Most commentators have described the Supreme Court’s decision last week in Gill v. Whitford as a punt. In a unanimous decision delivered by Chief Justice John Roberts, the Court ruled that the Democratic plaintiffs opposing the GOP-controlled Wisconsin state legislature’s 2011 reapportionment could not proceed because the plaintiffs lacked standing: They could not show direct harm to themselves, as they lived in districts that elected Democrats despite the GOP redistricting, which allegedly favored Republicans. Rather than personal harm, the plaintiffs had based their complaint on the statewide vote, in which Republicans in 2016 were elected to 64 of the 99 seats in the state assembly after receiving 53 percent of the statewide vote for the assembly. (On Monday the Court declined to hear a similar challenge to partisan gerrymandering in North Carolina.)
However, the decision is potentially more important than most commentary suggests. This is because the justices’ opinions did touch on the heart of the matter, even though they may not have realized it. Chief Justice Roberts wrote that the plaintiffs would have to prove their harm on a district-by-district basis, but Justice Elena Kagan’s concurring opinion, joined by Justices Ginsburg, Sotomayor, and Breyer, laid out arguments that the plaintiffs could use on remand to continue to argue that the disparity between the aggregate statewide vote and the results in the 99 assembly-district votes made the districting unconstitutional.
It is precisely this issue of local versus aggregate vote-counting that is the real core question, not whether some level of partisan self-interest in drawing election districts goes too far by some arbitrarily selected mathematical formula. For despite all its dressing in what the chief justice in oral argument called “sociological gobbledygook,” the true goal of the Democratic plaintiffs in these and similar cases is the judicial transformation of the American electoral system from our current majority/plurality rules to effectively become one of proportional representation. That the results of the separate local district elections may be disproportionate to the aggregate statewide partisan vote totals is not an aberration. It is a fundamental, inseparable feature of our voting system, and thus cannot serve as the basis for any legal complaint against it.
The central question in any representative democracy is how one allocates seats in the legislature. With many variations, there are two principal approaches. In countries (such as the United States) that inherited their legislative systems from Britain, the winner of the most votes in each district becomes that district’s legislative representative. This system is often called “first past the post.” The alternative system is proportional representation, used in many continental European countries and elsewhere. In the pure version of this system, one does not vote for a candidate; instead, one votes for a political party. The nationwide vote is then aggregated, and the legislative seats are allocated proportionately to each party’s share of the nationwide vote (with some minimum share, usually a few percent, needed to qualify for a seat).
The essential difference between the two systems is that first-past-the-post privileges the local, whereas proportional representation privileges the aggregate.
Both systems are used in countries that we consider legitimately democratic, and each has its pros and cons, which are beyond our scope here. The critical point is that the two systems are very distinct and generally incompatible. To illustrate this, imagine an election in which Party A carries all of the electoral districts over Party B by a narrow margin, say 51 to 49 percent. In first-past-the-post, Party A would receive all of the seats, while under proportional representation, Party B would receive about 49 percent of the seats. To some it might seem fair that the minority party receives seats. However, it would also mean that a party that was rejected by a majority of the voters in every district would nonetheless be granted substantial political power. This simple scenario is further complicated where there are multiple political parties, a system that is encouraged by proportional representation. This often leads to difficult coalition governments, as seen recently in Germany and Italy.
The essential difference between the two systems is that first-past-the-post privileges the local, whereas proportional representation privileges the aggregate. This is the critical distinction between Chief Justice Roberts’s and Justice Kagan’s Gill opinions. Whether you prioritize the local, like Roberts, or the aggregate, like Kagan, makes all the difference.
Wisconsin and the Gill case provide a real-life illustration of the fundamental differences between the two systems. Wisconsin Democrats are concentrated in the state’s two largest urban areas, Milwaukee and Madison (which is the state capital and home of the central campus of the state university). This concentration was vividly shown in the last presidential election. Although Donald Trump narrowly carried the state and a large majority of its counties, Hillary Clinton carried Milwaukee County with 66.4 percent of the vote and Dane County (where Madison is located) with 71.4 percent. The handful of other counties Clinton carried were only by narrow margins.
Proportional representation would solve this problem for the Democrats. They could live in their urban bubbles all they want without risking any loss of political power to more politically diverse rural and suburban voters.
Given these realities, even if the Wisconsin districts were drawn by the most impartial robot, under first-past-the-post rules, the Republicans, being more widely spread out, are in general going to win more seats than the more geographically concentrated Democrats. This can be seen in the 2010 election. In that election, which used electoral districts drawn in 2001 after the 2000 census by a federal judge appointed by Bill Clinton, Republicans still won 60 seats in the 99-seat assembly. In fact, in the last two decades (including when districts were drawn by federal judges in 1991 and 2001), Republicans have controlled the assembly for all but one term.
Proportional representation would solve this problem for the Democrats. They could live in their urban bubbles all they wanted without risking any loss of political power to more politically diverse rural and suburban voters. The problem for Democrats is how to impose such a massive shift away from the Anglo-American election system, which has been used throughout the Republic’s history. This is where the chief justice’s “sociological gobbledygook” comes in. Behind all the formulae, analyses, and calculations presented by plaintiffs, the fundamental complaint is that the election results did not correspond to what the results would be under proportional representation — that the results were disproportionate to the aggregate statewide vote.
As one commentator frankly notes, if “we believe proportional representation is a priority for our government, then gerrymandering should be a priority problem.” What the parties to the litigation do not address is that our first-past-the-post electoral system is incompatible with and inimical to proportional representation. None of the formulas proposed by the Democratic plaintiffs take into account geographic partisan concentration. Nor is this limited to Wisconsin; it is part of a multi-state drive. For example, in February the Pennsylvania supreme court’s Democratic majority did not punt, but drastically redrew the election districts based on the same rationale, that the results from the state’s congressional elections did not correspond to the statewide proportional vote.
Parties may respond that they are not seeking to impose full-fledged proportional representation; the recipient of the most votes will still win in the redrawn districts. However, when a state legislature is confronted by a judicial decree that election districts must be drawn so as to closely approximate the statewide aggregate proportional results, that court has effectively imposed proportional representation in all but the details. Further, to argue after more than two centuries (and 150 years since the 14th Amendment) that the Constitution mandates proportional representation is to argue that not just Wisconsin’s, but all elections in the United States should use proportional representation.
This shows the magnitude of the change the Democratic plaintiffs are asking the judiciary to impose on the Republic. There may be good political arguments for switching to proportional representation, but such a massive and fundamental decision should be made by democratic process, not judicial invention. Indeed, any court that tried to do so would be acting unconstitutionally. Not only does the Constitution explicitly provide that Congress and state legislatures shall determine the “Times, Places and Manner of holding Elections for Senators and Representatives” (Article I, Section 4); it requires that the “United States shall guarantee to every State in this Union a Republican Form of Government” (Article IV, Section 4). Plaintiffs in these cases argue that they are trying to promote democracy. However, these cases represent the exact opposite. The essence of a republic is that the people decide who shall govern. For the most anti-democratic arm of the government, the judiciary, to usurp such a fundamental decision would be a complete betrayal of our democratic republican form of government.