in Vieth v. Jubelirer (2004), and the partisan districting that followed the 2010 Census, raise fundamental questions about American democracy.The Court’s decision in Vieth removed the possibility that the Court would invalidate a districting plan on grounds of partisan gerrymandering. This was because a majority of the Court found that there are no suitable standards for adjudicating such claims. In effect, this means that partisan gerrymandering is nonjusticiable, in practice if not in principle. This has created a loophole that has allowed state legislatures to create very biased districting plans that undermined the egalitarian intent of the reapportionment revolution of the 1960s.
We confirm that partisan bias increased sharply in the 2010 districting round. We find that the bias of the House of Representatives in 2012 was around 9% in favor of the Republican Party (measured using the asymmetry standard). Roughly speaking, this means that if there were a 50/50 vote split, Republican voters would win 55% of the seats, while Democratic voters would get 45%. This compares to a 3% bias in the 2000 districting round. In many individual states, the bias is far, far greater. There are numerous states where the asymmetry is between 30% and 40%. Or, alternatively, one party can win between two-thirds to three-quarters of the seats with only half the votes. The immediate political implication of this bias is that the House of Representatives is likely to remain under Republican control for the next decade. The degree of bias is such that it would require a 2016 Democratic victory on the level of 2008 to overhaul it.
The Vieth ruling fundamentally undermined the one-person, one-vote jurisprudence of the 1960s. The Supreme Court’s rulings in cases such as Wesberry v. Sanders (1964) and Reynolds v. Sims (1964) did not simply establish that malapportionment was unconstitutional and that all districts needed to have approximately the same population. They established fundamental principles of political equality. They asserted that the right to equal protection and the fact that the House was to be “elected by the People of the several States” meant that every vote needed to be weighted equally. This in turn implied majority rule and the principle that vote dilution by any means amounted to disenfranchisement.The Supreme Court’s judgment in Vieth effectively eviscerated Wesberry and Reynolds without overturning either of them.State legislatures can now simply use partisan gerrymandering to engineer the outcomes that in the past they would have obtained by malapportionment.
While it can be argued that the Vieth judgment undermines the democratic nature of American government, it turns out the crucial point of the argument in Viethrests on a central concern of political philosophy and, indeed, the theory of democracy. The reason partisan gerrymandering is nonjusticiable, according to both Justice Scalia’s Vieth opinion and the concurring opinion by Justice Kennedy, is that there does not exist a standard to adjudicate these cases. Such a standard would need to be both derived from a constitutionally protected right and practically applicable. If we accept the majority rule principle – the principle that a majority of voters should be able to elect a majority of representatives – then it is not difficult to measure this, as we demonstrate.
The insulated GOP majorities in the House of Representatives and in state legislatures across the United States, protected through partisan gerrymandering, have helped nurture a virulent strain of populism in American politics. Today, the House of Representatives looks more like a creature of competing state interests than does the Senate. We could call this a constitutional crisis, or the revenge of the Anti-Federalists.But there is hope.In the first purely partisan gerrymandering case to go to trial in nearly 30 years, Whitford v. Nichol, plaintiffs challenging Wisconsin’s State Assembly district lines await a federal court ruling in which they seek to establish a justiciable and manageable standard for partisan gerrymandering.Plaintiffs assert that “By distorting the relationship between votes and assembly seats” the districting plan adopted in 2011 “causes policies to be enacted that do not accurately reflect the public will…In the end, a political minority is able to rule the majority and to entrench itself in power by periodically manipulating election boundaries.”It is likely that the Supreme Court will have the final say.That is, as long as we avert a constitutional crisis in November.