Flores

Chapter 2

A Historical Background

 


A Brief Overview of Electoral Systems
   At-large
   Single- and Multimember Districts
The Uncommitted Constitution
Conclusion
Notes

Racial gerrymandering has drawn a great deal of criticism from both sides of the political spectrum, as politicians, judges, and academics all struggle with the perplexing question of how racial minority representation can be preserved within our single-member district plurality system.  Curiously, as divisive and balkanizing as this practice allegedly is, it certainly raises very little alarm among voters. While occupational and educational affirmative action is overwhelmingly opposed by white citizens,[1] public opinion surveys simply have not identified a tide of popular resentment against electoral benefits for racial minorities.[2]

There is a simple reason for this: the general public is simply aloof to the design of electoral districts, not to mention wholly unconcerned with the overall structure our current voting system.[3] It has been written that ìElection procedures seem about as important to the understanding of American politics as accounting procedures are to the understanding of American business.î[4] From this observation, it would be surprising if a majority of Americans grasped the influence an electoral system can have on their vote.

The importance of the procedures with which any level of government chooses to elect its officeholders cannot be underestimated, for the type of electoral system significantly affects who ultimately gets elected. The composition of Congress would be markedly different if every state elected its Representatives at-large, or from multimember districts utilizing alternative voting procedures. Election results, meaning who actually wins the contested seats, are quite dependent on the type of voting scheme that is used. It follows that electoral laws are thus of special importance to every group and individual in society, because they help to decide who makes the other laws.[5]

In this chapter I will start by describing the various differences between at-large, multimember, and single-member district elections. I will then show that although many of the Framers may have preferred districts, the Constitution still fails to mandate any particular system for Congressional elections.  As a matter of fact, the Constitutional Convention reached a general consensus that state legislatures should be allowed to choose their own electoral system, since they would be best acquainted with the needs of their constituents. While Article I, Section 4 of the Constitution grants concurrent jurisdiction over this matter to Congress, its power was originally meant to be exercised only in times of emergency. Hence, my main argument here is that there was a great deal of ambiguity about who retained ultimate authority over elections, as Congressí power was left quite unclear.

This historical background will therefore highlight two points. First, that past Congresses may not have been using their electoral authority in the intended context when enacting districting laws. And second, that Rep. Watt has a valid claim in seeking to reestablish statesí ability to select their own voting systems.

 

A Brief Overview of Electoral Systems

In order to fully understand the ensuing discussion, it is necessary to distinguish between the different electoral systems that currently exist within todayís American democratic practice.[6] In the next several pages I will briefly summarize at-large, multimember district, and single-member district elections. But it is important to keep in mind that these descriptions assume the use of plurality voting procedures. For as I will show much later in this thesis, the use of PR voting schemes within at-large and multimember districts would drastically alter the idiosyncrasies described below.

Although the Statesí Choice of Voting Systems Act would allow states to decide how their Representatives would be elected, not all of the following structures represent available options. This is because at-large and multimember district elections, when used with plurality voting, have a dilutionary impact on minoritiesí voting strength within polarized communities.[7] Thus many states, especially in the South, would likely avoid the plurality version of these systems out of fear of potential litigation.[8]

At-large

Also commonly referred to as the general ticket, at-large elections are held statewide, meaning that the stateís entire Congressional delegation is voted on by all of its eligible voters. For example, if there are seven seats up for election, then a voter may vote once for seven different candidates. Inherent to this system is a notorious sweep effect that can cause gross deficiencies in representation when used with plurality voting procedures. Any party that can muster a bare plurality of the vote will tend to win all or most of the seats up for election.[9] Minority interestsóbe they geographic, partisan, or racialóthat are not in political agreement with the statewide majority can easily have their political power diluted, and worse, be left without any representation. These flaws are hardly inconspicuous, and have left many at-large systems, on numerous levels of government, vulnerable to attack on constitutional grounds.[10]

There are two benefits that may come from this system though. First and most significant is that at-large elections avert the need to create districts, majority-minority or otherwise, and are therefore much more efficient for state legislatures. Politicians are not permitted to choose the voters, and the evils of gerrymandering are conveniently avoided. Second is that candidates elected at-large tend to more represent the interests of the whole state rather than the narrow, parochial interests to which district Representatives are perceived as being more susceptible.[11] Related to this argument is that voters in at-large elections are not limited to the choice of only one candidate, but instead can have an impact on all of the Congressmen elected from their home state.

Single- and Multimember Districts

Districting is a task that requires state legislatures to partition their states into smaller subdivisions from which Representatives can be elected. There are two types of district elections: single-member, where voters are only allowed to elect one candidate to Congress; and multimember, in which two or more Representatives are elected from a single district. Although the distinction is obvious, the critical difference between the two may not be.

Simply put, multimember districts, even when fairly drawn, can still dilute minority voting strength. This is due to the fact that a bare plurality could potentially determine the gamut of Representatives for the region, gaining a disproportionate share of political power. Minorities may once again be left without representation, especially when their interests differ sharply from the majority. Therefore, multimember systems can be strikingly similar to at-large elections, as both share the same unsatisfactory sweep tendency.

Yet if a state were to choose between district and at-large plurality elections, districtingóespecially that of the single-member varietyócould usually be considered the more inclusive option for minorities. This practice requires legislatures to divide up their population, dispersing the stateís majority throughout a number of different regions.  There exists within these smaller districts a higher probability that the minority group will be able to win at least one seat.[12] With the majority unevenly splintered, those in the statewide minority should now be able to overcome their numerical disadvantage in order to elect a Representative of their choice. As a result, single-member districts have long been praised for their ability to improve minority representation within the American winner-take-all paradigm.[13]

Another proverbial merit of districting is that the practice is believed to bring the voters closer to their Representative, not only geographically, but also in terms of social distance and interest.[14] Since this countryís inception, a tremendous amount of value has been placed on the proximate connection between Congressperson and citizen. District Representatives are normally required to live amongst their constituents, increasing responsiveness and providing both sides with a sort of spatial bond. In this way, these officeholders are perceived to have their fingers on the pulse and general sentiment of their particular community. And if citizens are displeased in any way with the quality of representation their Congressperson provides, they can respond quickly by voting that person out of office.

The main criticism of districting is that the practice provides those who draw the boundaries an inordinate amount of control over electoral outcomes. The partisan distribution of states, historically never much of a mystery, has always been easily exploitable. (With recent advances in computer technology, mapmakers can currently discern a stateís political composition down to each city block.) Politicians are then conversely choosing voters, with districting representing an attractive way in which election results can nearly be predetermined. The term gerrymandering is used to refer to this type of political manipulation, as it unfairly excludes or disadvantages a distinctive group within the process of drawing district lines.[15]

It has been persuasively argued that all districting is gerrymandering.[16] This is due to the fact that even independent, apolitical districting plans are bound to have harsh political consequences.[17] No matter how these districts are drawn, there will inevitably be some groups that are disadvantaged as a result of these subdivisions.[18] Competition is thereby stifled, with most elections becoming remarkably predictable months before campaigning even begins.

 

While admittedly brief, this section detailed the most important characteristics of at-large and district electoral systems. Both have their advantages and disadvantages. On one hand, the problems with at-large elections are inherent and unavoidable when used with a plurality voting procedure; the majority will almost always win all of the contested seats. On the other hand, the drawbacks of districting are more of a functional nature, and can be proactively mitigated with a tweaking of boundary lines. Minority representation is augmented by the fact that states are carved up into subdivisions, with every area of the country gaining legislative influence. As I will show in the next section, these were characteristics that motivated the Framers of the Constitution to express a preference for single-member districts.

 

The Uncommitted Constitution

The Constitution falls surprisingly silent on the subject of how Congressional Representatives should be elected, even though the electoral systems described above have existed from the very beginnings of this country. But while there is no explicit requirement, there is still a great deal of evidence that suggests that district elections were projected.

First, there are the numerous references from James Madisonís contributions to the Federalist papers. In Number 56, he remarked ìDivide the largest state into ten or twelve districts and it will be found that there will be no peculiar local interests in either which will not be within the knowledge of the Representative of the district.î[19] Later in that same essay, Madison reasoned that ìThe Representatives of each state willÖbring with them a considerable knowledge of its laws, and a local knowledge of their respective districtsÖî.[20] The final excerpt comes from Number 57, in which he declared that ìeach Representative of the United States will be elected by five or six thousand citizens.î[21] As a result, from these arguments it appears that Madison assumed most Representatives would be elected by districts rather than at-large.[22]

There were other indications of this preference as well.  George Mason asserted a conception of the House of Representatives during the Constitutional Convention that resonates even today, arguing that it ìIt ought to know and sympathize with every part of the community, and ought to be taken not only from different parts of the whole republic, but also from different districts of the larger members of itÖî.[23] Then there was a statement made by Alexander Hamilton at the New York ratifying convention, in which he said that ìThe natural and proper mode of holding elections will be to divide the state into districts in proportion to the number to be elected.î[24] Consequently, it seems that districts were most likely the true intention of the Framers of the Constitution, with some holding on to this preference well after the Philadelphia Convention.

Yet the delegates to the Constitutional Convention also reached a general consensus that decisions regarding electoral methods were best left to the legislators of each state, since they could decide which plan was most suitable for their constituents.[25] There was very little debate on this topic, as most of the Framers were firm believers in state choice. Madison summarized this sentiment ìWhether the electors should vote by ballot, or viva voce, should assemble at this place or that place, should be divided into districts, or all meet at one place, should all vote for all the Representatives, or all in a district vote for a number allotted to the districtóthese, and many other points, would depend on the legislatures, and might materially affect the appointments.î[26]

 

So the Founding Fathers preferred district elections, but declined to mandate them within the Constitution because they believed states should have the right to choose for themselves how they would elect their Representatives to Congress.  This issue became increasingly unclear when Article I, Section 4 was introduced. It states that ìThe 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.î[27] This confusing construction granted Congress concurrent jurisdiction over electoral matters, an issue that raised a great deal of controversy. When submitted to public scrutiny, the federal governmentís supervisory power was staunchly opposed based on fears that this authority would be abused. ìProperty qualifications, inconvenient times of elections, and all kinds of plots by Congress to continue itself in power were imagined.î[28]

Madison tried to explain Congressí capacity in Federalist Number 59. There he claimed
 

ì[The Framers] have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. [29]

 

This statement was quite significant, because it articulated the intended context in which Congress should utilize its electoral authorityónamely, only in those times of emergency.

Consequently, eight of the original thirteen states proposed amendments during their ratification conventions that sought explicit restrictions on when this power could be exercised.[30] Three states put forth the same revision which held that ìCongress shall not alter, modify, or interfere in, the times, places, or manner of holding electionsÖexcept when the Legislature of any State shall neglect, refuse, or be disabled by invasion or rebellion to prescribe the same.î[31] Two others widened Congressí authority to include on that list those situations in which states made ìregulations subversive of the rights of the people to a free and equal representation in Congress.î[32] It thus appears that Congressí electoral authority was widely viewed with suspicion, and probably only to be used in dire circumstances.

Still, the federal Legislatureís power was never placed within bounds. In the first session of the first Congress in 1789, a Representative from South Carolina proposed an amendment that would have limited Congressí authority over elections much like those of the state ratification conventions outlined above. Surprisingly, for reasons ìother than a condemnation of the principle,î[33] the amendment was voted down by a mere five votes. 

Nonetheless, the reality remains that a majority of the original thirteen states conceived Congressí authority over lower house elections to be quite limitedóand certainly not to be maintained vis-ý-vis a stateís need to adapt its electoral system to its own regional exigencies. While a decision was eventually reached, it was hardly a settled issue. First, a number of states were clearly unsatisfied with Congressí unchecked authority over statesí electoral decisions. This was evidenced not only in the fact that eight states opposed this federal power, but further, by the close vote on the proposed amendment. Second, the Constitution itself remained equivocal on the issue, as the provision could easily be subject to two different interpretations.  Overall, history proves that states were thought best to make their own electoral decisions, while Congressí authority over the matter was as questionable as it was conditional.

 

Conclusion

The three electoral systems described aboveóat-large, multimember, and single-member districtsócan be thought to exist within a dilutionary hierarchy.  Single-member districts constitute the most representative electoral system available within a plurality voting scheme, which is no doubt why so many of the Framers expressed their preference for it. Conversely, at-large elections, because of their unfair sweep effect, exhibit the largest dilutive impact. Multimember districts exist somewhere in between, depending on their size and the number of Representatives they contain.

But while single-member districts do a much better job of ensuring minority inclusiveness, several states did not need this benefit at the inception of the Republic.  Their circumstances were different from those of other, larger states: they lacked the diversity of regional and partisan interests, so subdivisions were considered unnecessary. The important point here is that these states were allowed to tailor their own electoral system to their own regional exigencies.  As shown above, the Framers of the Constitution wanted states to have this capability, since the states would know their own interests better than any other decision-making body.

Unfortunately, the Framers confused this topic by granting Congress a concurrent jurisdiction over electoral decisions in Article I, Section 4. The situations in which the federal Legislature could use this power were clearly thought to be quite limited, as a significant majority of the original thirteen states responded by proposing amendments seeking to codify permissible preconditions. While none of these revisions were ultimately adopted, the fact remained that states were the only actors who possessed a settled and intended authority to make decisions about electoral matters. 



Notes

[1] See Howard Schuman, Charlotte Steeth, Lawrence Bobo, and Maria Krysan, Racial Attitudes in America 170-183 (Harvard University Press, 1997).

[2] Hugh Davis Grahman, ìVoting Rights and the American Regulatory State,î in Controversies in Minority Voting 177, 193 (Bernard Grofman and Chandler Davidson, eds., The Brookings Institution, 1992) [hereinafter Grofman and Davidson, Controversies].

[3] Timothy G. OíRourke, ìThe 1982 Amendments and the Voting Rights Paradox,î in Grofman and Davidson, Controversies 85, 107.

[4] Amy, Real Choices 9.

[5] Douglas W. Rae, The Political Consequences of Electoral Laws 3 (Yale University Press, 1971), taken from Amy, Real Choices 9.

[6] These different structures may be used at any level of government to elect federal Representatives, state legislators, city council members, and even local school boards.  However, in the interest of clarity, I will only discuss them in the context of Congressional elections.

[7] Chandler Davidson and Bernard Grofman, ìEditorsí Introduction,î in Quiet Revolution in the South 3, 7 (Chandler Davidson and Bernard Grofman, eds., Princeton University Press, 1994) [hereinafter Davidson and Grofman, Quiet Revolution].

[8] Laughlin McDonald, ìThe 1982 Amendments of Section 2 and Minority Representation,î in Grofman and Davidson, Controversies 66, 71. Fear of litigation is so pervasive that the threat alone has forced many jurisdictions to change.

[9] Leon Weaver, ìSemi-Proportional and Proportional Representation Systems in the United States,î in Choosing an Electoral System 191, 193 (Arend Lijphart and Bernard Grofman, eds., Praeger, 1984) [hereinafter Lijphart and Grofman, Choosing].

[10] Ibid, 193.

[11] Ibid, 192.

[12] Ibid, 193.

[13] See Madison, supra note 18.

[14] Weaver, in Lijphart and Grofman, Choosing 193.

[15] Guinier, Tyranny 232, n182.

[16] Robert G. Dixon, Jr., Democratic Representation: Reapportionment in Law and Politics 462 (Oxford University Press, 1968).

[17] Amy, Real Choices 51.

[18] Weaver, in Lijphart and Grofman, Choosing 193.

[19] Madison, in Kramnick, Federalist 340.

[20] Ibid, 341.

[21] ìFederalist Number 57î (James Madison), in Kramnick, Federalist 346.

[22] ìReapportionment and Redistricting,î ed. John Moore, in Congressional Quarterlyís Guide to US Elections 925, 926 (Congressional Quarterly, 1994).

[23] Joel Francis Paschal, ìThe House of Representatives: ëGrand Depository of the Democratic Principleí?î 17 Law and Contemporary Problems 276, 276-77 (Duke University, 1952).

[24] Quoted in Lawrence F. Schmeckebier, Congressional Apportionment 131 (Brookings Institution, 1941).

[25] Rosemarie Zagarri, The Politics of Size 106 (Cornell University Press, 1987). Also see infra note 97.

[26] Ibid, 106.

[27] United States Constitution, Article I, ß4.

[28] Paschal 278.

[29] ìFederalist Number 59î (James Madison), in Kramnick, Federalist 353.

[30] Paschal 278; Congressional Globe, 27th Congress, Second Session, Volume 11, Part II, Appendix 320-22, 348-49 (1842) [hereinafter 1842 Congressional Globe]. The eight states were Massachusetts, New Hampshire, New York, North Carolina, Pennsylvania , Rhode Island, South Carolina, and Virginia.

[31] They were Virginia, North Carolina, and Rhode Island. Ibid, 321-22.

[32] Massachusetts and New Hampshire. Ibid, 320-21.

[33] See ibid, 349 for an explanation of the history.