By John B. Anderson and Rob Richie
February 16, 1998, from the Legal Times
The practice of so-called "racial gerrymandering" has divided and preoccupied the Supreme Court more than any other issue in recent years. The Court has heard arguments on cases involving the Voting Rights Act and redistricting each term since 1993, often producing bitterly contested 5-4 rulings that have had the general -- if still poorly defined -- impact of limiting to what degree states can use race in drawing legislative district lines.
But even if the racial districting cases have done little to guide states in how to use race in redistricting, they have established beyond all doubt that those drawing district lines have more power over which political party represents most districts than the voters themselves -- and that the power to pursue such political gerrymandering has increased dramatically with modern technology. As the district court concluded in Bush v. Vera, involving Texas' congressional districts, "The final result seems not one in which the people select their representatives, but in which the representatives have selected the people."
The Texas districts powerfully demonstrate the power of district lines. In his dissent in Vera, Justice John Paul Stevens details how state legislators used the latest computer technology to piece districts together, block by block, to protect incumbents and maximize Democrats' advantage. In the 1992 election: 1) 26 of 27 incumbents were re-elected; 2) the three open seats went to Democratic state legislators who had served on redistricting committees; 3) the eight Republican incumbents were put in districts packed with conservative voters, allowing Democrats to win 21 of the remaining 22 seats with less than 50% of the statewide vote; and 4) all but one race were won by comfortable margins of at least 10%.
Justice Stevens suggested that political gerrymandering deserves increased constitutional scrutiny, a scrutiny which the Court already tentatively accepted in the 1985 Davis v. Bandemer case when the technology of gerrymandering was comparatively primitive. Stevens wrote that "[Legislatures'] responsibility is not discharged when legislatures permit and even encourage incumbents to use their positions as public servants to protect themselves and their parties rather than the interests of their constituents... If any lines in Texas are worth straightening, it is those that were twisted to exclude."
The chief architect of the Texas plan might agree. Congresswoman Eddie Bernice Johnson, then chair of the Senate redistricting committee, told a civil rights gathering in 1997 that redistricting "is not one of kindness. It is not one of sharing. It is a power grab." She has co-sponsored Rep. Cynthia McKinney's Voters' Choice Act (HR 3068), a bill introduced in the 105th Congress to restore to the states the option of using proportional representation (PR) voting systems for U.S. House elections by amending a 1967 law mandating one-seat House districts. Congresswomen McKinney and Johnson are among a growing number in the civil rights community who see PR systems as the way to settle the controversy over race-conscious districts once and for all by giving all voters a better chance to win representation.
The principle of PR is that any group of like-minded voters should win legislative seats in proportion to its share of the popular vote. Whereas our current winner-take-all principle awards 100% of the representation to a 50.1% majority, PR allows voters in a minority to win their fair share of representation. The more voters able to elect representatives, the harder it is to gerrymander one-sided elections.
PR system are used in most mature democracies. Of the 36 major democracies with a high Freedom House human rights rating and a population over two million people, only two -- the United States and Canada -- use exclusively winner- take-all elections for national elections. The United Kingdom recently adopted PR for elections to the European parliament and to new regional assemblies in Scotland and Wales. The Labor government has pledged a referendum on PR for electing the House of Commons by the year 2000.
With PR, voters in a constituency have several representatives rather than just one: five one-seat districts might, for example, be combined into a single five-seat district. A party or group of voters that wins 20 percent of the popular vote in this district would elect one of the five seats. A party or slate of candidates with a majority of votes would elect a majority of three seats, but not all five seats.
Various PR systems exist. There are partisan and non- partisan forms of PR; more than 200 localities in the United States in fact use one of three non-partisan systems that are "semi-proportional": limited voting, cumulative voting and choice voting (e.g., single transferable vote). Some PR systems allow very small political forces to win seats, while others set higher thresholds that limit proportionality. Some PR systems eliminate all guaranteed representation of different geographic areas; others allow voters to balance geographic representation with representation of their other communities of interest. The details of course matter, but the first step is recognizing the fundamental fairness of the principle of PR -- a principle that has become the norm in mature democracies and in emerging democracies in eastern Europe and the former Soviet Union.
The Constitution is silent on methods of election for the U.S. Congress. The principle of PR was touted by some -- indeed, John Adams wrote that "[American legislatures] should be an exact portrait, in miniature, of the people at large, as it should think, feel, reason, and act like them." But the only voting systems available were winner-take-all elections in multi-seat districts (usually statewide) and in one-seat districts. No PR system was developed until the 1840s.
Most states initially used statewide elections to elect their U.S. House delegations. Gradually, more states moved to district elections, primarily to better represent diverse interests. Statewide elections tended to allow one political faction's candidates to win all the seats, diluting the votes of those in the minority. In 1832 and 1834, for example, the Democrats swept New Jersey's U.S. House seats in statewide elections despite barely 1,000 votes separating the first-place candidate from the last-place finisher in each election.
The most influential early advocate of PR in the United States was Charles Buckalew, a U.S. Senator from Pennsylvania in the 1860s. Sen. Buckalew's proposals on PR gained significant support in Congress, and he played a central role in the adoption of cumulative voting in Illinois for state legislative elections. But earlier in his career he had advocated district elections. In an 1867 speech in Philadelphia, Buckalew shed light on what might have happened if district supporters had known about PR systems:
"I drew the amendment to the Constitution of our State by which your city is broken into districts. What was the idea of that amendment? It was that one political interest should not absorb the whole sixteen or eighteen representatives you send to the Legislature..... Unfortunately, when that arrangement was made, [cumulative voting] was unknown; it had not then been announced abroad or considered here, and we did what best we could."
Incumbent legislators are slow to change the rules that elect them. But redistricting has become such a wild card that the time may be ripe for giving states an option to use PR. Control of redistricting hangs in the balance in more than half of states, and the Supreme Courts' rulings on voting rights have only muddied the question of how states should draw district lines involving racial minorities.
The Voters' Choice Act would benefit states, voters and perhaps even incumbents. States could avoid the inevitable partisan bitterness and expense of redistricting one-seat districts. Incumbents in states opting for PR arguably would have more control over their electoral destiny than in one-seat districts that soon may be redrawn to their disadvantage. Voters would be the biggest winners, however. Most now live in non- competitive districts -- the average victory margin in House races in the 1990s has been over 30%. PR would give them real choices in elections and two-party representation.
This last point has particularly important implications. Currently, large areas of our country have near-monopoly representation. In the deep south states of South Carolina, Georgia, Alabama, Mississippi and Louisiana, there are 25 white Republicans, 7 black Democrats and only four white Democrats. With a Republican sweep of close races, the division could be 30 white Republicans and 6 black Democrats in 1999 (and still only one woman). In New England, on the other hand, Democrats won 19 of 23 House seats in 1996, defeating four of seven Republican House incumbents and holding three Republican winners to less than 51%. Democrats could win 22 of 23 seats in 1998.
Such imbalanced representation often occurs within states as well, with Democrats disproportionately controlling urban districts and Republicans controlling rural districts. In contrast, Illinois had balanced representation throughout the state when it elected its state assembly by cumulative voting in three-seat districts from 1870 to 1980. Nearly every district, including those in heavily Democratic Chicago and strongly Republican suburbs had two-party representation. The loss of such representation is lamented by many of Illinois' most thoughtful political observers -- and its absence in national elections results in political isolation for many Americans.
The highly-publicized problems of some nations such as Israel and Italy may cause some to look at PR with alarm, but we believe a full-fledged debate about PR and its many forms would answer most people's concerns. Experience of PR around the world suggests ways to find reasonable compromises between the extremes of a one percent threshold for representation (as in Israel) and our winner-take-all threshold of up to 50%. And the fact is that for every voter who wants to elect an extremist, there are perhaps five to ten voters currently denied an opportunity to elect a more centrist representative. Illinois' experience with cumulative voting is reassuring: as the Chicago Tribune editorialized in 1995 in calling for cumulative voting's restoration, "[Cumulative voting] produced some of the best and brightest in Illinois politics."
As we confront the possibility of a record-low voter turnout in 1998 and an increasingly polarized Congress, it is high time for us to ask fundamental questions about the workings of our democracy. The ever-increasing cost of our national elections has produced a scandal that is still unfolding. However, it would be a serious mistake to conclude that campaign finance reform is a silver bullet that by itself will dispatch those great enemies of democracy: voter apathy and loss of trust in government.
We need truly competitive elections where real choices will respond to the voices of literally millions of Americans who today are not being heard. We believe that open-minded consideration of proportional representation could lead to its adoption for local, state and national elections. The Voters' Choice Act is an important, if modest, step in this developing national conversation.
John B. Anderson is a former Member of Congress (R.- Illinois) and is president of the Washington-based Center for Voting and Democracy. Rob Richie is the Center's executive director.