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Proportional Representation

December 30, 2018

Proportional Representation: Ending Partisan Gerrymandering Without the Courts

By: Aaron Stenz, Volume 103 Staff Member

Representative democracy is as American as apple pie. It is enshrined in the foundational texts of our nation.[1] It is an abstract ideal and the functional foundation of our government, and it is imperative that we address any issues jeopardizing the faith that we the people have in it. Partisan gerrymandering presents such an issue.[2] While gerrymandering has been part of American politics since the inception of our country,[3] the advent of ever better technology and algorithms have made it dramatically more efficient and commonplace.[4] Unfortunately, the success of gerrymanders by both political parties has led to a crisis of faith in our democracy: if the composition of legislatures does not reflect actual election results[5] and many votes effectively do not matter,[6] why should Americans have faith in the electoral process or even vote?

I. Gerrymandering: Crisis and the Courts

Recent decades have seen gerrymanders repeatedly challenged in the courts. Although many cases, particularly during the 1990’s, focused on the constitutionality of racial gerrymanders,[7] litigants have also begun to issue challenges to partisan gerrymanders.[8] The success of legal challenges to end gerrymandering, however, has been mixed at best. For instance, in Gill v. Whitford, the Supreme Court held that a group of Wisconsin plaintiffs arguing that the Republican legislature had conducted an unconstitutional partisan gerrymander had failed to demonstrate standing.[9] In short, solving the crisis of faith gerrymanders cause through legal challenges may not be the best option.

II. Proportional Representation as a Solution

Switching to elections systems which rely on proportional representation is one excellent solution. Currently, almost all elections in the United States use the single-member plurality system, where each voting district elects the single candidate who collects the most votes.[10] This system is at the root of many of the problems plaguing American democracy, including wasted votes, underrepresentation of racial and political minorities, low voter turnout, and increasing partisan divides.[11] Although many of these problems are largely caused by gerrymandering, gerrymandering itself is an inherent facet of the single-member plurality system.[12] On the other hand, proportional representation election systems typically involve larger districts electing multiple candidates at a time, with seats ultimately being assigned to candidates or parties in proportion to the percentage of votes received.[13] Advocates of proportional representation, from scholars to politicians and beyond, have written extensively about its merits and its potential for solving the myriad of problems inherent in single-member plurality district elections.[14]However, the single best aspect of proportional voting systems may primarily lie not in the benefits identified by their advocates, but in the relative lack of legal challenges standing in the way of adopting such systems.[15]

III. How to Make the Switch

As counterintuitive as it might seem, changing America’s elections to proportional voting systems at federal, state, and local levels of government would face relatively little in the way of legal obstacles. In contrast, the fight in the courts to end partisan gerrymandering faces a series of legal hurdles, including standing requirements, vague legal standards, and a judiciary potentially reluctant to further insert itself into the contentious and time-consuming redistricting process.[16] Before delving into an analysis of the obstacles to implementing proportional representation at the federal, state, and local levels, it is important to note that the U.S. Constitution does not stand in the way of proportional representation. The primary constitutional requirement applicable to all elections is the requirement of one person, one vote under the Fourteenth Amendment.[17] While this requirement, in a purely linguistic sense, may appear to preclude some forms of proportional voting that allow multiple votes for one office, this is hardly the case. The one person, one vote requirement was implemented to ensure districts contained the same number of voters and make votes have an equal weight, meaning proportional representation would not affect the former and could actually help the latter by reducing wasted votes.[18]

In addition to there being no generally applicable provision in the U.S. Constitution precluding proportional voting, few legal obstacles in federal, state, or local law stand in the way of implementing a proportional representation system. First, at the federal level, the Constitution does not require any specific electoral system for house elections and in fact provides that Congress may make laws governing the election of senators and representatives at any time.[19]Currently, one such law does prohibit the election of more than one representative from each house district.[20]However, this legislation can easily (legally speaking, at least) be repealed or amended to remove this prohibition.[21] In short, changing U.S. House elections to proportional voting systems would be as simple as repealing or amending prior legislation.

Second, most state constitutions also appear not to preclude proportional representation.[22] Both Minnesota’s and Wisconsin’s constitutions, for example, do not mention single member districts, requiring only equal apportionment based on federal census data.[23] Similarly, neither state’s statutes appear to require single-member plurality voting.[24] In states such as Wisconsin and Minnesota, all that would be legally required to transition to proportional voting for state elections would be a new state statute. In other states with more stringent requirements, however, making the transition would most likely simply require the repeal of an existent statute or amendment to the state constitution.

Finally, local elections may be the easiest place to implement proportional representation systems. In many local elections, reform could be accomplished by simple referendums changing the jurisdiction’s charter.[25] In addition, local jurisdictions throughout America have a long history of adopting or advocating for proportional representation systems for their elections.[26] Although some such measures were ultimately repealed,[27] others remain in effect today.[28] In short, very few legal obstacles stand in the way of adopting proportional representation elections at the local level.

IV. Conclusion

In conclusion, partisan gerrymandering constitutes a grave threat to faith in our representative democracy. While legal challenges to individual gerrymanders could potentially succeed, switching to proportional representation presents a simple solution with far fewer obstacles. Proportional representation could arguably solve many of the problems plaguing our democracy today. Perhaps most importantly, however, reforming our election systems to use proportional voting would face relatively few legal hurdles at any level of government. It’s time to end gerrymandering and switch to proportional representation.

  1. See U.S. Const. art. 1; The Declaration of Independence (U.S. 1776).
  2. Gerrymandering is a process wherein political parties or legislators redraw the boundaries of election districts in order to increase the number of seats they are likely to win in future elections. Douglas J. Amy, Real Choices/New Voices: The Case for Proportional Representation Elections in the United States 42 (1993). Gerrymanders typically occur through one of two strategies. Cracking disperses supporters of the opposing party across multiple districts so that they are a minority in all of them, while packing creates a supermajority of opposition voters in a minority of districts and skews the remaining districts in favor of the majority party. See id. at 43–44.
  3. Id. at 42–43 (noting that the term “gerrymander” was coined in 1812 in response to one particularly egregious district, but that the practice existed even earlier).
  4. See Robert Richie & Steven Hill, The Case for Proportional Representation, in Reflecting All of Us: The Case for Proportional Representation 3, 17 (Joshua Cohen & Joel Rogers eds., 1999); see also Amy, supra note 2, at 47 (noting the importance of detailed modern census data to successful gerrymandering).
  5. For example, in the 2018 midterm election in Wisconsin, although Democrats won every statewide race, Republicans retained a stranglehold on both chambers of the state legislature. See Wisconsin Election Results, N.Y. Times (Nov. 12, 2018), https://www.nytimes.com/interactive/2018/11/06/us/elections/results-wisconsin-elections.html (showing that Republicans hold nearly two thirds of the seats in both chambers of the state legislature despite a sweep of state-wide races by Democrats). The districts were drawn by a Republican majority following the 2010 census and challenged as a partisan gerrymander in the recent case Gill v. Whitford. See generally Gill v. Whitford, 138 S.Ct. 1916 (2018). Similar results have occurred elsewhere. See Comm. for Econ. Dev., Let the Voters Choose: Solving the Problem of Partisan Gerrymandering 6–8 (2018), https://www.ced.org/pdf/TCB-CED-Solving-the-Problem-of-Partisan-Gerrymandering.pdf.
  6. See Amy, supra note 2, at 5–6, 45 (noting that “wasted” votes, where a vote supporting a minority party in a gerrymandered district effectively has no impact on the election’s outcome, are a hallmark of the current electoral system).
  7. See, e.g., Shaw v. Reno, 509 U.S. 630, 633–34, 658 (1993) (holding that plaintiff white voters in a majority-minority district did successfully state a claim under the Fourteenth Amendment in challenging a racial gerrymander); see also Kathleen L. Barber, A Right to Representation: Proportional Election Systems for the Twenty-first Century 129–34 (2000); Joshua Rosenkranz, Solving a Legal Puzzle, in Reflecting All of Us, supra note 4, at 49, 51–52.
  8. See Gill v. Whitford, 138 S.Ct. 1916, 1923–26 (2018).
  9. Id. at 1933–34. The Court did, however, remand rather than dismiss the case, allowing the plaintiffs an opportunity to prove standing and leaving open the possibility of a successful challenge in the future. Id.
  10. See Amy, supra note 2, at 1.
  11. Id. at 4–9; see also Michael A. McCann, A Vote Cast; A Vote Counted: Quantifying Voting Rights Through Proportional Representation in Congressional Elections, 12 Kan. J. L. & Pub. Pol’y 191, 191–93 (2002).
  12. Comm. for Econ. Dev., supra note 5, at 2–5; see also Amy, supra note 2, at 6–9, 42–49.
  13. See McCann, supra note 11, at 193. There are several types of proportional voting, including list systems—where a voter simply votes for a party and its list of candidates—and choice voting—where a voter ranks her preference for different candidates and her vote is transferred as her higher ranked candidates are either elected or eliminated. Id.; see also Barber, supra note 7, at 63–80 (providing a nearly exhaustive list of types of proportional representation elections); Ritchie & Hill, supra note 4, at 24–29 (discussing the use of instant runoffs and other methods). The vast majority of global democracies use some form of proportional voting. Amy, supra note 2, at 2–4.
  14. See McCann, supra note 11, at 194–203 (noting the benefits proportional voting could have with respect to coalition building, minority representation, and voter turnout); see also Ritchie & Hill, supra note 4, at 9–29;; Douglas J. Amy, How Proportional Representation Would Finally Solve Our Redistricting and Gerrymandering Problems, FairVote,https://www.fairvote.org/how_proportional_representation_would_finally (last visited Nov. 28, 2018); Matthew Yglesias, The Real Fix for Gerrymandering Is Proportional Representation, Vox (Nov. 6, 2017, 12:38 PM), https://www.vox.com/policy-and-politics/2017/10/11/16453512/gerrymandering-proportional-representation. See generally Amy, supra note 2 (arguing extensively for the benefits provided by proportional representation elections).
  15. The fight in the “court of public opinion,” however, could still be quite difficult. See Amy, supra note 2, at 198–212 (noting, in particular, the potential for strong resistance from major parties and current politicians).
  16. See, e.g., Gill v. Whitford, 138 S.Ct. 1916, 1933–34 (2018); see also Yglesias, supra note 14 (noting judicial reluctance to become the deciding body on redistricting decisions, particularly following the spate of racial gerrymandering litigation in the 1990’s).
  17. See Baker v. Carr, 369 U.S. 186, 207–08 (1962).
  18. See Amy, supra note 2, at 213–14.
  19. U.S. Const. art. I, § 4.
  20. 2 U.S.C. § 2c (2012).
  21. Recognizing this, members of Congress have periodically introduced legislation allowing proportional representation. See, e.g., Voters’ Choice Act, H.R. 3068, 105th Cong. (1997).
  22. See, e.g., Minn. Const. art. IV, §§ 2–3; Wis. Const. art. IV, § 3.
  23. Minn. Const. art. IV, §§ 2–3; Wis. Const. art. IV, § 3.
  24. See Minn. Stat. §§ 200–212 (2018); Wis. Stat. §§ 5.01–5.95 (2018).
  25. See Amy, supra note 2, at 215–16.
  26. Id. at 216–17. Kathleen Barber provides a detailed account of the success of local election reform in Ohio during the 20th Century. See generally Kathleen L. Barber, Proportional Representation and Election Reform in Ohio (1995).
  27. See, e.g., Amy, supra note 2, at 218.
  28. Lauren Payne-Riley, Solutions to Gerrymandering, POLICYMAP (Aug. 7, 2017), https://www.policymap.com/2017/08/solutions-to-gerrymandering/.
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