Federalist Phoenix No. 7
In my last missive I explained how democratic governance is diminished because: 1) two Senators are elected for every state without regard to population, 2) the president is chosen by the electoral college instead of the popular vote, and 3) districts for members of the House of Representatives are gerrymandered for partisan purposes.
With regard to the House of Representatives, I have yet to discuss the subject of federal election districts or partisan politics. Both of these have enormous impacts on the only democratically elected members of Congress and therefore on equality—voters having an equal voice. The silence of the Constitution on both of these issues requires investigation and excavation of how they began and evolved into such divisive, politically charged topics. Insofar as gerrymandering is a derivative and the lucrative application of partisan politics, I will attempt to address it and its consequential effects on democracy.
Article I of the Constitution creates our bi-cameral Congress and gives it enumerated powers. It also prescribes how House Representatives are apportioned among the states.
Article I, Section 2 states:
“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative;”
The three-fifths clause was nullified by the 13th, 14th and 15th amendments thus allowing representation based upon the democratic principle of equality in counting toward the allocation of representatives. The Apportionment Act of 1911 set the total number of representatives in the House to 435. Subsequently, the [Reapportionment] Act of June 11, 1929, fixed the number of House members at 435 and created the apportionment method of “equal proportions.” Article I, Section 2, as amended, is currently interpreted to mean that every state is allocated at least one Representative and the remaining 385 are allocated based upon each state’s population as a fraction of the total population of the United States, non-taxpaying Indigenous Americans excluded.
Article I, Section 4 states:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.”
Section 4 reserves to the states the responsibility of creating and maintaining congressional voting districts based on the number of representatives allocated by Congress. Unitary districts are the current norm where each district is represented by one House member. Since the House is limited to 435 members with each state guaranteed at least 1, there remain 385 to be allocated among the states based on population. Under the current partisan system, one candidate is elected who represents one party who then represents the entire district, irrespective of how evenly the district population may be divided along party lines.
In Federalist No. 9 and No. 10, Alexander Hamilton and James Madison, respectively, speak to the issue of factions, or small groups of voters who coalesce around a specific ideology that is harmful to the larger association. In Madison’s own words:
“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed [sic] to the rights of other citizens, or the permanent and aggregate interests of the community.”
Without getting into the minutiae of what “adverse” means, Hamilton and Madison each wrote passionately against a rise of factions citing them as obstacles to stable governance. They argued that factions could be better managed and ameliorated by the republican principle of representation instead of the democratic principle of self-rule in a pure democracy. I have previously explained how pure democracy does not exist because there will always be some group within an association that is excluded; therefore, Madison’s comparison lacks merit since both are representative forms of governance by some measure.
It is important to understand that Hamilton and Madison were not writing political treatises of government, weighing the benefits and disadvantages of both republican and democratic principles. They were writing for a specific purpose and to a specific audience. They were writing to convince the New York state delegation to vote in the affirmative—for approval of the Constitution. As federalists, founders, and framers of the Constitution, neither was a disinterested party in the outcome of the ratification of the Constitution. As elite, educated, white men who would benefit financially from ratification of the Constitution, neither was a disinterested party. And most importantly, despite both of them writing against factions, these two Founding Fathers, along with Thomas Jefferson, were most responsible for the rise of political parties, a government condoned form of faction.
Factions today are synonymous with political parties. They have become factions driven not only by common ideologies but also by an insistent belief that their ideology is superior to all others in theory and practice. They regard their ideology as the will of the American people, whether they are in the minority or majority. Consequently, they exhibit an unwillingness to compromise with another party, and a desire to remain in power at all costs. One way for a party to remain in power is through gerrymandering. As explained in my previous article, gerrymandering for partisan purposes diminishes democracy because it turns the relationship between voters and elected representatives on its head. This occurs for two primary reasons: 1) elections are conducted along party lines that create a win-lose outcome—that is, only one party’s candidate wins, and 2) the party that wins a district is empowered, through its majority state legislature, to manipulate the geographic boundaries of the district and thus ensure they are favored to win any future elections. This manipulation has been ruled constitutional by the Supreme Court and takes two forms: packing the opposing party’s membership into as few districts as possible and diluting the opposing party’s membership in all remaining districts. This is accomplished by drawing or redrawing district boundaries—that have nothing in common with existing political areas such as counties, census tracts, or voting precincts—to circumscribe as many voters as possible from a party into them such that the party in power will be favored to win a majority of the districts. For example, if a state is apportioned 14 representatives, it could draw districts that pack most of an opposing party’s voters into as few districts as possible, thereby leaving the remaining districts predominantly with voters of their party. North Carolina is a perfect example of this practice.
It must be understood that the demographics of census tracts act as a surrogate for party affiliation and that such information is readily available to those who draw or redraw districts. Using such information, many of the North Carolina’s democratic voters are packed into three districts centered around the urban centers of Raleigh, Durham-Chapel Hill, and Charlotte in Wake, Durham, Orange, and Mecklenburg counties. The urban centers of Greensboro and Winston-Salem, within 20 miles of one another, are split into two separate districts that also include large rural areas. In this way, Republican lawmakers are conceding 3 of 14 seats while greatly improving their chances of winning the remaining 11. It should be obvious this practice has nothing to do with equality, quite the opposite. It is about tilting the playing field to favor one party and thus one political ideology over another. Under the definition of democracy being self-rule with all citizens participating equally in the processes of voting and serving in elected office, gerrymandering on its face is undemocratic. From the perspective of republicanism, gerrymandering can and has led to the tyranny of the majority over the minority.
Currently, the states are responsible for creating and maintaining congressional districts based on the decennial census results. Apportionment is done at the federal level where the number of districts is allocated to each state. Unitary districts are the norm where each district has only one representative. The House is limited to 435 members with each state guaranteed 1 leaving 385 to be allocated among the states based on population. Under the current partisan system one candidate is elected who represents one party who then represents the entire district irrespective of how the district population may be divided along party lines. In addition, census tracts and districts do not match. A voting district is usually comprised of hundreds of census tracts. This is important because Representatives are apportioned based on the aggregate population of a state but the state legislatures draw districts based on the demographics at the census tract level, allowing them to manipulate boundaries to circumscribe their party into as many majority districts as possible. This is the current methodology allowed by Congress, approved by the Supreme Court and utilized by the state legislatures to gerrymander districts to one party’s benefit. Furthermore, the two-party system we have today has been co-opted by special interest groups who encourage partisanship because they benefit from a single party controlling the political machinery of our federal government. Power sharing is anathema to them because that would make it harder to influence and control where resources are directed. This, in turns, leans heavily in the direction of a plutocracy where a few wealthy elites control the workings of government through proxy.
What if, instead of a win-lose model of election outcomes that promotes gerrymandering, a power sharing model were created that would obviate it? For example, by keeping much of the same election structures in place—county election boards, voting precincts, and districts—have each district represented by twocandidates, one from each of the two parties winning the most votes in an election cycle. To maintain apportionment equality, the number of districts would be reduced by half but ensure more people in the district were represented.
If a district had 150,000 voters who cast ballots as follows,
Party A candidate - 72,000 (48.0%)
Party B candidate - 58,000 (38.7%)
Party C candidate - 20,000 (13.3%)
the candidates from parties A and B would be elected to represent the district in which they ran. This would have two effects: it would almost always result in a super-majority for the two representatives and it would eliminate gerrymandering altogether.
Continuing the example, North Carolina currently has 14 House districts, each with one elected representative. Under the proposed system, the state would be divided into 7 districts, each with two elected representatives—14 total, same as currently apportioned—one from each of the two highest polling parties in an election per district. Under this method, the House would need to add one additional member in order to make an even number of representatives, 1 from each party for each of the 218 districts in the U.S. With a greater majority of the people within districts and the states having representation in Congress, it would bring the principle of democracy closer to reality.
