My mother’s cousin Henrietta (not her real name), up until that point a solid Democrat, was approaching her Chicago polling place in 1980 when she was greeted by her Democratic precinct worker. “Sorry, George,” she said, “I can’t bring myself to vote for Jimmy Carter again.” “That is all right, Henrietta,” George said without a pause. “We don’t care how you vote on the national ticket.”
Lost to history is whether George was expressing his own or the Chicago Democratic machine’s disaffection from President Carter, whom native son Ronald Reagan would beat in Illinois by almost 8%, or whether George was simply professional enough a political hack to pick his persuasion battles. But to understand why the US Constitution leaves the question of redistricting to the states, George’s “we don’t care” offers a helpful signpost both to what our Founders anticipated and to what we have now.
The 1787 Constitution is a compromise aimed at producing a united nation and national interest out of diverse states and state interests. To achieve that compromise, state control not just of state affairs but also of federal electoral representation was partly entrenched. We all recall the notorious “3/5ths” clause that, in addition to House and Electoral College representation to “the whole Number of free Persons,” also granted representation in each state to “three fifths of all other Persons,” that is to say, to slaves held under state law—of course, the power of this representation, like the power of the representation of noncitizen immigrants under the Blue State understanding of present law, was vested in those voters qualified by each state’s law among the “free Persons.”
But the entrenchment of local control of federal representation goes beyond the 3/5ths clause. Senators, elected on a statewide basis, were chosen by state legislatures. Presidential electors were (and are, as the careful student was reminded in 2000 by the Supreme Court in Bush v. Gore) chosen “in such Manner as the Legislature thereof may direct,” and while Congress was given ultimate control over the “Regulations” for electing Senators and Representatives, it was in the original constitution given no control over redistricting. In the 1787 Constitution, the federal government had no mandate to ensure that states divide House seats by single-member districts rather than permit multimember districts (the norm in Britain at the time of the Constitution’s ratification) or even elect all House members in a single statewide election.
Selfishness and partisan chicanery, along with better motives, have helped determine state and federal legislative district lines at least since the original “Gerrymander” of Massachusetts Senate districts in 1812, signed into law by then-Governor Elbridge Gerry. Only in 1967 did Congress pass the Uniform Congressional District Act, requiring that all states with more than one House member elect those members through single-member districts. Where did Congress get that power? From the Warren Court’s far-reaching interpretation of the 14th Amendment’s guarantee of equal protection of the laws in Baker v. Carr (1962), Wesbery v. Sanders (1964), and Baker v. Sims (1964). The Warren Court claimed, in violation of almost two centuries of practice and political compromises, that “equal protection of the law” meant not just equal protection of such laws as were made, but equal representation in the making of the laws. This judicial concern for equal weighting of voters in legislative representation is in obvious tension with the same era’s concern that the “visible minority” of Black descendants of persons held in slavery in the United States have visible representation in state and federal legislatures.
The Founders’ Constitution of 1787 was built around two “don’t care” assumptions that in our era of national parties competing with nationally mobilized resources on national issues are no longer good enough for government work—and may never have been. The first assumption was that the people of Massachusetts did not feel a sufficient stake in the representational arrangements of South Carolina to try to regulate them down to the drawing of district lines. The second and related assumption was that state elections, even for federal office, would be decided on a state basis and not by national party ideologies amplified by nationwide fundraising.
Those who think that the 1967 Uniform Congressional District Act was good policy, notwithstanding its dubious constitutional foundations, might see no great difficulty in the extension of federal control to include redistricting. But who is to handle the redistricting? Congress, with its current members’ obvious interest in partisan power and “incumbent protection”? Federal judges, each appointed by a partisan president and confirmed by a partisan-controlled Senate? A new National Redistricting Agency? And will that agency be controlled by executive appointees, chosen to act in the president’s and the president’s party’s interest? Or will that agency be controlled by “nonpolitical” or “nonpartisan” staff, which in practice means, as at the soon-to-be-defunded and (in my partisan circles) unlamented National Public Radio, by enthusiastic partisans of the Democratic Party with whom our alleged “civil servants” overwhelmingly identify?
No matter what the institutionalization of redistricting, we have better local government and less heated federal politics if we could be more like George, at least capable of pretending to care more about issues the more local they are. Fair redistricting requires equitable concern for community and minority representation, which requires, in practice, some deference to current community and minority leadership. Yet fair redistricting also requires giving voters the sense that they choose whom to elect and are not just chosen by current incumbents to aid in prolonging their incumbency. If we are not going to adopt the wisdom of George to come up with a better mode of dividing the redistricting baby, we are going to need the wisdom of Solomon. But even before God granted the king wisdom, Solomon was at least smart enough to pray for it.