Ol’ Elbridge Gerry is back in the dock, his namesake “gerrymander” blamed for all that ails our “gridlocked” Congress. Some claim that the House districts drawn by state legislatures in 2011 have reached new heights (or lows) of partisanship. Critics deride the shape of the districts and object to their effect on control of the House. These claims are important, but they ignore the fact that state legislatures have since 1788 sought to influence the selection of members of Congress.
The current, computer-aided gerrymandering is only the most recent battle in that perennial fight. When viewed as the “selection” of sympathetic House members by state legislatures, gerrymandering reflects deeper constitutional roots than its critics admit.
In the early years of the Republic, some states chose creative means of election of members of the House. Some opted to elect their members “at-large” by a state-wide ballot, rather than by district. Others elected more than one individual from a single district.
Time (and Congress) gradually chipped away at state powers over Congressional elections. In 1842, Congress expressly prohibited multi-member districts, a ban that was re-affirmed in 1967 and endures today. At-large elections (for states with more than one member of the House) continued into the 20th century, though none exists today, and their validity under the 1967 act remains in doubt.
State legislative election of senators gave way in 1913. The 17th Amendment required the direct election of senators by the people. It was adopted in 1913, ratified by the requisite number of states (apparently content to cede the constitutional power of their legislatures). More recently, in 1995, the states were thwarted by the Supreme Court in their efforts to impose term limits on their federal representatives.
Given these limitations on the powers of state legislatures, state lawmakers seeking to influence the selection of members of the House have resorted to the one constitutional power yet intact: state power to draw House districts. Not surprisingly, they have sought to enlarge this power from one of election to one of virtual selection, by drawing districts in which the partisan result is pre-ordained.
Critics assail the result, claiming that this practice creates ideologically “rigid” and “safe” seats that increase partisan gridlock in Washington. This may be the practical result, but the critics ignore the fact that this result flows from our two-tiered brand of constitutional federalism.
The Constitution makes senators and congressmen officials of the national government, but they are apportioned in number and chosen by state. Their eligibility for election is based on their residence in the electing state. Their office doors at the Capitol often bear the seals of their home state. They have been historically assumed to “represent” – at least in some degree -- their states. The parties controlling the state legislatures, in turn, wish to elect – if indirectly – a House delegation sympathetic to their views. As Franita Tolson of Florida State University has written, “the ability to partisan gerrymander is a tool that a state can use in order to influence its congressional delegation and federal policy in a ways favorable to its interests.” In this light, modern-day gerrymandering is simply a new, highly-efficient means to revive old powers over the selection of congressional “delegations”.
These are not necessarily anti-democratic or anti-constitutional means or ends. Rather, state legislative selection of federal representatives has democratic roots. The people of each State drive the selection of federal officials by controlling the election of state legislators. High-stake state fights over the drawing of congressional district lines ought to increase interest in state legislative races in the years preceding and following the year of enactment of new districts. In a similar fight over the “indirect” election of federal officials in 1858, more than 50,000 people watched the Lincoln-Douglas debates in their contest for a Senate seat from Illinois, though those attending could not cast a direct vote for either man. The people of Illinois likely sought to influence the Lincoln-Douglas election instead by influencing the election of state legislators pledged to vote for their favored candidate for Senate. These efforts no doubt sparked great interest in Illinois state legislative races that year. More recently, sea changes in the control of state legislatures set in motion processes that substantially revised congressional districts for the elections in 2012.
This is not to say that the latest districts are an artistic success. Nor does it answer the charge that the districts violate more conservative notions of culture, community, and geography. But these factors were discounted long ago, when “one-man, one-vote” became the constitutional rule and the Voting Rights Act spawned its own form of legislative artistry by requiring “majority-minority” districts in the covered states. Whatever the flaws in the recent works of art, they should not be rejected outright as undemocratic; rather, they should be seen as a renewed effort by the states to assert long-contested powers over the selection of members of Congress.
Barnico teaches at Boston College Law School.