“A Crisis of Representation”

McGann, Smith, Latner, and Keena at Balkinization:

In our new book Gerrymandering in America: The House of Representatives, The Supreme Court and the Future of Popular Sovereignty, we look at an ongoing crisis in the way the House of Representatives is elected.

We are concerned that the power that state legislatures have over the composition of the House of Representatives represents a smoldering constitutional crisis, which may itself be linked to the Trump phenomenon.  The distortion in representation that results from partisan gerrymandering, not only in terms of Congressional polarization, which increased further with the 2012 districting plans, but also in the increased likelihood that a majority of voters are denied a majority of seats, contributes to gridlock and ever-higher levels of legislative dysfunction.  This violation of majority rule occurred in 2012, and may occur again in 2016.  Even if Clinton is victorious by a sizable margin (5%+), and a majority of voters support Democratic Congressional candidates, the GOP is likely to retain control of the House.  If this occurs, legislative-executive relations are likely to erode further, weakening our constitutional system’s capacity to respond to challenges at home and abroad.   Unless we are willing to rethink the Supreme Court’s reasoning about how to address partisan gerrymandering, we may be approaching that cliff.

In our book, we demonstrate that the Supreme Court’s decision in Vieth v. Jubelirer (2004), and the partisan districting that followed the 2010 Census, raise fundamental questions about American democracy.  The Court’s decision in Viethremoved the possibility that the Court would invalidate a districting plan on grounds of partisan gerrymandering. This was because a majority of the Court found that there are no suitable standards for adjudicating such claims. In effect, this means that partisan gerrymandering is nonjusticiable, in practice if not in principle.  This has created a loophole that has allowed state legislatures to create very biased districting plans that undermined the egalitarian intent of the reapportionment revolution of the 1960s.

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