The Enduring Bipartisan Lessons of the 2004 Election:
The Need for Constitutional Reform, and for Supreme Court Intervention on Gerrymandering

By EDWARD LAZARUS

Thursday, Nov. 11, 2004

Political and legal commentators will be dissecting this election for many months to come; and Democrats will no doubt be contorting themselves for even longer, to figure out how to avoid semi-permanent minority party status. But leaving partisanship aside, two aspects of this election already stand out as particularly troubling.

First, President Bush received approximately 3.5 million more votes than John Kerry. He also won a majority of all votes cast (the first time a presidential candidate had done so since 1988). Yet his election victory hinged entirely on his approximately 130,000 -- and still diminishing -- vote advantage in Ohio.

Second, although in theory, all 435 House seats were up for grabs, in reality, only a handful of these races were truly competitive. In all but a handful of these races, either the Democrat or the Republican was guaranteed election after winning the party primary.

Both of these observations ought to worry those on both sides of the political spectrum. Are we truly a democracy when a candidate can prevail by millions in the popular vote, yet lose the election? Are we truly a democracy if we troop to the polls, only to validate a choice already made long ago in a primary?

Significant reform in our electoral system is needed, to address both these points.

Why The Electoral College Must Go

To start with point one, isn't it about time we all agreed that the Electoral College has to go?

Let's look at the pros and cons.

Thanks to the Electoral College, for all practical purposes, the presidential campaign did not even exist for voters living outside the 15 or so potential swing states. Neither candidate had the least incentive to speak to the people of California or New York, or Alabama or Texas. The Electoral College results in those states were foreordained - and, thus, the voters in those states had no influence on, and were effectively disenfranchised from, the presidential election.

I think John Kerry looked damn good in those hunting fatigues, and I was amused by President Bush wearing a cheese-head. But surely presidential elections should be truly national in scope -- rather than devolving into a contest over which candidate can pander most effectively to the swing state voters. The interests of Cuban-Americans in Florida are important, no doubt, but a Presidential election should not turn on them.

Worse still, given the country's current political demographics, the Electoral College risks the possibility of repeatedly electing Presidents who have lost the popular vote. Of course, that happened in 2000, when President Bush won the Electoral College (kinda, sorta, with that great assist from the Supreme Court), despite losing the popular vote by 500,000 votes.

This year was a pretty near miss. Bush could easily have lost the Electoral College despite winning the popular vote by 3 percentage points. That could have happened if things had gone only a little bit differently in Ohio. It could also have happened if Kerry had gotten, collectively, about 60,000 more votes in Iowa, New Mexico, and Nevada.

This anti-democratic potential seems likely to haunt the next several elections, if this year's pattern continues, with Republicans winning the red states by large margins, while Democrats just squeak by in many of the blue states. And it would only take a small divergence from this year's patterns to put a Democrat back in Al Gore's position - of a popular vote winner who's an election loser nonetheless. Plainly, this issue ought to be a worry to both parties.

As many commentators have noted, the original rationale for the Electoral College - that it would provide an anti-democratic check on the voting masses - has been rendered obsolete by two centuries of political development. Now, the College performs no real function except to weight presidential elections in favor of voters in the small states. (If someone has a persuasive modern day argument for why a presidential vote in Alaska should carry more weight than one in Georgia, I have not heard it.)

As one recent study of the subject reveals, an electoral vote in Wyoming corresponds to 167,081 actual people's votes, while an electoral vote in California corresponds to 645,172 actual people's votes. This is an absurd skewing in favor of small state voters, who already enjoy a hard-to-justify-in-the-modern-world voting advantage in the U.S. Senate. There, the 26 smallest states hold a majority of votes, despite containing a mere 16% of the nation's population. There's no need to compound this basic unfairness by giving the small states even more sway, through the Electoral College system.

In short, the first and foremost lesson of this election is that we need constitutional reform to bring our democracy in line with a sensible guiding principle: Every vote should be of equal weight. It's high time for a bipartisan effort to abolish the electoral college, and replace it with a simply, consummately democratic, national direct popular vote.

How Gerrymandering Exacerbates Divisions In An Already Polarized Nation

This Electoral College problem, moreover, serious as it is, pales in comparison to the problem of political gerrymandering. Yet solving the problem of gerrymandering wouldn't take a constitutional amendment: An alert, vigilant Supreme Court is all that is needed.

Every ten years, after the national census, elected state officials redraw their voting districts. And every ten years, two things happen. First, the dominant political party in each state tries to rejigger the district map to increase its share of "safe" districts. How un-American: Decide the election in advance, not by the vote on the day of the election.

And incumbents redraw their districts to their ensure re-election - excluding the very voters who disagree with them. How un-American: Exile those who disagree with you.

This process smothers real electoral choice in its crib. In the vast majority of Congressional elections, the final result has been rigged by a bunch of computer jockeys who crunched the demographic numbers of party affiliation and voting history, in an effort to make sure that only one party's candidate has a realistic chance of winning.

In addition to pre-selecting the election winner, this process also exacerbates the nation's political divisions. Because electoral districts are drawn in a way to sharply favor either the Democrat or the Republican, party activists are free to select extremist candidates in the primary without fear of losing the general election.

As a result, fewer and fewer moderates get elected to Congress. And with this dearth of moderate voices, the partisan wrangling in Washington grows ever more bitter and vengeful.

As I discussed in a previous column, last year in Vieth v. Jubelirer, the Supreme Court had the opportunity to set limits on political gerrymandering in a case arising from Pennsylvania. There, state Republicans had helped themselves to two extra safe House seats by drawing electoral districts in a crazy quilt fashion.

Unfortunately, by a 5-4 vote, the Justices refused to declare even such blatant political gerrymandering unconstitutional. That was a mistake: The truth is that, as a practical matter, this kind of gerrymandering shifts voting power away from individuals, and into the hands of the clever political operatives who redraw the districting maps. The Court missed an ideal opportunity for the least democratic branch to play a salutary role in enhancing democracy by revitalizing the electoral process.

Justice Anthony Kennedy provided the crucial fifth vote for the majority. But he also wrote separately -- holding out a ray of hope that the Court would someday revisit the issue. Justice Kennedy suggested that for the Court to change its mind, and intervene more often and more firmly, what is needed is a set of principles for identifying how much partisanship is too much, when it comes to redistricting. Without such principles, he feared that the Court's intervention, itself, would be unprincipled.

If there is one imperative question for the legal academy it ought to be this: What should those principles be? This is one case in which a smart law professor could actually rescue our democracy.

Americans are wont to gripe, with fair basis, about the quality of their government. This election points to a significant reason why. The fault, in no small part, lies not in the stars, but in our system.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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