Foundation essay: This article is part of a series marking the launch of The Conversation in the US. Our foundation essays are longer than our usual comment and analysis articles and take a wider look at key issues affecting society.
“In Republics,” James Madison warned in the Federal Papers, “the great danger is that the majority may not sufficiently respect the rights of the minority”: in today’s America that fear is inverted.
On November 4 there is a better than even chance that a minority of voters will once again elect a majority of the representatives in the House. This will be a repeat of what happened two years ago. Then, the Democratic candidates together garnered 59,214,910 votes nation-wide to the Republican’s total of 57,622,827 and yet the Republicans won 234 house seats to the Democrats’ 201 despite having 1,592,083 fewer votes.
Why does this happen? Because of gerrymandering or “the practice,” as Black’s Law Dictionary defines it, “of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.”
Practiced as a political artform for some two centuries, gerrymandering is now an exact science. Computer programs using vast data banks describing sociological, ethnic, economic, religious and political characteristics of the electorate determine districts – often of incredibly weird contours – that favor the party that drew the maps.
Texas after the census of 2000 is an excellent example. Every one of its 32 districts had populations of 651,619 or 651,620. The numbers were absolutely perfect, and yet the districts were blatantly in favor of the Republicans, helping them gain six more seats. But as a brief of the American Civil Liberties Union states: “Republicans are only doing unto Democrats as Democrats have done to them,” giving as evidence Georgia’s state senatorial districts in 2002 that gave Republicans 45% of the seats for 55% of the votes. It was this 2002 redistricting that provoked a Republican leader to say “Democrats rewrote the book when they did Georgia, and we would be stupid not to reciprocate.”
Gerrymandering vs the popular will
The ideal of “one person, one vote” is that every vote should have equal weight. Yet serious disparities in representation have persisted from the first days of the Republic to the Supreme Court’s 1962 decision in Baker v Carr, described by Chief Justice Earl Warren in his memoirs as “the most important case of [my] tenure on the Court.” Baker v Carr overruled Justice Felix Frankfurter’s injunction that “Courts ought not to enter this political thicket” of redistricting. It asserted that an inequity in representation is a “justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision.” There ensued a veritable flood of judicial appeals claiming unfair political districts at the federal, state and local levels.
Since then the Supreme Court has heard all imaginable arguments, and its justices have expressed wildly different opinions. This is not surprising for there is no clear theoretical or practical definition of what constitutes an equitable districting plan. Confronted by two plans there are no principles with which to decide that one is more equitable than the other. Only one clear-cut criterion (as spelled out in the 1969 Kirkpatrick v Preisler case) has survived: “Since ‘equal representation for equal numbers of people [is] the fundamental goal for the House of Representatives,’ the ‘as nearly as practicable’ standard requires that the State make a good-faith effort to achieve precise mathematical equality.”
Today’s congressional districts and the 2012 election prove this does not suffice, as Justice John Harlan foresaw in 1969: “The fact of the matter is that the rule of absolute equality is perfectly compatible with ‘gerrymandering’ of the worst sort. A computer may grind out district lines which can totally frustrate the popular will..”
In 2012, for example, Ohio elected 12 Republicans and four Democrats. But Democrat candidates together polled 2,412,385 votes to the Republicans’ 2,620,233. Based on the votes their fair shares of 16 seats are 7.67 for the Democrats and 8.33 for the Republicans, so each should elect eight candidates.
Even more shocking, Michigan elected five Democrats and nine Republicans but the Democratic candidates’ total vote of 2,327,985 outpolled the Republican candidates’ 2,086,985. This is why Justice Harlan went on to call for a new method of election: “The legislature … must create a structure which in fact as well as theory be responsive to the sentiments of the community.”
A solution: Fair Majority Voting
Fair Majority Voting (FMV) is a structure that does the job. It is based on the fundamental fact that each member of the House represents a district, a state and a party. To explain it, take the 2012 congressional vote in Kentucky’s six districts. The elections returned one Democrat and five Republicans (their votes in bold):
The Republicans’ percentage of the total vote was 60.01% so of six total seats their fair share is 3.60: they deserved four seats. The Democrats’ 39.99% of the vote translates into 2.40 of six, so they deserved two seats. Which four Republicans and two Democrats should be elected? To decide FMV computes the percentage of the vote for each of the candidates in each district:
The candidates elected are the four Republicans with the highest percentages (in bold: 1st, 2nd, 4th and 5th districts) and the two Democrats with the highest percentages (necessarily the other districts, in bold: 3rd and 6th). Thus FMV elects the number of candidates each party deserves. The method may be extended to any number of parties.
FMV may, at first, shock – why deny the age-old habit and sometimes elect a candidate with a minority of the vote? Because the age-old habit ignores the fact that today’s representatives in the House behave and vote in the interests of their party and their state every bit as much as in the interests of their districts. Moreover, FMV has very important advantages, among them:
- Gerrymandering in favor of one party is eliminated because a vote counts for either party no matter where it is cast.
- Strict equality of inhabitants per district loses its importance, so traditional administrative borders and communities of interest may be respected.
- Today many districts are so sure to elect the candidate of one party that the other major party does not even field a competitor, thus denying voters any expression of preference (as many as 81 of the 435 districts have only one major party candidate.)
- Every district has a representative as required by law.
- It is impossible for a minority to impose a majority in the house.
Finally, in case you believe all of this is purely theoretical pie in the sky, FMV is already in use in Switzerland. Five cantons (the equivalent of US states) and the city of Zürich use it to elect their legislatures. What’s more, two of those cantons chose FMV this year in public referenda that overrode by large margins the vigorous opposition of the big political parties.
Experience shows that a political party’s interest in a fair system of representation strictly depends on how much it believes it would advantage its own electoral prospects. Change must come from court decisions or public demand. So don’t count on the politicians!