Even if Hillary Clinton pulls off an electoral landslide, and even if the Democrats flip the Senate, Republicans are likely to hold onto the House, where they hold a 247-188 majority.
In large part that’s because the House districts were gerrymandered in 2010 by Republican-controlled state legislatures, part of the brilliantly effective campaign known as REDMAP. This fact, not “gridlock” or “partisanship,” is why the 114th Congress has accomplished so little (and can’t even pass emergency funding to fight Zika). The House is rigged.
Gerrymandering has been going on since the beginning of the republic—the word itself dates to a 1812 redistricting effort by Massachusetts Gov. Elbridge Gerry, which included districts so convoluted that one looked like a salamander.
But 2010 was different.
First, in the wake of their 2008 electoral losses, Republican activists poured unprecedented amounts of money into the 2010 state legislative elections, particularly in blue or swing states, particularly at the tail end of the election cycle. They made huge gains in Pennsylvania, Ohio, Florida, Michigan, Wisconsin, and North Carolina.
Why focus on the states? Because 2010 was a census year, and in most states, state legislatures draw the boundaries of congressional districts. The strategy worked: In 2011, Republicans redrew four times as many districts as Democrats did.
Next, the same group of activists used the new technologies of Big Data to analyze voting patterns and design districts to “pack or crack” Democrats—either crowding them into a few districts, or diluting them across several.
Nathaniel Persily, a Stanford University professor who has served as a court-appointed nonpartisan redistricting effort expert in four states, told The Daily Beast that “the 2010 redistricting process couldn’t have come at worse time for Democrats. That year was the Tea Party election, sweeping Republicans into control of state legislatures. They were in the driver’s seat to draw lines, so they took advantage of it.”
Salon’s David Daley, author of Ratf*cked: The True Story Behind The Secret Plan To Steal America's Democracy, called it “Moneyball applied to politics.”
The results were astounding.
In 2012, for example, Democrats running for House seats got 1.3 million more votes than Republicans—but the minority-elected Republicans maintained a 234-201 majority in the House. In Ohio, where President Obama won the election, Republicans outnumbered Democrats in the congressional delegation by 12 to 4. In Pennsylvania, another Obama-voting state, the margin was 13 to 5.
And in 2014, Republicans got 52% of House votes, but 57% of House seats.
Ironically, thanks to REDMAP, the House of Representatives is designed to be unrepresentative. At least until 2020, it is engineered to elect Republicans.
Persily, however, said the problem runs deeper than just gerrymandering.
First, he said, population patterns play an equally important role. “The elephant in the room is that Democrats aren’t efficiently dispersed in the population as Republicans, because Democrats are concentrated in cities. So even if you had compact districts, you’d end up having a Republican bias.”
No matter how much attention is spent on congressional redistricting, those population patterns aren’t likely to change any time soon.
Second, there’s no obvious way to draw districts because of the Voting Rights Act. Suppose a state simply drew a grid, for example. This might sound appealing, but it would also have the effect of diluting minority populations into majority-white districts. That would violate the VRA.
On the other hand, Persily said, that’s exactly what Republicans did in 2010. “There have been lots of challenges brought by Democrats and civil rights groups alleging that Republicans used race to pack African Americans and Latinos into inefficient districts.” Challenges have prevailed in Alabama, North Carolina, and Virginia.
“It’s the Goldilocks Principle of redistricting,” Persily explained. “You have to take race into account, but not too much.”
Was 2010 really worse than other gerrymandering efforts, though?
“The tools are different,” Persily said, “but the motivations remain the same.” Persily pointed out that Democrats gerrymandered extensively in 2000, but now “the technology is more sophisticated, the data much more granular than historically.”
Moreover, recent elections have been closer than in the past. “Remember, for a hundred years, the South was so solidly Democratic that it didn’t matter what the gerrymanders did… Now, the House could swing one way or the other, so a thumb on the scale can make a difference.”
Is the House hopeless, then? Is there nothing that proponents of fair elections can do, except wait until 2020, when the Democrats will try to be as conniving as the Republicans were in 2010?
There have been encouraging developments.
First, there are cases in the pipeline now arguing that highly partisan gerrymandering is, itself, unconstitutional. (Ironically, one of these involves a gerrymander by Democrats, in Maryland.) The Supreme Court has thus far split on the issue—in one case, they announced six different standards of review—but Persily pointed out that an additional left-leaning justice could bring about consensus.
“These are big constitutional issues – and all of this could change,” he said. “Partisan gerrymandering, race and redistricting, voter rights and voter ID, campaign finance—all of these hinge on one vote.”
Second, independent redistricting commissions got a big boost this year when the Supreme Court upheld Arizona’s commission, despite explicit language that the “legislature” is to draw districts. That case, plus the success of independent commissions in California, offers another way forward.
Third, as the situation becomes more and more egregious, audacious reform proposals such as “cumulative voting”—in which larger districts vote for multiple representatives, allowing more proportional representation—may begin to be seriously considered. And there are various proposals for changing the principles of redistricting to prohibit partisan considerations, for example, or favor compact districts.
Finally, the Republican gerrymander may collapse under its own weight. The “crack” part of “pack and crack” has scattered minority voters into majority-white districts. But this year, some of those white-elected Republicans may be vulnerable, thanks to Donald Trump. In other districts, REDMAP has made elections so safe for Republicans that it’s empowered the Freedom Caucus, the Tea Party, and other hard-right groups to take down establishment candidates.
In other words, Republicans may have gotten more than they bargained for.
Yet despite all of these developments, Persily remained pessimistic. “Whatever reform is proposed, it’s full employment for lawyers: what does compactness mean, what about the Voting Rights Act…. The fact is, courts have become permanent players in the redistricting process.”
If nothing changes, the 115th Congress is likely to look a lot like the 114th: Even if the Democrats take the Senate, nothing President Clinton proposes will likely make much headway in the House. That won’t be because of gridlock, or “the system” in general. It will be because of a deliberate Republican strategy. It will be because the House has been rigged.