The Democrats’ House Majority

No, not really.  But sort of.  Ian Millhiser explains that Democratic House candidates actually got more votes nationwide than Republicans, by around 500,000.  So how could the Republicans maintain their majority?  Simple.  It was gerrymandering.  Nick Baumann at Mother Jones has the goods (h/t Dayen):

  • North Carolina, which Obama lost by around 2 percentage points: 9-4 GOP
  • Florida, which Obama won by around half a percentage point: 17-10 GOP
  • Ohio, which Obama won by nearly 2 percentage points: 12-4 GOP
  • Virginia, which Obama won by around 3 percentage points: 8-3 GOP
  • Pennsylvania, which Obama won by more than 5 percentage points: 13-5 GOP
  • Wisconsin, which Obama won by 6 percentage points: 5-3 GOP
  • Michigan, which Obama won by 8 percentage points: 9-5 GOP

Now, in fairness, it is not all about partisan gerrymandering.  Some of this is also because of the creation of majority-minority districts, particularly in the south.  But that is decidedly a secondary impact.

Last week, I argued that if Obama were to win the electoral college but lose the popular vote, that should not affect his legitimacy as President: that’s the way that the system was set up.  So does that apply here?  Not so much: the Electoral College is created by the Constitution.  Partisan gerrymanders are created by — Republican state legislatures.  They created this distorted system; they can’t argue then that they were simply playing by the rules.

I’m not precisely sure what it means to question the “legitimacy” of some governing institution.  But to the extent that any duly and legally elected House majority is illegitimate, it is this one.  Let’s have none of the idea that the voters wanted to support conservative ideology by returning John Boehner to the Speaker’s chair.  They didn’t.  They wanted change.  And the GOP figured out how to prevent them from exercising their will.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

26 thoughts on “The Democrats’ House Majority”

  1. The Republican legislatures are playing by the rules. The Supreme Court has made pretty clear that Congressional districts must have fairly equal populations, and cannot be constructed to dilute minority voters. It has been almost equally clear that beyond this: anything goes. Gerrymandering is almost as old as this republic. I don’t like it, but it is part of our Constitution, both in terms of Supreme Court rulings and in the sense of the English Constitution. It may be worth pointing out that Democrats often play the same game: e.g., MD and IL.

    I don’t like these rules. But they are the rules.

    1. Well, this is a case of partisan Republicans operating in a set of rule laid down by other partisan Republicans; the Supreme Court decision upholding the 2002-10 Pennsylvania gerrymander was a 5-4 decision, with the Bush v. Gore 5 in the majority. The controlling opinion in that case (Vieth v Jubelirer) also left open the possibility that gerrymanders were sometimes unconstitutional, but AFAICT didn’t specify any standards.

      (My guess: When a ridiculous gerrymander benefits Democrats!)

    2. Correct, and I think it’d be a bad idea to question the legitimacy of the Republican majority in the House.

      At the same time, I think this would be a nice starting point for some electoral reforms. Legitimate or not, I doubt that the result is compatible with the average American’s sense of what a fair and free election should be like. It should not be hard to do a two minute video that explains why the Republicans have a majority in the House despite the Democrats winning the popular vote.

    3. Ebenezer, I think we are not being fully clear on the meaning of “playing by the rules.” The Electoral College system is established by the Constitution; no Presidential candidate can or should try to ignore it. Partisan gerrymanders, however, are not established by the Constitution. The Supremes said that legislatures CAN do this, not that they must. So all I was saying is that there is a very large difference between questioning someone’s legitimacy if they played by unfair rules laid down by others, and questioning someone’s legitimacy if they played by unfair rules laid down by themselves.

      Yes, Democrats play the same game. And if they did so, and maintained their House majority while getting fewer votes than Republicans, Republicans would be at least well within their rights to scoff at the notion that the public actually preferred Democrats.

      The real problem is what we really mean by questioning an officholder’s “legitimacy”. I am not arguing that the House GOP majority is illegal, or that the laws that it passes would not really be laws. But I AM questioning the moral and political legitimacy of anyone who argues that because the House remained with the GOP that that somehow suggests that the public supports Republicans. It just doesn’t. In that sense, Republican arguments and Republican POLICIES are “illegitimate.”

      1. Jonathan,
        I don’t think that “legitimacy” means what I think you think it means. Where I come from, “legitimacy” is a social fact, not a moral conclusion. As with most social facts other than money, it is often empirically debatable. A sufficiently widely-held moral conclusion can invalidate a social fact. But it has to be a pretty widely held moral conclusion: slavery was a legitimate institution in the United States (including the North!) until about 1862.
        On the other hand, gerrymandering is kind of disgusting. On the third hand, a nonpartisan commission has its own problems in a democracy–the same problems as unelected judges. And furthermore, “nonpartisan” anything, if given enough power, tends eventually to become part of partisan politics.

  2. as Ebenezer says, gerrymandering is very much a bipartisan activity. It just so happens that the Democrats did very, very poorly in the 2010 elections and therefore in states that let their legislatures do the redistricting, the gerrymandering favored Republicans mostly. The closest thing to a workable solution is for citizens to demand bipartisan redistricting commissions in their states, which some states have already implemented. But even these don’t always work.

    1. I don’t think the Constitution requires that Representatives be elected on a district basis. A proportional representation system within each state would produce a delegation more closely mirroring the politicalmakeup of the state, I think. PR systems have their hazards – too many small parties making it difficult to get anything done – but that’s not too likely when you do it by state, and it really wouldn’t be the Death of the Republic if a few third-party representatives got in.
      It might even help.

      1. This is a classic and heavily-studied political science issue, as you are perhaps aware. PR is much more representative of partisanship, Westminster variants are much more representative of geography (but that geographic representation is, of course, subject to manipulation through gerrymandering, which can be partially ameliorated by the use of nonpartisan or bipartisan redistricting commissions).

        The real problem with a PR proposal is, as a political scientist at my university likes to put it, turkeys don’t vote for Thanksgiving. In other words, legislators don’t vote to disassemble a system which has worked out well for them. States that have strong ballot measure mechanisms might be able to pass something like a PR-oriented reform. Some states don’t, though.

    1. Assuming that the state legislative districts aren’t equally gerrymandered to keep one party in power. I live in the part of Pennsyltucky that has been referred to as “Alabama in the middle” and it is a very Republican area. But the pockets where Democrats have strength have almost all been split by state legislative district lines and both halve usually elect Republicans who get to draw the districts the next time.

  3. Ohio had a proposal for a bipartisan redistricting commission on the ballot the other day and it went down in flames. It had a simply awful, almost nonexistent campaign so its failure was pretty much preordained.

    The southwest corner of Ohio, where Cincinnati is located and from where I hail, used to send Democrats to Congress. But then the district/the city of Cincinnati was cut in half with each half attached to a largely rural area. The result has been Steve Chabot (now working on his second decade) and Mean Jean, who has just been replaced by Brad Wenstrup the podiatrist.

  4. And as the Ds prepare for 2014, they should keep in mind that they gained 1-2 seats in a year with a big draw at the top.
    If patterns hold, turnout is lower for Ds in 2014, they will lose, and possibly lose big.

    To get the house back, Ds need a solid economy, and the ability to take credit for it. And turnout, and demographics.

  5. See — the solutions have been out there for a Loooooong time, as well as their outstanding every-two-year reports where they can predict with incredible accuracy the exact results in 435 districts without knowing ANYTHING about the prospective candidates.

    Meanwhile, before we go haring off on yet another issue, let’s get back to what’s important: JUDICIAL NOMINATIONS.

    Barry O. just won a huge election and upped the Dems Senate majority. THIS is the time to put the screws to the GOP and stop them from continuing Operation Footdrag: “You want a deal to avoid “the cliff”? Well, maybe I’ll make you one. But we don’t even talk about the deal until we schedule committee votes on every single judicial nominee by February 1, with floor votes to follow immediately thereafter for all those who emerge from committee.”

    Judicial nominations aren’t sexy, but they are crucial — even if we’re too stupid to understand it, the GOPsters aren’t. They made plenty of hay with it. Now it’s time to make them eat that hay.

    1. “But we don’t even talk about the deal until we schedule committee votes on every single judicial nominee”

      But the problem for Obama hasn’t been scheduling the votes, it’s been getting Obama to bother nominating somebody to vote on. Once he’s done that, he hasn’t done any worse than Bush did on getting the nominees through.

      By all means, let’s do something about gerrymandering, and do it for good: Just elect all the representatives by proportional representation, state-wide. Gerrymandering is impossible with that setup.

      Not gonna happen. The problem with basic reforms like this, is that everybody in a position to implement them got there under the old system, and has plenty of reason to suspect they might not stay there were the system reformed.

      1. But the problem for Obama hasn’t been scheduling the votes, it’s been getting Obama to bother nominating somebody to vote on

        I partially agree with you, but remember: a nominee basically puts their life on hold until they get voted on. Long lag times (some times years) are a genuine problem, and they make it hard to find nominees.

        1. This is our chance to fix the long lag times. With the fiscal cliff as leverage and the R’s much more vulnerable to it, we can do this, if the same great minds at electioneering pause for a moment to think about WHY we should want to win them.

    2. Perhaps a more direct aproach would be to eliminate or modify the filibuster for votes on judicial appointments. Reed has already owned up to the dysfunction caused by the filibuster as it stands. The filibuster is predicated on a gentlemen’s understanding to not abuse it. So much for those happy day of yore.

  6. This, like filibuster reform and hand wringing about budget deficits doesn’t get dealt with because both sides love to use it to their advantage when they can. Both parties think they are good at it, so neither party wants real reform. I didn’t see any democrats here suggesting that the legislators correcting the extreme partisan but pro-Democrat gerrymander in Texas was dealing with a fundamentally ugly problem. I just heard that mid decade redisctricting was so unprecedented that it must be illegal. It was no more unprecedented than changing the rules back and forth about who appoints to Senate seats from ‘the governor’ to ‘definitely not the governor’ and back all in the course of six years.

    Essentially I’d like to know if your complaint is that gerrymandering is fundamentally unfair and should be challenged even in the face of short term political detriment, or if you’re merely whining that Democrats didn’t cheat with gerrymandering as well as they have in the past.

    1. Regarding your second paragraph, I obviously cannot speak for Jonathan, but I find the excessive gerrymandering unhealthy for a democracy, regardless of who engages in it (on the other hand, I’m not a Democrat, either).

      A FPTP system in a fair and free electoral system is essentially a competition for the median voter; gerrymandering is a reshaping of the electorate so that the actual majority is somewhere significantly to either the left or the right of the median voter. It’s like putting a crowbar in the Overton window because you can’t move it by convincing the electorate.

      This incidentally, is not just a Democratic concern. Card-carrying conservatives such as Steven L. Taylor and James Joyner also agree that the situation is troubling.

      In practice, I think an electoral system that avoided such manipulations would not actually change the face of the parties very much; after all, the popular vote for the House was split nearly equally; neither party would have to make major adjustments to capture the median vote; neither would the Republican party suddenly have to become very liberal nor would the Democrats have to embrace conservative views; however, they would have to compete on a level playing field. It would also be more competitive in that there would also be fewer “safe” districts (for both sides) and more pressure for candidates to actually convince Americans to vote for them.

      I agree that the existing structures in Washington make such a change unlikely. But it would still be very desirable for any small-d democrat.

    1. I’m most impressed by the 3rd district, which seems to be completely non-contiguous. How can they do that? Why do they even have to, given how Democratic the rest of the surrounding area seems to be?

  7. I don’t know why bi-partisan or non-partisan committees to design the districts have to fail or be co-opted by somebody. They’ve worked in Canada at federal and provincial levels for many years, and no one thinks they’re political (unlike the allocation of seats in Parliament among provinces, which has been political – but that’s because it’s the governing party that drafts the legislation. But after the number is set, the boundaries are not politicized.)

    1. I agree. There are what, nine states with commission based redistricting? “Incubators of democracy,” right? Not that some kind of capture isn’t theoretically possible, but don’t we have some very good evidence to work with? And some political capital the next 4-8 years? I think this is very doable – it’s right down the middle for independents, libertarians (I would think), pretty much anyone not invested in the current system. Legislative redistricting in an antiquated remnant of 19th century government – there’s no doubt we can do better with just a little effort and leadership. I’m talking to you, Reid, Pelosi, Obama – at least start the conversation. In fact, I’ll say that this could be one of those issues that might cross the aisle as it’s so far outside the standard fields of contention. But we have a crappy system, and it has to change.

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