Law & the Courts

The Constitution’s Guarantee Clause to the Rescue?

Voters at a polling place in Philadelphia, Pa., November 8, 2016. (Charles Mostoller/Reuters)
The Pennsylvania supreme court is imposing proportional representation by judicial fiat. It’s time to revive the Constitution’s long-neglected guarantee of republican government.

The Democratic majority on Pennsylvania’s supreme court has issued a massive revision of the Commonwealth’s congressional-district map. Every district has been extensively redrawn. Some of them have even been renumbered. And the Pennsylvania supreme court is not the only court to override the U.S. Constitution’s explicit provision that Congress and state legislatures shall determine the “Times, Places and Manner of holding Elections for Senators and Representatives.” Earlier, federal judges rejected the Wisconsin state legislature’s electoral districts in Gil v. Whitford, a case now on appeal before the U.S. Supreme Court.

If the judges in the Wisconsin and Pennsylvania cases prevail, we face the very real prospect that henceforth all redistricting will be controlled by the courts, and that litigation rather than democratic deliberation will set all future electoral-district lines.

In the face of this prospective massive expansion of judicial power, the time may have come to revive the U.S. Constitution’s provision that the “United States shall guarantee to every State in this Union a Republican Form of Government” (Article IV, Section 4). This is sometimes referred to as the “Guarantee Clause.” It was originally intended to prevent the establishment of mini-monarchies in the states. However, in our time, the greatest abuses of the people’s right to rule themselves, the essence of small-r “republican government,” now come from the black-robed aristocracy of the courts.

With President Trump’s encouragement, GOP leaders have launched lawsuits challenging the court-imposed redistricting. However, these lawsuits rely on the Elections Clause, which has thus far failed to prevail, as much as the constitutionally minded might believe that it should. Can the Guarantee Clause bolster the defense of rule by elected legislatures rather than the courts? In other words, can we save the people’s right to rule from the judiciary’s ascension to supreme power over our American federation of republics?

Is It Really about Gerrymandering?

The Democrats on the Pennsylvania supreme court base their usurpation of the legislature’s elections function on a vague phrase in Pennsylvania’s constitution requiring that elections be “fair and equal.” Although partisan gerrymandering, however unseemly, has been around since the United States’ first elections, the Pennsylvania supreme court has suddenly now decided that it violates this old language. This is part of a multi-state drive by Democrats to reverse the outcome of the 2010 elections, which put Republicans in charge of more redistricting than usual. While Democrat-controlled legislatures in states such as Illinois and Massachusetts continued to merrily gerrymander as egregiously as ever, the increase in Republican opportunities to gerrymander gave rise to a Democratic counter-attack in Republican-dominated states.

The underlying rationale of these cases is that the Republican (but not Democratic) redistricting after 2010 did not produce the same result as would have been produced if the seats were distributed in the same proportion as the state-wide party vote. For example, in the 2016 elections for Pennsylvania’s 18 seats in the U.S. House of Representatives, Democrats received 46 percent of the statewide vote, but won only 28 percent of the seats.

This is the same argument advanced for basing an electoral system on proportional representation. Under the most common form of that system, widely used in continental Europe and elsewhere, one generally votes for a political party rather than a particular candidate. Legislative seats are then distributed to each party in proportion its share of the vote, rather than the share of each individual candidate. Who actually then sits in the legislature is determined by the party leadership. If a party gets 46 percent of the vote, it should get around 46 percent of the seats. This often leads to minority or coalition governments, or to paralysis such as we have recently seen in Germany and may soon see in Italy. The basic complaint in both the Wisconsin and Pennsylvania cases is that the proportion of seats the Democrats got was lower than the proportion of votes they received state-wide.

In both cases Democratic experts have presented elaborate formulae that supposedly measure the political “inefficiency” of districts drawn by the elected legislatures. However, the underlying premise of these theories is that the results should approximate the political parties’ statewide share of the vote. Although dressed up in pseudo-scientific fuzzy math, legal abstractions, and poli-sci theorizing, in the end the Democratic argument is the same as that for an electoral system of proportional representation.

But the United States, Great Britain, and most other English-speaking countries have always used the “first-past-the-post” system, in which the recipient of the most votes in each electoral district wins that district’s seat. This system tends to more often produce majority governments, and gives voters the power to choose a specific person as their representative. Local preferences prevail rather than being swept into a larger state or national voting pool.

The two approaches to carrying out democratic government represent sharply contrasting and contradictory values. Let’s illustrate this by considering a hypothetical jurisdiction with 500,000 voters divided equally into five electoral districts of 100,000 voters each. In an election, Party A wins one district with 80 percent of the vote, while Party B wins the other four districts with 51 percent of the vote in each. In a first-past-the-post system, Party B wins four out of five seats even though Party A won 55 percent of all votes cast across the five districts. In a proportional system, Party A wins three out of five seats. Proportional representation may produce a “fairer” result from a perspective of the entire jurisdiction, but it also puts a party in power which was rejected by majorities of voters in a majority of districts. First-past-the-post respects and reflects these local preferences, and resists a situation where the government is effectively controlled by a single electoral district in which one party is dominant.

Much can be said for the merits and defects of both the proportional-representation and first-past-the-post systems, but none of it matters for our present purposes. What does matter is that these are distinctly different, indeed contradictory, voting systems, and their differences are massive. Which system one follows determines who governs, which is the central question regardless of what form your government takes.

The Democratic Drive for Proportional Representation

Democrats are pushing proportional representation not, as they claim, because of the evils of partisan gerrymandering, but because of simple facts of geography. As none other than Barack Obama has observed, “Democratic voters are clustered in urban areas and on the coasts.” This concentration could be seen in the 2016 congressional elections, where Republicans won 55 percent of the seats with 49 percent of the nationwide vote compared to the Democrats’ 48 percent. This geographic concentration of Democrats can also be seen in margins of victory, with Democratic congressional victors averaging a margin of 41.5 percentage points compared to only 33.5 points for Republican winners. The more broadly distributed Republican voters prevail in more districts than the more highly concentrated Democrat voters. Applying the standard of proportional representation eliminates the Democrats’ disadvantage, which comes from the geographical concentration of their supporters.

It may be argued that the Pennsylvania supreme court’s decision did not impose full-fledged proportional representation, because the recipient of the most votes will still win in the redrawn districts. But when the judiciary rules that a district map will be subject to drastic and massive judicial intervention if it does not satisfy a criterion based on proportional partisan equality, that court has effectively imposed proportional representation.

The Essence of a Republic Is Who Decides

This is where the Guarantee Clause comes in. In a republic, elections — the most fundamental of democratic procedures — should be decided by democratic means, not imposed by judges (even if they, too, are elected, as in Pennsylvania). The Pennsylvania supreme court has judicially amended the state constitution to require districting that will provide results comparable to European-style proportional representation, not the Anglo-American first-past-the-post system. But in a republic, the choice between these two contradictory systems, or some hybrid of them, should be made by the people through republican means, which is to say through a vote.

More is at stake here than whether Democrats or Republicans pick up a couple of seats in the 2018 elections. For a state judiciary, rather than the democratically elected bodies designated by the U.S. Constitution, to make this decision violates the essence of republican government. And the U.S. Constitution requires that the federal government guarantee every state’s citizens enjoy a republican form of government.

In a republic, elections — the most fundamental of democratic procedures — should be decided by democratic means, not imposed by judges.

Some may respond that this argument can be used against any state court’s exercise of judicial review. But this case is distinctive. First, it goes to the heart of the functioning of small-r republican government. The question of how the people pick their representatives is at the heart of any representative democracy. That is why the Constitution devotes a substantial part of its first two articles to laying out the specific procedures for electing Congress and the President in a first-past-the-post electoral system. Second, in its Elections Clause, the Constitution clearly vests the authority to make that decision in elected legislatures. These factors distinguish this situation from others where state supreme courts have acted aggressively. Moreover, a federal court decision using the Guarantee Clause to block the Pennsylvania supreme court’s extreme, partisan power grab could set at least one outer bound on the ever-expanding power of the judiciary, an expansion which is occurring at both the state and federal levels.

Admittedly, the Guarantee Clause has never been invoked before in such circumstances. In an 1849 case, Luther v. Borden, the U.S. Supreme Court stated in dicta that the remedy under the Guarantee Clause had to come from Congress rather than the federal courts. But that 1849 case came before the judiciary began its long march to supremacy over American government. Today it regularly uses vague constitutional language to effectively amend state and federal constitutions without any democratic approval or check. Since it is the state judiciary that threatens the small-r republican government of Pennsylvania, it would be appropriate for the federal judiciary to revise that 1849 standard, and step in and enjoin the Pennsylvania supreme court’s violation of Pennsylvanians’ right to republican self-government. To do otherwise would render meaningless the Constitution’s guarantee that Pennsylvania shall remain a democratic republic.

What to Do about Partisan Gerrymandering

You may ask then: What is to be done about partisan gerrymandering, the unseemly practice where the politicians choose the voters rather than the other way around? Many states have wrestled with this issue, and come up with democratically enacted solutions, such as redistricting by nonpartisan or bipartisan commissions. I studied this issue extensively in writing my book Timely Renewed: Amendments to Restore the American Constitution, and concluded that the only sure way of ending gerrymandering was to enact, democratically, a mathematical standard based on a sum-of-the-perimeters calculation. (The total length of the boundaries of all districts have to fall below some maximum standard.)

Those who support the Pennsylvania supreme court’s decision claim to be seeking to make democratic government more effective. What they are actually doing is using unlawful judicial amendment to effectively replace our Anglo-American first-past-the-post electoral system with proportional representation. In a republic, such a fundamental choice should be made openly and honestly through the electoral process, not through the subterfuge of strained and aggressive activism by a few judges. The case against gerrymandering can be made democratically, even in gerrymandered districts. One need only show voters the grotesqueries produced by gerrymandered electoral-district maps. Democrats, or at least all democrats, should trust the people, and not resort to the profoundly anti-democratic and anti-republican means of judicial fiat.

James W. Lucas — James W. Lucas is an attorney in New York City and the author of Timely Renewed: Amendments to Restore the American Constitution, which includes a draft anti-gerrymandering amendment.

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