Elected despite the voters

Voters lined up in Doylestown on election night. The result in the House didn't match the popular will.
Voters lined up in Doylestown on election night. The result in the House didn't match the popular will. (CLEM MURRAY / Staff Photographer)
Posted: December 04, 2012

By Jan C. Ting

Last month, House Speaker John Boehner noted that while the American people reelected President Obama and a Democratic majority in the U.S. Senate, they were also "renewing our House Republican majority." Boehner added, "With this vote, the American people have also made clear that there is no mandate for raising tax rates."

Here's the problem with Boehner's analysis: Most American voters cast their ballots for Democratic candidates for the House of Representatives. The most recent count shows 58.83 million total votes for Democratic House candidates, about one million more than the 57.83 million cast for Republican candidates.

So why do Republicans retain control of the House, with 234 representatives to only 201 for the Democrats?

The answer is gerrymandering, the drawing of congressional districts to maximize the number of majority districts for one party - usually a state's ruling party - while concentrating the other party's voters in as few districts as possible.

Pennsylvania is a striking example. Because the state elected a Republican governor and a Republican majority in both houses of the state legislature in the Republican landslide of 2010, the GOP controlled the redrawing of congressional districts that was triggered by the 2010 census.

As a result, in this year's election, Republican candidates won most of Pennsylvania's congressional districts - even though most Pennsylvania voters supported Democratic candidates for the House of Representatives. The popular result in the commonwealth was 2.71 million votes for Democratic candidates, again edging the 2.64 million votes for Republicans. And yet the state sent just five Democratic representatives to Washington, not even half as many as the 13 Republicans in the delegation.

Anyone wondering how that was achieved should take a look at the current maps of Southeastern Pennsylvania's Sixth and Seventh Congressional Districts - represented by Republicans Jim Gerlach and Pat Meehan - for two of the state's most egregious examples of gerrymandering.

Republicans note, with justification, that Democrats do the same kind of gerrymandering when they control state governments after a national census. They also argue that their retention of the House majority in spite of their popular-vote loss was not unusual.

In fact, however, the 2012 outcome is an anomaly, reflecting the extreme degree of political polarization and gerrymandering in the country today.

Some have cited as a precedent the election of 1996, when Republicans retained control of the House despite a national majority of votes for Democratic candidates. But sharp-eyed observers have noted that the Louisiana elections that concluded that September give Republicans a national popular majority when added to the November results.

As it turns out, one has to go back 60 years, to 1952, to find another example of a party (the GOP) controlling the House even though the other party's candidates received a majority of the votes. (Similar anomalies occurred in 1942 and 1914, when Democrats ended up in control of the House even though most of the votes were cast for Republicans.)

The solution to this flaw in our democracy is obvious. California has created a nonpartisan commission to reapportion congressional and state legislative districts according to clear and transparent guidelines. Iowa has taken similar steps, and so have Australia, Canada, and many European democracies.

Nonpartisan reapportionment commissions won't guarantee a correlation between the popular vote for House candidates and party control of the chamber. But they can guarantee that if another mismatch happens, it won't be because of deliberate political manipulation of congressional districts by one political party.


Jan C. Ting is a professor of law at Temple University's Beasley School of Law. He can be reached at janting@temple.edu.

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