Redistricting Watch: Federal Authority in Historical Perspective

Note: This post is long; those on the Sunday show recaps are beneath it, so scroll down for them.

Today, July 17, marks the 261st birthday of Elbridge Gerry (pictured at left; his last name is pronounced like 'Gary') - signer of the Declaration of Independence and the Articles of Confederation; one of three delegates to the Constitutional Convention not to sign the finished product; Masschusetts congressman and governor; representative to France during the XYZ Affair; and vice president of the United States under James Madison.

Gerry's most important legacy, however, did not arise from any office he held, but from a plan he publicly supported in 1812 to redraw the lines of Massachusetts' congressional districts - a plan that came to bear his name, and one which began a trend that has plagued the American political system ever since. The maneuver, proposed and pushed by Democratic-Republicans (aka Jeffersonians) in the state legislature, was designed to skew Massachusetts' representation in the House of Representatives away from the Federalists. Angered opponents blamed Gerry, and one Federalist-backed newspaper published a cartoon (at right) depicting one of the oddly-shaped districts as a salamander - which cartoonist Elkanah Tinsdale renamed the "Gerry-Mander" in honor of the governor.

Gerrymandering, as the process has become known, is covered well in the Wikipedia article on the subject, which includes maps of some of the more egregiously-drawn Congressional districts. Instead of districts based on objective criteria, the vast majority of states today use partisan political considerations and incumbent-protection provisions to decrease competitiveness in congressional elections and in effect allow representatives to choose their voters rather than the voters to choose those who will represent them (as the Centrist Coalition has noted in its statement on this subject).

As I have written in previous Redistricting Watch posts (linked below), Rep. John Tanner (D-TN) has introduced a bill to reform the process, and put an end to the political gerrymander once and for all in those states where it is still permitted to thrive. Under Tanner's proposal, indepedendent commissions in each state would draw district boundaries based on:

a) adherence to the principle of 'one person, one vote';
b) mathematical equality for each district in the state, to the extent possible;
c) "consistency with the Voting Rights Act of 1965 and other federal laws";
d) following pre-existing political subdivisions, to the extent possible;
e) compactness; and
f) geographic contiguity.

The commissions would be forbidden from taking into account the voting history of any district's population, the political party affiliation of the district's residents, or the residence of incumbent House members. Tanner's bill, which has attracted more than thirty cosponsors since being introduced in late May, is the best current proposal on the table to deal with the problem at a national level. It would not, of course, affect those states where redistricting is already done in fair, bipartisan ways - nor would it keep states from acting on their own in the future. But passage of the Tanner proposal would not only increase the number of competitive House races in any given election (just 36 of 435 - 8% - in 2004), but also would allow the voters to have a real choice when they go to the polls, not a predetermined result.

Each time I post about Tanner's proposal, I get questions regarding the constitutionality of such a measure. Does Congress have the power, people ask, to require states to redistrict in a certain way? Indeed, I would argue: Congress is designated the ultimate arbiter of regulating the "Times, Places and Manner of holding Elections" for its members, under the first clause of Article I, Section 4 of the Constitution. Each state's legislature is responsible in the first degree for making those determinations, but "Congress may at any time by Law make or alter such Regulations...," according to the relevant section.

James Madison, speaking at the Constitutional Convention on August 9, 1787, clearly stated the case for federal supervision of congressional elections, saying in part "... the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. ... It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd all vote for all the representatives; or all in a district vote for a number allotted to that district; these & many other points would depend on the Legislatures. and might materially affect the appointments. Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they they wished to succeed ..." [internal spelling preserved, emphasis added].

Madison clearly envisioned a potential federal supervisory power over congressional elections, and he specifically mentions the question of district-drawing, as well as the dangers that could result if matters are left exclusively in the hands of the states. This provision in the Constitution sparked bouts of opposition from Anti-Federalists both nationally and in the state ratifying conventions, who argued (unsuccessfully) that this provision would allow the federal government to completely undercut the powers of the state governments (see Federal Farmer No. 3, 10 October 1787; Vox Populi No. 1, 29 October 1787; Brutus No. 4, 29 Nov 1787, among others).

Federalists in the states generally defended the clause in the ratifying conventions by arguing that it was necessary and proper to "throw the exercise of this power into the hands of the state legislatures; but not that it should be placed there entirely without control" (James Wilson, Pennsylvania convention, 28 October 1787). They argued that if Congress were not given the ultimate power to govern the elections of its members, states might decide not to seat representatives at all: "And shall the existence of the House of Representatives, the immediate representation of the people in Congress, depend upon the will and pleasure of the state governments? ... [W]e were obliged to guard even against possibilities, as well as probabilities" (ibid). Thomas McKean, in the Pennsylvania convention on 11 November, 1787 added "Why are we to suppose that Congress will make a bad use of this power, more than the representatives of the several states?"

Alexander Hamilton took up the defense of the provision in three essays in The Federalist: 59, 60, and 61. He argued, most basically, "that every government ought to contain in itself the means of its own preservation ... it will therefore not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways, in which this power could have been reasonably modified and disposed, that it must either have been lodged wholly in the National Legislature, or wholly in the State Legislatures, or primarily in the latter, and ultimately in the former. The last mode has with reason been preferred by the Convention. They have submitted the regulation of elections for the Federal Government in the first instance to the local administrations; which in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that imposition necessary to its safety" [from No. 59; emphasis added].

I must confess I chuckled a bit at the use of the phrase 'extraordinary circumstances' when I read it. The opacity of that formulation (then and now) is frustrating, and it's difficult to conclude definitively whether Hamilton's extraordinary circumstances mean anything less than outright refusal of a state to seat representatives. However, drawing on some of Hamilton's statements in Federalist 60 and 61, I believe that Hamilton, like Madison, did envision a certain role for the federal government in overseeing elections of House members, even in cases short of rebellion. I would dare to suggest that elections which are only 8% competitive, and in which 98% of all incumbents are regularly reelected are in fact extraordinary circumstances, in any and every sense of the term.

These examples are drawn from the very early days of the Constitution, prior to the rise of the powerful and entrenched political parties in each state. There is much more to say to complete the historical perspective of a federal role in redistricting issues, including a look at what federal actions have been taken over the years and how constitutional jurisprudence has come to view this issue. I look forward to writing further on this topic in the coming days and weeks, but I wanted to get this first installment out to coincide with the birthday of the man who lent his name to the insidious gerrymandering process.

Happy Birthday, Mr. Gerry. Someday perhaps we'll be able to remember you for one of your many accomplishments, instead of the procedure bearing your name that has caused immense damage to the state of American democracy.

Previous Redistricting Watch posts:
- "Blue Dogs, on the Scent" (7/12)
- "Cosponsors Update" (7/1)
- "Links, News, and Views" (6/24)
- "Polarization & Collegiality" (6/24)
- "Centrist Action on Redistricting Reform" (6/23)