PR can kill the gerrymander.
In a 5-4 decision that’s a travesty of justice, the Roberts Supreme court today ruled that there are no constitutional limits on gerrymandering. Justice Kagan’s dissent shredded their logic, noting that “courts across the country… have coalesced around manageable judicial standards to resolve partisan gerrymandering claims.” But this is about power, not logic.
How, then, can we level the playing field, and allow the voters a real choice? How can we make sure that Democratic voting majorities can translate into Democratic legislative majorities?
State-level action is one option. We can and should do what we can to push initiatives, legislation, and state lawsuits to restore true democracy. But let’s be honest: this is, by its nature, an uphill battle. Gerrymandering means self-perpetuating, entrenched majorities; and in most cases, these are as anti-Democratic as they are anti-democratic. We may win the occasional victory in this battle, but the problem of gerrymandering will continue.
So, that leaves Congress as our best hope. Of course, to pass anything through Congress, we’ll need a Democratic trifecta in 2020. From here on, I’ll assume that we’ll all be working our asses off to get that, and explore what we could do next.
To understand how to fix gerrymandering, you have to understand what gerrymandering is. Here’s the best definition I know:
Partisan gerrymandering means drawing district lines to ensure that one party wastes more votes than another.
Specifically, a Republican gerrymander wastes Democratic votes in two ways. “Packing” means drawing a few districts with a large supermajority of Democratic votes. If 90% of one district votes Democratic, but 50% would have been enough to win, then the other 40% of those votes are wasted. And “cracking” means drawing many districts with a smaller — but still reasonably safe — Republican majority. If there are 4 districts which are 60/40 Republican, then those 40% Democrats in each district are wasted. Combined, the 5 districts I’ve mentioned would reliably elect 80% Republicans, even though on average 50% of the votes are Democratic.
And despite the fact that the word originates from a lizard-shaped district, it’s not always necessary to draw funny-shaped districts in order to gerrymander. Republican gerrymanders can be particularly easy to do because Democratic (minority) voters often naturally cluster in more-or-less segregated urban neighborhoods.
This means that making rules about how to draw districts, while it may eliminate some of the most egregious cases of gerrymandering, can’t fully level the playing field. The fairest possible district lines must still make tradeoffs between different goals: wasting votes, unaccountable safe seats, minority voting power, natural geographic boundaries, etc. It would be crazy to expect even the fairest districting process to give perfect partisan proportionality; and because of the aforementioned Democratic clustering, any bias is more likely than not to tilt towards the Republicans.
Three ways to cut the same 50 voters into districts. Note that the second example has a partisan advantage for orange even though the districts are nice and compact.
And that’s even without them using their state-level power to put a finger (or an elbow) on the districting scale. Sure, a well-written law would have enforceable teeth to stop that kind of thing, but it would probably involve fighting things out in court, with the Republicans reaping the benefit of the skewed maps in the mean time. And of course, we’ve already talked about how the courts aren’t necessarily on the side of justice here.
But there is another solution.
If you can’t stop Republicans from drawing maps that weaponize wasted votes, why not just stop wasting votes altogether?
And that is the idea behind proportional representation: #ProRep.
You’ve probably heard the phrase, “it’s a republic, not a democracy.” In many cases, that’s just a smarmy, sophomoric way to say “all votes are equal, but Republican votes are more equal than others.” But there’s actually the seed of a real, valid philosophical idea there; and as the saying goes, reality has a well-known liberal bias.
In a pure, direct democracy, citizens would have to debate and vote every law directly. This is, of course, unworkable. We don’t have the time or expertise to each worry about every new law, so we the people delegate our sovereign power to representatives, so they can legislate in our stead. This legislation-by-proxy is one meaning for the word “republic”.
(Note: if somebody tries the “republic not a democracy” line on you on some drive-by setting like Twitter, the complicated argument I’m giving here is probably not the best comeback. Just tell them that the most basic meaning of “republic” is “a country with elections and no monarchy”; it’s basically synonymous with “democracy”, and America is a democratic republic. I’m granting the distinction between these ideas for the sake of argument here, but usually, you don’t have time to go into this much detail.)
If we’re going to legislate at one remove via representatives, the next question is, who represents who? The 18th-century British answer to that question, copied by the American founding fathers, was that the legislature should be (at best) geographically representative, by districts. This means that at least half the votes in each district are wasted (and, if there are more than two parties, maybe more than that).
If you’re a Democrat in a Republican district, or vice versa, are you truly “represented” by somebody you voted against and whose ideals you entirely oppose? The polite fiction in America is that that person is still “your” representative, and that your citizen’s rights to petition your government are best exercised by speaking “as a constituent” to that person. But as congressional votes grow more and more polarized, that idea of purely-geographic representation gets less and less realistic.
While the US, UK, Canada, India, and a few other mostly-English-speaking countries are still using this antiquated system, most of the world has moved on to some form of #ProRep. Instead of merely representing funny-shaped land areas, legislators can represent the citizens in more than one way. For instance, in a mixed-member proportional (MMP) voting method such as in Germany or New Zealand, voters are represented by both geography and party. Other proportional methods, such as single transferable vote (STV; also known as multi-seat Ranked Choice Voting) represent voters by both geography and individual ballot rankings. And yet others could include some guarantees of ethnic or gender representation into the mix as well.
Note that the idea of “proportional representation” and that of “eliminating wasted votes” go hand-in-hand. As you saw when I was talking about packing and cracking, in our current choose-one voting method, any votes in excess of the 50% needed to win, as well as any votes that don’t reach that threshold, are wasted. One way to define proportional representation is, it’s what happens when you raise that threshold of votes necessary to win each seat above 50%. For instance, in a state with 9 congressional seats, the threshold could be as high as 90% of the average votes of a current district; or, in other words, 10% of the votes of the state as a whole. By the time you’d filled all 9 seats, over 90% of the statewide voters would have helped elect a representative whom they truly supported at some level, leaving under 10% of the votes as wasted.
(Note: it’s impossible to avoid the possibility of such a leftover rounding error of wasted votes. So my suggestion above that proportional representation “eliminates” wasted votes is a tiny bit overambitious. Still, the more seats you elect at once, the smaller the rounding error can be; so compared to the current vote wastage of over 50%, I think “eliminate” is a fair word.
(Furthermore, just because your vote is not wasted and you have a true representative in the legislature, doesn’t mean you’ve “won” the election. If one ideologically-unified party got 51% of the seats, the other 49% might have fair proportional representation, but they still wouldn’t be passing much legislation. Politics will always have winners and losers; all #ProRep does is make sure you don’t lose before you even get into the room.)
Nice theory, but what about reality?
In practice, what I’m suggesting here is that we should be laying the groundwork for a Democratic trifecta in 2021 to pass federal legislation requiring all states without independent redistricting commissions to use proportional representation.
Here are some questions and answers about this idea:
Is it constitutional?
Yes.
The Constitution gives citizens the right to equal protection of the laws (14th amendment); gives Congress the power to legislate to ensure voting rights are not abridged for racial reasons (15th amendment); and even mandates that Congress should guarantee that states maintain a “republican” (ie, in modern terms, democratic) form of government (article IV, section 4). Though this latter clause has fallen into disuse because an 1849 decision decided that it was not a valid basis for lawsuits, it is still a reasonable basis for Congressional legislation.
More specifically, the Constitution gives the federal Congress the right to determine the “time, place, and manner” of Federal elections (article I, section 4). In practice, Congress has in the past used this power — for instance, it’s currently against Federal law for a state to use any system except single-seat districts for the House of Representatives — and their right to do so is well-established.
In practice, this means that it would be indisputably Constitutional for Congress to require #ProRep for House elections, and arguably so for them to require #ProRep for state legislative elections as well.
Note that the proposal above doesn’t even go that far. I suggested that the law should only require #ProRep for states without independent redistricting commissions (that is, without #FairMaps). I think that #ProRep is even better than #FairMaps, but it’s certainly worth compromising in this case, to start out by solving the serious problems of deliberate partisan gerrymandering, and mop up the smaller ones of accidental gerrymandering and wasted votes later.
Is it politically viable?
Yes.
Of course, the congresspeople who’d be voting on this idea would have won their seats under the current system. So it’s certainly reasonable to ask whether they’d be willing to change the rules that had already let them win.
The first response is to note that ending gerrymandering is very much in the interests of the Democratic party. In our current gerrymandered world, it wouldn’t be out of the question for the Democrats to win the popular House vote by a margin of over 8%, and still hold a minority of House seats. Yes, there are a few states, such as Maryland, where Democrats have a gerrymandering or other structural advantage; but in the current era of ruthless, computer-aided gerrymandering, the overall Republican advantage from this trick is clear. So on a partisan basis, there would certainly be a good reason for Democrats to take this idea seriously.
But you still need a #ProRep method which wouldn’t be too disruptive to Democratic incumbents. Luckily, such proposals do exist.
The aforementioned multi-seat Ranked Choice Voting (msRCV; similar to the single-seat version now used at the statewide level in Maine and at the muni level in more and more cities) is one such proposal. Used for most elections in Ireland and some in Australia, this system would consolidate voters into larger districts of 3-5 seats each; allow voters to rank candidates in order of preference; and ensure no more than 16%-25% wasted votes in each district.
Another, more recent, proposed method is PLACE voting. Under this method, districts would still be just one seat each, and voters would still only have to choose one candidate. But there would be a few differences from the current system:
- If you liked a candidate from some other district best, you could write them in on your ballot. This would give you maximum choice — unlike msRCV, you wouldn’t even be limited to vote within your 5-seat local area — with minimum hassle — you wouldn’t have to rank dozens of candidates, as I have to do in the msRCV here in Cambridge, MA.
- If your favorite candidate didn’t win, your vote would transfer to another similar candidate. Those transfers would progress in three stages. First, your vote would go to one of the same-party “faction allies” that your candidate had predesignated; then, to any remaining same-party candidate; then, to one of the out-of-party “coalition” allies that your candidate had predesignated. The upshot is that, without extra hassle for you, your vote would not be wasted, staying with as-similar a choice as reasonably possible.
- Because of these possibilities for cross-district voting or transfers, the threshold to win a seat would be almost an entire district of votes. Outcomes would be proportional, and only a small rounding-error worth of votes would be wasted.
The full rules for PLACE voting, and the rationale behind those rules, are available here.
PLACE voting has not yet been implemented anywhere, so in the short term, msRCV may be more practical. But as soon as PLACE can be demonstrated in practice, I think it may quickly become more viable politically than msRCV. It gives voters more breadth of choice while keeping simpler ballots; and is less politically disruptive to legitimately-popular majority parties and/or incumbents.
Is this only about helping Democrats?
No.
Proportional representation is about ensuring that the majority of voters get the majority of seats. That is not, in itself, a partisan idea. The only reason I’m discussing it here on a partisan Democratic website is that in practice, gerrymandering has become a Republican trick.
Any kind of proportional representation, and especially the two specific methods discussed here, has advantages beyond just partisan fairness. For instance, #ProRep is much fairer to underrepresented groups such as women and minorities. A well-designed #ProRep system is even fairer for representing the various sub-factions within a party.
Furthermore, #ProRep would help reduce the polarizing zero-sum incentives that have created such political monsters as Mitch McConnell. There would be room for smaller parties that allied with the two bigger ones, giving more maneuvering room to find win-win compromises.
In general, getting rid of wasted votes would mean increasing voter power. This reform would thus go hand-in-hand with other pro-voter reforms such as campaign finance.
Is this the only reform our voting system needs?
Of course not. We should also support:
- Automatic voter registration
- Campaign finance reform, including limits, reporting requirements, and democracy vouchers
- Tax rebate for voters (soft “mandatory voting”; you could of course vote blank if you wanted)
- Better single-winner voting methods such as approval voting, STAR voting, or RCV.
- Robust voting rights protections
- Secure election procedures and technology
- Statehood for DC and an offer of statehood for Puerto Rico
- Abolishing the filibuster and overall weakening the unrepresentative Senate
All of these reforms would work together and add up to more than the sum of their parts. Together, they would let us take back our democracy and pass the crucial laws we need in other domains — be that climate change, jobs, health care, civil rights, etc.
What can you do to help?
The Fair Representation Act, as submitted by representative Don Beyer (D-VA), would require both nonpartisan redistricting commissions and msRCV elections for the House of representatives. Though this is a bit redundant — with proportional representation, the incentives for partisan gerrymandering would basically evaporate, so nonpartisan commissions would not be nearly so important — it’s a great first step. Contact your representative and urge them to cosponsor this legislation.
Also, the Center for Election Science, though it mostly focuses on single-winner elections for now, is by far the smartest voting method reform organization out there. Check them out, and support them if you can.
If you want to learn more about this issue, I can post more links in comments.
