It’s Time to Fix Gerrymandering for Good

This month the Census Bureau will deliver its apportionment counts to the president, and this information will be used to decide how many congressional districts will be apportioned to each state. Since 1929 we have had a static number of 435 districts, so it is likely that some states will gain at least one district and some will lose. It will then fall to the states to draw their new district boundaries. Ideally the districts should be drawn in such a way that they are compact and uniform to as great an extent as possible, to allow for the most equitable representation for all voters. Sadly, a number of state legislatures will in all likelihood follow their previous trend of drawing their districts to gain an advantage in Congressional representation by the party holding that state’s legislative majority. They will draw boundary lines that trace odd shapes all designed to concentrate their opposing party’s voters into as few districts as possible so that the rest would contain majorities for their party. This practice effectively disenfranchises tens of millions of Americans across the nation. This is a practice that has gone on since the country began, but in the last thirty years or so it’s increased to a ridiculous level, affecting at least 59 districts and over 13 million voters.

Until recently there have been three avenues available to address partisan gerrymandering, either at the state level, through the court system or Congressional action. But last year’s Supreme Court decision in Rucho v. Common Cause stated that the problem of gerrymandering is a nonjusticiable political issue which cannot be addressed through the courts. That leaves only the individual states or Congress to address  the problem.

There are a number of states who have taken action to address partisan gerrymandering. In 2018 the Pennsylvania Supreme Court overturned a districting map drawn by the Republican legislature and replaced it with one drawn by an independent expert. Five states have passed ballot initiatives that support independent redistricting, usually by creating a nonpartisan commission tasked with drawing district boundaries, while other states are considering some version of that. If every state were to adopt such commissions it could fix the problem entirely; but the likelihood of that happening and the time it would take for that to happen would mean that for the next decade we would still experience significant disenfranchisement of millions of voters due to gerrymandering.

There is still a role Congress can play here. They could pass a law requiring that district boundaries be drawn in such a way as to prevent partisan gerrymandering. There is a historical precedent here, as the Apportionment Act of 1911 required that individual districts within a state be “contiguous, compact and containing as nearly as practicable an equal number of inhabitants”.  The problem here is that Democrats on average seem to care more about fixing gerrymandering than Republicans probably due to the fact that most models of a non-gerrymandered Congress would likely result in a significant Democratic majority in the House of Representatives. And if the runoff elections in Georgia scheduled for next month result in even one of the Republican incumbents keeping there seat we would have a Republican majority in the Senate and a certain deadlock on any proposed fix to gerrymandering.

There is still one option left, however. Article One, Section 5 of the Constitution states “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…” meaning that the House and Senate have the enumerated power to ensure the integrity and impartiality of the elections for their respective members. The plain language meaning of this is that the House of Representatives has the ability to dictate to the states many things related to the conduct of the Congressional elections in those states. So, if the Democratic majority in the House of Representatives agreed, they would not need the consent of the Senate to require the same districting standards as were in place from 1911-1929 under the aforementioned Apportionment Act. If they were to pass a resolution in the House saying that districts should be contiguous, compact and containing an equal number of inhabitants any state that did not comply could have all of the Representatives-elect excluded from being seated and requiring them to redraw their districts and have new elections. Exclusion of Representatives-elect would require a simple majority vote for the motion to carry. There would need to be a separate majority vote for the exclusion of each prospective member.

One of the reasons this has never been done is that any such effort would be met with vigorous court challenges, likely asserting the rights of the people to choose their own representatives; in such a conflict the House would be able to assert its right to make sure those same people were not being disenfranchised by an improper gerrymander. But that possibility has now been excluded by the Supreme Court’s Rucho decision. In other words, if the House chooses to go this route, there is no one else who has the power to stop them. If they can muster the requisite political will next year’s House of Representatives can fix the problem of partisan gerrymandering all by themselves.

It’s Time to Hold a New Convention

Our country is facing a period of partisan polarization seldom seen, and it is making it more than normally difficult for our federal government to function effectively. Continued arguing over the same issues only serves to further entrench each side against the other. For our nation to survive this trying period we must find a way for us all to come together and find common ground. I believe that way could be found through a new Constitutional Convention.

Nearly everyone is dissatisfied with some portion of the Constitution, whether they feel some portion needs to be abolished, another strengthened, or something entirely new enacted. It’s an arguable point that a document originating in the late 18th century could not foresee many of the realities of our 21st century existence, and while the normal amendment process has attempted to keep pace with the changes in our society the fact is that calls for change often find themselves bottlenecked by a Congress that’s often too wedded to the status quo to allow for real change to occur. Many changes have been proposed over the years that in my opinion should at least have been presented to the states for ratification, such as term limits for members of Congress, a balanced budget or a ban on abortions. Even those suggestions that might have a majority of popular support usually can’t get submitted to the states for ratification because it only takes a one-third plus one minority of persons in just one house of the Congress who don’t want such an amendment to oppose its passage. The only other way for an amendment to be submitted for ratification is for a two-thirds majority of the various state legislatures to call for a constitutional convention. It would require a two-thirds majority of the states to call for such a convention, and so far we have never reached that threshold.

Many persons who oppose a convention state the reason it’s a bad idea is because once a convention is convened they would be able to make any proposal they wished, up to and including a complete re-writing of the Constitution whereby we would possibly have a form of government completely different from the one we now have. That is certainly a valid point, considering the original purpose for our original convention in 1787 was merely to propose amendments to the existing Articles of Confederation and we wound up with a radically transformed government with greater authority at the federal level. But the fact that ratification of such any proposed changes would require ratification by three fourths, or thirty eight, of the fifty states would seem to be a fairly secure protection against anything being enacted that was not truly the will of the American people. We should not forget that the ratification of our current Constitution was only made possible by the promise that once it was enacted a Bill of Rights enumerating limits of the government against Americans would be proposed for ratification as well. This is what gives me confidence that a new Convention would not be able to change our nation in any egregiously harmful fashion.

I believe the value of a convention lies not only in the possibility that new amendments may be added to the Constitution, but perhaps even that some issues could be laid to rest for once and for all by their failure to be ratified. If some proposed amendment not only fails to achieve ratification by 38 states but also receives a large majority of states voting against its ratification, perhaps its proponents will let go and allow other matters to proceed instead.

The hurdle of getting two thirds of the states to call for a convention, however, is a high one. But we have reason to hope in the fact that at this time a total of 28 states have petitioned Congress for a convention to propose a Congressional balanced budget amendment; that means only six more states would need to sign on for such a convention to proceed. Of course the states proposing the Convention are not intending for it to consider anything other than a balanced budget, but history has already shown us that once convened a Convention cannot be limited in such a fashion and they would be free to consider proposing any manner of other amendments they see fit. Once proposed by the Convention the various states would be free to either vote on them and either grant or deny ratification, or they could simply not bother to take up the proposed amendment.

In our highly polarized political environment, especially at the federal level, there is almost no chance any real change is going to happen any time soon. I believe if the states were to call for a Convention it could get the most controversial issues out in the open and provide a national referendum which might get more politicians interested again in compromise for the greater good. It’s certainly worth a try, isn’t it?