By John B. Anderson and Robert Richie
The Supreme Court's decision last month in Vieth v.
Jubilirer to uphold Pennsylvania's congressional
redistricting plan demands that we confront an uncomfortable
fact: We must either change our winner-take-all electoral
system or accept the degradation of democracy.
No justice disputed that Pennsylvania Republicans had
pursued an aggressive partisan gerrymander nor that
legislators around the nation draw partisan and
pro-incumbent gerrymanders that leave most voters without
the means to hold their representatives accountable. But the
Supreme Court majority saw no constitutional violation, in
large part due to the paradoxes and political consequences
inherent in efforts to fix the way we draw districts.
Someday, the April 28 decision in Vieth may be seen for what
it truly is: the death knell of a winner-take-all,
single-member district system that allows --indeed,
inevitably results in -- llopsided contests, distorted
representation, and gerrymandered outcomes.
A Quick Tutorial
Every 10 years the U.S. Census releases new population
figures, and elected officials set to work carving up the
political landscape into new legislative districts with
equal numbers of constituents. Armed with increasingly
sophisticated software and more precise demographic data,
incumbents in most states quite literally choose the voters
before the voters choose them. Most voters are locked into
one-party districts where their only real choice is to
ratify the party's nominee.
In 2001, both Republicans and Democrats elevated incumbent
protection to new heights. In California, incumbent U.S.
House Democrats paid $20,000 apiece to a redistricting
consultant for "designer districts." Republicans
accepted this cozy arrangement in exchange for their own
safe seats. The result in 2002 was 50 incumbent landslides,
with no challenger winning even 40 percent of the vote.
Nationally, only four challengers defeated House incumbents,
in history. For the third consecutive election, fewer than
one in 10 House races were won by competitive margins.
The lockdown of the U.S. House has major repercussions for
representative government. Men continue to hold more than 85
percent of seats, and the number of African-Americans has
decreased from its high. Leadership is essentially fixed,
with partisan control of the House changing just once since
1954. Members are polarized, with very little compromise and
negotiation across party lines.
Gerrymandering clearly contributes to this dismal state of
democracy, but it's less of a problem than the fact of
single-member districts themselves. Gerrymandering can be
effective only when voters are predictable. While most
voters and districts typically have leaned toward one party,
both the percentage of partisan voters and the number of
partisan districts have risen sharply since 1994, when the
Republican takeover led voters to see the House "in
play." Today, few voters consider candidates' personal
characteristics over their party
The combination of predictable voters, hardening partisan
divisions, high-tech tools, and the general free hand given
to legislators creates a perfect storm for no-choice
elections -- one that fairer redistricting can tame only at
Enter the Supreme Court. The Vieth case was its first
political gerrymandering case since Davis v. Bandemer in
1986, when the Court dangled the potential of political
gerrymandering claims, but set the bar so high that
plaintiffs have only once been successful.
The Vieth appellants challenged a partisan gerrymander that
led Republicans to win 12 of 19 seats in 2002, with the
potential for two more in 2004, despite a statewide tilt
that has produced Democratic presidential victories since
1988. This Republican success in Pennsylvania -- as well as
in Ohio, Michigan, and Florida -- inspired House Majority
Leader Tom Delay to re-open redistricting in Texas, where
Republicans rammed through a plan that may cost Democrats
The Supreme Court's decision to reconsider political
gerrymandering raised the question of whether a majority
might see a means to protect voting rights and democratic
accountability. The historic problem for the courts has been
how to pick and choose among standards that inevitably have
partisan consequences and frequently clash with one another.
More competitive districts encourage accountability, for
example, but can produce a biased outcome statewide or
prevent fair racial representation. More compact districts
seem sensible, but can result in a biased outcome where one
party's total vote is geographically concentrated. And
judges face the specter of Bush v. Gore-type accusations of
partisanship whenever they rule in one party's favor -- as
indeed their 5-4 decision in Vieth could appear partisan.
In that light, the best approach for the Vieth Court might
have been dramatic intervention, on the scale of the 1960s
reapportionment cases that required districts of equal
population. Surveying the endless machinations of
redistricting, the Court could have concluded that fair
elections demand nonpartisan voter registration, election
administration, and redistricting, and therefore prohibited
use of all partisan data in line-drawing. While this
one-time edict would have required new redistricting almost
everywhere, it would also have set an unambiguous standard
that would have kept judges out of future redistricting.
Given that no justice sounded ready for such a sweeping
ruling, however, it should be no surprise that Vieth
resulted in five separate opinions. Constitutional scholars
Daniel Lowenstein and Jonathan Steinberg pointed out in the
UCLA Law Review in 1985 that "there are no coherent
public interest criteria for legislative districting that
are independent of substantial conceptions of the public
interest, disputes about which constitute the very stuff of
politicy." Rational justices presented with the same
facts can come to a variety of cconclusions.
Lowenstein and Steinberg questioned the justiciability of
claims over single-member districts. They argued that any
claim based on individual rights is flawed because
winner-take-all elections always leave many individuals in
districts where they have little ability to elect candidates
of their choice: "So long as winner-take-all district
elections are allowed, the claim that gerrymandering
infringes individual voting rights can have no merit."
But if anti-gerrymandering theories must instead rest on
group rights, they noted that the normal arenas for clashes
between groups are the political branches, not the courts.
Although not ready to concede the case against
anti-gerrymandering suits for fairer single-member
districts, we agree with Lowenstein and Steinberg that
redistricting claims are most coherent when challenging the
very concept of winner-take-all elections. Certainly the
failure to do so undercut arguments for judicial action in
The appellants creatively argued, for example, that
democracy requires that if a group of voters -- in this
case, Democrats in Pennsylvania -- win 51 percent of the
total vote statewide, that group should have a real
opportunity to win a majority of seats. But the logic of
single-member districts does not support claims based on
statewide fairness. As Justice Antonin Scalia in his
plurality opinion points out, "In a winner-take-all
district system, there can be no guarantee, no matter how
the district lines are drawn, that a majority of party votes
statewide will produce a majority of seats for that
Indeed, winner-take-all elections regularly violate the
principle of majority rule based on statewide vote totals
and can easily do so even after nonpartisan redistricting.
Iowa Democrats have not won more than 20 percent of House
seats in districts drawn by the state's much-vaunted
nonpartisan system for more than a decade, although they
regularly win the state's presidential race and at least 40
percent of the total congressional vote.
Only non-winner-take-all, multiseat district systems are
designed to fully and accurately represent the majority of
voters. Full-representation systems avoid the Vieth appellants' questionable suggestion
that the rights of a group of voters constituting about 50
percent of the electorate are more worthy of protection than
the rights of smaller but still substantial voter groups.
And full-representation voting would address concerns raised
in the Vieth opinions of Justices Scalia, Anthony Kennedy,
and Stephen Breyer.
Kennedy writes in his concurrence that the First Amendment
might offer some promise for gerrymandering claims on behalf
of groups of voters receiving "disfavored treatment by
reasons of their views." His logic would be even
stronger if the First Amendment protected the
representational rights of a range of voter groups, not just
those large enough to win single-member elections.
Scalia notes that even "if we could identify a majority
party, we would find it impossible to assure that the party
wins a majority of seats -- unless we radically revise the
States' traditional structure for elections." Exactly.
Breyer in his dissent most directly addresses
winner-take-all elections and "why the Constitution
does not insist that the membership of legislatures better
reflect different groups of voters." He states that the
Constitution demands "a method for transforming the
will of the majority into effective government." But
his subsequent discussion reflects a primitive understanding
of comparative electoral systems, suggesting that the only
alternative to single-party-majority governments, elected by
single-member districts, is coalition-ridden, multiparty
governments like those of Italy and Israel. In fact, there
are other viable alternatives.
We Have History
Scalia's use of the word "radical"and Breyer's
specter of coalition-ridden Italy point to an underlying
problem: Rather than interpreting the Constitution, the
justices are acting as political scientists, and rather poor
ones at that, in leaving undisturbed the status quo of
Far-from-radical, full-representation voting methods have a
lengthy history in the United States. In fact, Justice
Clarence Thomas discussed them quite cogently in Holder v.
Hall (1994), noting that "from the earliest days of the
Republic, multimember districts were a common feature of our
political systems." Non-winner-take-all voting methods
used here (in a growing number of cities) and in some other
nations have led to largely two-party systems, yet still
resolve nearly all political gerrymandering concerns -- and,
importantly, all the conflicts the Court has faced in trying
to ensure that racial minorities can elect candidates of
If non-winner-take-all systems would constitute no
"radical" change, there is simply no
constitutional reason to cling to single-member districts.
Indeed, Illinois shows how alternatives to winner-take-all
elections can enhance our political traditions rather than
fundamentally alter them.
From 1870 to 1980, the Illinois lower house had three-seat
constituencies elected by cumulative voting. Voters had
three votes each, which they could give to one candidate or
spread among a few. The majority party usually won two
seats, often with two candidates reflecting different
elements within the party. The third seat usually was won by
another party with support from about a quarter of the
After the system was replaced in 1980 (due to a citizen
initiative that sharply reduced the number of
representatives), the Illinois legislature became much more
polarized. Today most longtime leaders in both parties
support the return of multi-seat districts, as evidenced by
the 2001 recommendation of a bipartisan commission led by
former Republican Gov. Jim Edgar and former Democratic Rep.
Abner Mikva. The commission argued that multiseat districts
would lead to greater cooperation between the parties and
fairer representation across the state.
The Illinois system's one downside -- the fact that parties
often nominated only two candidates to avoid splitting the
vote -- could be addressed by adopting the choice voting
method used in Ireland. That system lets voters indicate
their first, second, and third choices, so that voters whose
first choice doesn't win a seat can still help elect their
second or third choice. Also, to ensure greater accuracy of
representation statewide, a few "add-on" seats
could be awarded to underrepresented parties, as recently
proposed in the United Kingdom.
Many students of American democracy and nearly every major
newspaper, from The New York Times to The Wall Street
Journal, warn that our democracy is in crisis because there
is so little competition and accountability in congressional
elections. But without challenging the dogma of
winner-take-all districts, any reforms will fall short of
addressing the real crisis. To confront the political
realities of the 21st century and rebuild a vibrant,
accountable representative democracy, we must turn to
American systems of full representation.
John B. Anderson is a former member of Congress, one-time
candidate for president, and currently professor of law at
Nova Southeastern University. He is chairman of the Center
for Voting and Democracy (www.fairvote.org
Robert Richie is the Center's executive director.