Gerrymandering, Unchecked by Court, Aids GOP

      House Speaker John Boehner wasted no time on election night in celebrating the Republicans’ projected victory in maintaining control of the House of Representatives. With polls not yet closed in the West, Boehner went before network cameras to lay out his view of the results. By renewing the GOP’s majority, Boehner said, “the American people have also made clear that there is no mandate for raising tax rates.”
      Three weeks later, a CNN poll released on Nov. 26 indicated that Boehner misread the election results. More than two-thirds of those surveyed said the current “fiscal cliff ” deadlock should be resolved by a mix of spending cuts and tax increases; fewer than one-third favor the GOP’s preferred solution of spending cuts only.
      More fundamentally, however, Boehner is wrong to claim any Republican mandate at all in the GOP’s diminished 234-201 majority in the House. Actually, more Americans voted for Democratic candidates in the House than for Republicans: about 56 million for Democrats and 55 million for Republicans, according to the latest compilation by the Associated Press. This marks the first time since 1996 that one party won more House seats while winning fewer votes, according to data from the House Clerk’s office reported by Bloomberg’s veteran political analyst Greg Giroux.
      How did Republicans fare so much better in House seats than in vote totals? Giroux and others point to one major factor: partisan gerrymandering in the House districts drawn up by GOP-controlled legislatures after the 2010 census. In state after state, GOP lawmakers did all they could to strengthen Republicans in their districts and either weaken Democrats in theirs or pack Democratic voters into districts where their votes would be to some extent wasted. Democrats followed the same script in states where they controlled the process, such as Illinois and Maryland, but the Republicans had a numerical edge in state capitals as the decennial redistricting process got under way.
      Results from this year’s elections cited by progressive commentators — Ian Millhiser, a senior analyst with the Center for American Progress, and syndicated columnist Harold Meyerson — highlight discrepancies between the partisan divide at the state level and results in House contests. President Obama carried Pennsylvania by more than 5 points, but Republicans won 13 out of 18 House seats. He won Ohio by 2 percentage points, but Republicans captured 12 out of 16 House seats. In Virginia, Obama won by 3 percentage points, but Republicans won eight of 11 House seats. Obama carried Wisconsin by 7 percentage points, but Republicans won five of the eight House seats. Obama eked out a narrow victory in Florida, while Republicans won 17 of 27 House seats.
      By Meyerson’s calculation, Republicans gained a 55-25 edge in the House delegations from those five states that Obama carried. “If the control of these House seats reflected the Democrats' statewide margins in presidential and Senate contests,” Meyerson writes, “the Democrats would likely be at parity or in the majority in the new House.”
      Creative map-drawing is not the only explanation for the discrepancy. In many states, Democratic voters are concentrated in urban districts that produce lopsided majorities for Democratic candidates. In Pennsylvania, for example, Democrats carried the five districts they won by more than 750,000 votes, but Republicans amassed a slight edge in the statewide totals for House races.
      Still, the importance of partisan gerrymandering is undeniable. And the practice persists, as Millhiser notes, because of the Supreme Court’s timidity in confronting it.
      The court in 1986 opened the door, but only slightly, to constitutional challenges to overly partisan congressional or legislative districting. The fractured ruling in Davis v. Bandemer said a districting plan could be thrown out if the evidence showed “continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.”
      Two decades later, the court confronted in a Pennsylvania case a seemingly egregious example of partisan gerrymandering. After the 2000 census, the GOP-controlled legislature did its best to help the party as it redrew House districts to account for the loss of two seats. Democratic incumbents were paired against each other in two districts, while another Democratic incumbent was moved into a Republican-leaning district. As a result, the GOP moved from an 11-10 majority in the state’s House delegation to a lopsided 12-7 advantage.
      Despite the evident partisanship, the court in Veith v. Jubelirer (2004) left the districting scheme in place. Four conservative, Republican-appointed justices led by Antonin Scalia called for eliminating any oversight of gerrymandering at all. Moderate-conservative Anthony M. Kennedy would not go that far; instead, he left the door open to future challenges if “workable standards” emerged. Two years later, however, Kennedy wrote for a 5-4 majority in rejecting Democrats’ challenge to an overtly partisan House redistricting scheme drawn by the GOP-controlled legislature in Texas (League of United Latin American Citizens v. Perry, 2006).
      With little reason to fear Supreme Court scrutiny, the Pennsylvania legislature, still under GOP control, again drew House districts after the 2010 census to advantage Republicans. The party’s 13-5 majority in the state’s congressional delegation defies the close partisan divide among voters. But this and similar distortions in other states will persist as long as the Supreme Court turns a blind eye to the dishonored practice of political gerrymandering.