Further to our post a fortnight ago about the gerrymandering wars in the United States, Nate Silver takes up the topic this week. He has a general point to make about “constitutional hardball”: when is it acceptable to resort to political tactics that are beyond the ordinary or that could be seen as breaches of constitutional norms?*
Silver proposes a three-part test for such actions: whether they can be justified on some principled basis, whether they lead to a stable equilibrium rather than “potentially oscillate out of control,” and whether they meet with public approval. Three reforms that he says would meet the test are control of gerrymanders, statehood for Puerto Rico and term limits for Supreme Court justices.
But as Silver realises, and as we’ve covered here before, what’s justifiable doesn’t neatly line up with what’s practical; the US constitution sets its own traps. So, for example, extra judges can be added to the Supreme Court by ordinary legislation, but introducing term limits would require a constitutional amendment. That will create a major temptation the next time the Democrats hold both the presidency and a congressional majority.
Or consider representation for the territories, another topic that’s come up here. A constitutional amendment was passed in 1961 to give the District of Columbia votes in presidential elections, and a further amendment would be required to give it seats in Congress – which, since it now votes solidly Democrat, would be opposed tooth and nail by the Republicans. But a Democrat majority in Congress could give DC full representation by admitting it as a state, even though that makes much less sense as a matter of principle.
The beauty of the gerrymander problem is that it raises no such issues. Section four of article one of the constitution gives Congress a broad power to “at any time by Law make or alter” regulations for the “Times, Places and Manner of holding Elections for Senators and Representatives.” And this is no mere curiosity; Congress has used that power before, notably in the Uniform Congressional District Act of 1967, which mandates the use of single-member districts.
It would unquestionably be within Congress’s power to repeal that act and provide for proportional representation in all states. Alternatively, if single-member districts were to be retained, it could require a non-partisan process for drawing boundaries, as happens in all comparable countries (including Australia).
This won’t happen soon, but unlike many reform proposals it is no mere pipe-dream. In addition to the fact that no constitutional amendment is required, opponents of gerrymandering have two other big things going their way: firstly, that gerrymanders are highly unpopular, and secondly, that reform is not obviously a matter of partisan advantage one way or the other.
There’s no doubt that voters hate gerrymandering, both for its own sake – why should politicians get to choose their constituents rather than the other way around? – and for the way it produces greater polarisation, uncompetitive districts and unresponsive representatives. This year’s moves can only exacerbate that sentiment. If a serious move for reform takes off, those who stand in its way will be taking a real risk.
Perhaps more important, though, is the fact that no-one is really sure who will benefit from unrestricted gerrymander warfare. There’s general agreement that the Republicans have got more out of it in recent decades, which is why a Republican Supreme Court was so eager to safeguard the practice in Rucho v. Common Cause and Louisiana v. Callais. But that’s been due more to the fact that they’ve been more ruthless about it than to any structural advantage.
With the Democrats now rapidly casting away any remaining scruples and their voters out for revenge, the gerrymandering war is going to produce a lot of casualties on both sides. After a couple of years of this, it’s possible that sufficient support will be found in both parties for a settlement that will hand control back to the voters, in much the way that reform of the Electoral Count Act was achieved on a bipartisan basis back in 2022.
But it may also be that by now the Republican Party’s hostility to democracy will trump even its own self-interest.
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* Note that although the discussion itself is publicly accessible, the footnotes are annoyingly behind a paywall.
The World is Not Enough 