It's Part of the SPECIAL Constitution in My Head!

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Reed Hundt at TPMCafe offers a rather odd complaint about gerrymandering:

Here's another idea: you could discuss the outrage that the Supreme Court has endorsed gerrymandering that denies the principle of one person-one vote. Amazing fact: a Democratic margin of more than 10% in the House elections on an aggregate basis isn't sure to change even 15 seats. It's obvious that the Constitution is being flouted.

I'm in full agreement that it's sleazy and wrong when incumbents tweak their districts to guarantee their own jobs, but it's going to be an uphill battle to convince me that "one person one vote" is some kind of cornerstone principle of the document that established the Electoral College and a bicameral legislature in which California and Rhode Island get the same number of senators. Of course, the House is supposed to be the more democratic half of the legislature, but even there, it's always been the case that if opinion in a bunch of districts goes from 55 percent pro-Dem to 80 percent pro-Dem, then ceteris paribus this shifts no seats. So "amazing facts" about how aggregate gains might or might not cash out in terms of representation just don't seem particularly significant in themselves. You can certainly argue that a system of, say, proportional representation might be preferable to the current scheme on any number of dimensions—but it's weird to argue as though we already have such a system.

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  1. What is most shocking is the author’s bio:

    Reed Hundt graduated from Yale College and Yale Law School, practiced law for 18 years, and served as chairman of the Federal Communications Commission, 1993-97. Since that date, he has written and lectured about information sector politics, as well as served on various technology company boards.

    Shouldn’t the former chairman of the FCC know a little more about the Constitution?

  2. The Supreme Court has repeatedly ruled against gerrymandering as originally meant (i.e., unreasonably shaped districts). Reasonably shaped districts that happen to protect incumbents or their parties are not “gerrymandering” in the original sense of the word.

    “One person, one vote,” meanwhile, simply means that the districts must have reasonably equal populations and has nothing whatsoever to do with “gerrymandering.”

  3. With all the outrage about the Electoral College, it really does surprise me that I have read nothing on a remotely similar level condemming the Senate’s 2 seats / state.

    The two issues have pretty similar disenfranchising characteristics.

    I don’t believe either need changing, I’m just surprised that folks who speak for changing one aren’t as vociferous about changing the other.

  4. One doesn’t see much carping about the states’ equal representation in the Senate because that privilege is immune from constitutional amendment. Article V: ….no state, without its consent, shall be deprived of its equal suffrage in the Senate.

    It always struck me as odd how a document that contains that proviso could be used to strike down similar arrangements in the several states that guaranteed minimum representation to their political sub-units, such as counties. Curious.

    Kevin

  5. While I certainly think the Electoral College should be maintained, I would not have a problem with eliminating the two electors per state contributed by counting Senate seats.

    That way you could retain the best features of the College, mostly providing a firewall between local election machinery and the federal vote count, while removing the biggest complaint, disproportionate voting power.

  6. The supreme court didn’t endorse it so much as say “We aren’t suited for dealing with it, keep it somewhat connected to reality and do what you want, cause we can’t realistically decide the shape of these districts.”

    Course it took 30 pages and I’m pretty sure they used the word cognizable a lot, but thats what it amounted to.

    Really want to politicize the Supreme Court even more by having them deep in deciding the layout that plays a huge role in deciding what party gets into office? Sounds like a terrible idea.

  7. Julian, et al: Remember, the original Constitution specified Senators be appointed by the Governor of each State, with the approval of his legislature. Senators, thus, were intended to represent the interest of the States as distinct entities, and only represented population indirectly through their state legislature’s approval of the appointment.

    Direct election of Senators was thus the first Federal incumbent protection scheme, with a similar intent to “gerrymandering” in House Districts.

  8. Wait, if I live in a district gerrymandered for the other party I don’t get to vote? And if I live in one gerrymandered for my party I get to vote twice?

  9. Sphnynx: Before 1913, they were elected directly by the Legislature. The Governor was not involved unless the Senator died or resigned when the Legislature was not in session.
    Here’s something for Mr. Hundt to wrap his mind around: Since Republicans began getting a majority of Texas votes for the House of Representatives in the mid-nineties, but earlier Democratic gerrymanders meant that they did not have a majority of Texas House seats until the Delay gerrymander of 2004, is Tom Delay is hero of democracy by Hundt’s standards?

  10. Probably worth adding that by the time direct election was codified in the Constitution, it was already the practice in a majority of states, where legislatures just called a referendum and specified that whoever won would take the seats.

  11. I think that returning to the “archaic” practice of having the state legislatures appoint the US Representatives would actually be a positive step. For one thing, it’d elevate the status of the state legislatures and foster the kind of independence that limits the federal government. To me, that would be more indicative of the health of a constitutional republic than any of this one-man-one vote tripe.

  12. MikeP-

    You make the best argument in favor of the electoral college. However, even if you got rid of the 2 bonus electors, the bloc allocation of electors would still leave plenty of room for mismatches between the electoral and popular vote.

    And the winner-take-all allocation also makes high-stakes recounts more likely. If recounting a state can swing 25 electors, there’s a good chance that a recount will matter. OTOH, if electors are allocated proportionally, then recounting a state can swing at most one elector, which only matters if the margin is one electoral vote.

    If I could design the system from scratch, I’d get rid of the 2 extra electors, and have each state allocate electors proportionally.

  13. I remember reading as an argument for the direct election of Senators that before direct election or de facto direct election as Julian mentions, state legislatures used to get absolutely nothing done because they were in gridlock over picking US Senators. Funny, that seems to me to be an argument for repealing the 17th amendment.

  14. Matt: did you mean State leges to choose Senators, as originally done? You wrote “Representitives”as in members of the House….
    Great thread….

  15. I understand the arguments against the 17th amendment, but I don’t really see how a politician chosen by politicians will be much better than a politician chosen by us. Might not be any worse, but I doubt it will be much better.

    And, as Julian said, most states already had de facto direct election of Senators.

  16. Delaware once went four years with one of its Senate seats unfilled and two of those years with both seats unfilled. Other states had lesser deadlocks, but it would probably be an exaggeration to say it happened commonly.
    It would be interesting to try to figure out what the current party composition of the Senate would be if they were still elected by the legislatures (assuming a majority Republican or Democratic legislature always elected a Senator of that party).

  17. James: New York would never have any senators. Who Sheldon Silver wouldn’t block, Joe Bruno would.

    We’d constantly “abstain, courteously.”

  18. The 3/5ths compromise demonstrates that the idea of “one man, one vote” was not a value thought important to the ratifiers.

  19. So the argument that each person should have an equal vote in government is invalid because the people who wrote the constitution didn’t quite believe it?

    Remember, those people were the elite, trying to figure out the best way to protect their interests. Their ideas were often good ones, but they weren’t infallible.

  20. I understand the arguments against the 17th amendment, but I don’t really see how a politician chosen by politicians will be much better than a politician chosen by us.

    Because the Senators were supposed to represent the states, to give the states a chance to act as a counterbalance to overweening federal power.

    And, oddly, the growth in federal power dates back to not long after we went to direct election of Senators. Hmm.

  21. Shouldn’t the former chairman of the FCC know a little more about the Constitution?

    Well, given that he went to Yale Law…

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