The Mathematics of Constitutional Failure

The Mathematics of Constitutional Failure

By Carrie Leonetti [*]

The federal courts were intended as anti-democratic structures.[1] Their interpretations of the federal constitution were supposed to be a counterweight to the excesses of the other two “democratic” branches.[2] The problem with this system is that the other two branches of government are not democratic. No one likes math less than I do, but the anti-democratic nature of our government only becomes apparent if one runs the numbers.

Begin with Congress. The Senate was designed to be less than democratic, as a concession to regional, states’-rights interests.[3] Its seats are decided not in proportion to electoral votes, but rather with an equal number of seats for each state, regardless of population.[4] California, the most populous state, has almost 39 million people. Wyoming, the least populous, has fewer than 600,000. Both get two Senators. So, in the Senate, the vote of each person in Wyoming counts for roughly sixty-seven times as much as the vote of each person in California.

This has ideological consequences. The high-population states, whose votes are diluted, tend to be “liberal” (California, New York, Illinois). The rural states, whose votes are supercharged, tend to be “conservative” (Wyoming, North Dakota, Alaska). So, the Senate ends up being not just unrepresentative geographically, but ideologically, as well.

The House of Representatives, by contrast, was supposed to have population-based representation.[5] But, due to gerrymandering, it no longer does. The total popular vote in the November election was divided almost evenly between Republicans and Democrats, with Republicans receiving about 56 million votes and Democrats receiving about 53 million.[6] The Republicans, however, ended up shellacking the Democrats in the House, with 239 seats compared to Democrats’ 193.[7] The contrast was even starker in 2012, when Democrats garnered several hundred thousand more total votes than Republicans in Congressional elections, but ended up as the minority party (201 seats compared to Republicans’ 234).[8] This is why media coverage of national elections focuses on whether Democrats can regain control of the Senate but not the House: because Republicans have figured out a way to control the House even when they get fewer votes than Democrats.

How? By controlling a super-majority of state legislatures, which are largely responsible for drawing federal Congressional districts. Prior to last month’s elections, Republicans had a controlling majority in thirty-two state legislatures, while Democrats only controlled thirteen. These state legislatures draw their federal Congressional districts in ways that “crack” Democratic-majority districts into different Republican-majority districts and “pack” inevitably Democratic-majority districts so that they are as Democratic as possible. Here is a simple snapshot of how this works. Imagine a metropolitan area with one million people in its core (which would amount to approximately 1.3 House seats, on average) with another million or so people ringing it, like a donut, in suburbs (another 1.3 House seats). All told, this metropolitan area would likely elect roughly three of its state’s representatives to Congress. Imagine that the inner circle, “the city,” is ethnically diverse and votes about 70%-30% Democrat. Imagine that the outer circle, “the suburbs,” is majority white and votes 55%-45% Republican. This demographic description probably applies to a lot of urban areas in the United States. If the entire metropolitan area voted collectively for three Representatives, almost 2/3 of its residents would vote Democrat, and a little more than 1/3 would vote Republican, so one would expect the metropolitan region to elect two Democrats and one Republican for this mega-district. One can imagine a similar scenario across an entire state with multiple large, mid-size, and small cities surrounded by sparsely populated rural areas. Statewide voting would not be perfectly representative because the total number of a state’s legislative seats might not be perfectly divisible along party lines. In the hypothetical metropolis, Republicans would be slightly “under-represented” as a function of total voting population and vice versa for Democrats, but it would be a much closer rep-to-vote ratio than one currently sees in Congress.[9]

Federal law, however, requires that Representatives be elected in single-member districts, rather than in statewide, multi-member districts,[10] which is the traditional method in many other countries and currently used to draw a few states’ legislative districts. So, this metropolitan area (or a whole state) cannot come together and elect Representatives in a way that is roughly proportionate to the party affiliation of its total population. Instead, the area has to be divided in three.  If one divided it like a pizza, with three rectangular districts coming to a point in downtown, it would elect three Democrats, assuming that the suburbs at the three corners of the metropolitan area and the neighborhoods within the city limits were roughly similar to one another across partisan lines (i.e., that the Northeast suburbs and the Southwest suburbs have roughly equal portions of Democrats and Republicans and the same for the East End of downtown and the West End of downtown). This is probably not a completely valid assumption (e.g., the North and South sides of L.A. or Chicago are quite demographically different from one another). But the variation between “city” and “suburb” is still likely greater than the variation among city neighborhoods or individual suburbs, such that one would still expect each of the three pie-piece-shaped districts to vote approximately 2/3 Democrat and 1/3 Republican. This would result in three Democratic Representatives, diluting the Republican suburban votes so that those voters would have no say in their representation in Congress (and presumably no Representative responsive to their concerns).

Now imagine the opposite. Imagine drawing the three metropolitan districts with one district in the inner city and two districts (each shaped like half a donut) of suburbs and outer city neighborhoods. Now, one would expect to have one Democratic Representative for “downtown” and two Republicans for the outer-city and suburban areas, diluting Democratic votes in the area by “packing” them into one downtown district and “cracking” them into two minority groups in the outer districts. The latter is how many Republican-controlled state legislatures draw their federal districts, and it is how a party that often has a minority of overall votes nonetheless has established an enduring majority in the “popular” house of Congress. While the country is essentially “tied” Democrat/Republican, Congress is not, because strategic Republican redistricting at the state level has silenced much of the half of the country that disagrees with it. This practice is so widespread that academics have named it. They call it “partisan symmetry”[11] or the “efficiency gap” – the gap between the total number of votes and the smaller number of votes that actually “count” one way or another.[12]

When one looks at “representative” government on a state-by-state basis, the math is alarming. There are large swaths of the country where Republicans barely outnumber Democrats (or even are in the minority statewide), but have much larger majorities in their state legislatures and, therefore, Congressional delegations.

According to Gallup, Oklahoma is 49% Republican and 36% Democrat,[13] yet its entire Congressional delegation (two Senators and five representatives) is Republican.[14] Delaware County, which contains the Oklahoma half of Kansas City, is majority Democrat, but it only has 450,000 people, so it is not big enough for its own district. Osage County, which contains Tulsa, is also majority Democrat, but Tulsa is even smaller, with a population of approximately 400,000. Tulsa and Kansas City are both in the Northeast of the State. It would be possible to combine them and their surrounding areas to form two majority-Democrat districts.  Instead, the Oklahoma legislature combined Kansas City with a huge swath of Eastern Oklahoma, which added just enough population to make the entire district (Oklahoma’s Second) majority Republican, and it created a stovepipe-looking swath of territory up to the Kansas border that dilutes the votes of Tulsa residents creating a second majority Republican district (Oklahoma’s First). The Oklahoma legislature, despite being in a fairly closely divided state, comprises 110 Republicans and 39 Democrats.[15]

Arkansas is more closely divided, with 45% Republicans and 39% Democrats,[16] but its Congressional delegation is also entirely Republican (two Senators and four representatives).[17] Arkansas’s largest city is Little Rock, and it votes predictably Democratic. But, with approximately 250,000 in its metro area, it is much too small to have its own Representative. Pine Bluff, Arkansas, immediately Southeast of Little Rock, has another 50,000 solidly Democratic voters. Head further Southeast, along the Mississippi river, and you hit another solidly Democratic part of the State where most of Arkansas’s black residents reside. Each of these areas is in the Southeastern quartile of the state, but the Arkansas legislature has managed to crack them into three different majority-Republican districts (Arkansas’s First, Second, and Fourth, respectively). The Arkansas legislature has 66 Republicans and 33 Democrats.[18]

West Virginia is also fairly evenly divided, with 46% Republicans and 40% Democrats.[19] Its Senate delegation reflects this divide, with one Democratic and one Republican Senator, but its House delegation of three is 100% Republican.[20] The counties that contain the state’s three largest cities, by population, are Kanawha (Charleston), Cabell (Huntington), and Monangalia (Morgantown).[21] All three counties vote heavily Democratic.[22] Morgantown is in far Northwest Virginia, bordering Maryland, but Charleston and Huntington are both in Southwest West Virginia, not very far apart. The state’s legislative districts do not appear gerrymandered (in shape), since they cut in horizontal lines across the state, but these lines neatly cleave the three Democratic-leaning metropolitan areas into three separate districts, whose votes get diluted by the Republican-leaning rural counties around them. The West Virginia legislature is 2/3 Republican.[23]

Even Alabama, one of the reddest states, has a surprising share of Democratic voters in comparison to its almost 90% Republican Congressional delegation.  According to Gallup, Alabama is 51% Republican and 34% Democratic,[24] but it has six Republican Representatives and only one Democrat.[25] One big reason is Alabama’s Second District, with its barely attached hammerhead top and beak-shaped Western appendage. The Western beak manages to sweep up just enough conservative, white voters to dilute the remaining majority-minority district around the hammerhead of Montgomery and the heavily black Southeastern part of the state, leaving a just barely Republican-leaning district. The only majority Democratic district in the state is the packed Seventh District, in the Western “black belt,” with a finger that reaches far Northwest to nab Alabama’s liberal bastion, college-town Tuscaloosa, and downtown Birmingham for good measure. The Alabama legislature is more than 70% Republican.[26]

One sees similar numbers and districting patterns across many states: South Carolina (population 35% Democratic but only one Democratic Representative out of seven, with a state legislature in which Republicans hold 65% of its seats), Louisiana (41% Democratic versus 43% Republican, but only one Democratic Representative out of six, thanks in part to the notoriously packed district that includes both New Orleans and Baton Rouge drawn by its state legislature, in which Republicans hold 57% of the seats), Iowa (40% Democratic versus 43% Republican, but only one Democratic Representative out of four, with a state legislature that is 57% Republican), Mississippi (39% Democratic versus 44% Republican, but only one Democratic Representative out of four, with a state legislature that is 60% Republican), Missouri (38% Democratic versus 46% Republican, with a Senate delegation of one Democrat and one Republican, but only two Democratic Representatives out of a delegation of eight, with a state legislature that is 71% Republican), Indiana (38% Democrat versus 44% Republican with a Senate delegation of one Democrat and one Republican but only two Democratic Representatives out of nine, with a state legislature that is 70% Republican), Tennessee (36% Democratic versus 46% Republican, but only two Democratic Representatives out of nine, with a state legislature that is 75% Republican), and Georgia (39% Democratic versus 44% Republican, but only four of its fourteen Representatives are Democrats, with a state legislature that is 65% Republican).[27]

Even more incredible are states that do not have a Republican majority, but whose Congressional delegations are nonetheless quite scarlet. One of the most egregiously districted states is North Carolina, which most commentators no longer consider a “red” state.[28] Voters are equally divided between Democrats and Republicans (41% each),[29] but North Carolina’s House delegation has ten Republicans and three Democrats.[30] Once again, this is the product of districting by a state legislature 62% of whose seats are occupied by Republicans.[31] The North Carolina legislature – the one that just famously retaliated against its voters for electing a Democratic governor by stripping the post of its power[32] – has managed to pack most black and liberal-white voters into two huge Democratic districts: the Fourth, which captures the “research triangle” of Chapel Hill, Raleigh, and Durham, and the Twelfth, which captures a huge swath of urban Democratic voters in a long squiggly line that packs Charlotte and Greensboro into a single district.

Virginia, with 41% Democrats and 42% Republicans by population,[33] is similarly no longer considered a “red” state.[34] But its House delegation comprises eight Republicans and three Democrats, because its state legislature remains 66% Republican.[35] Ohio, another perennial battleground state, has 42% Democrats and 42% Republicans by population,[36] with an equally divided Senate delegation of one each, but, of its sixteen House seats, only four are occupied by Democrats.[37] This is the result of yet another act of district engineering by its state legislature, which is 65% Republican.[38] Toledo and Cleveland are 120 miles apart, in nearly opposite corners of Ohio with little but lakefront in common. But they are together at the voting booth every two years. Wisconsin, another battleground state, evenly divided between Democrats and Republicans (43% each),[39] has one Democratic and one Republican Senator, but three of its eight Representatives are Democrats, thanks to its state legislature, which is 64% Republican.[40] Michigan is considered a “blue” state.[41] Statewide, it has 43% Democrats and 39% Republicans,[42] but only five of its fourteen Representatives are Democrats, and Republicans hold a majority (56%) in its state legislature.[43]

Perhaps no place exemplifies the power of, and battles over, redistricting like Texas, which, because of its size, also demonstrates the rigged mathematics of partisan politics in the United States. While many think of Texas as very red, it merely seems that way because of the outsize power that Republicans enjoy.  According to Gallup, Texans are 37% Democrat and 43% Republican.[44] Because of its size, Texas has a House delegation of thirty-six Representatives, only eleven of whom (31%) are Democrats.[45] Its state legislature is 66% Republican.[46] Because Texas has a history of discriminatory voting access, it used to require Department of Justice (“DOJ”) “preclearance” for its districting plans.[47] In 2011, the Texas Legislative Council submitted its 2010 plan to DoJ, which refused to approve it because it discriminated against voters of color (who tend to vote heavily Democratic).[48] In 2012, a federal court upheld DoJ’s decision, so Texas appealed to the Supreme Court.[49] Shortly thereafter, in Shelby County. v. Holder,[50] the Court struck down the preclearance formula.[51] So, the heavily Republican legislature (in a not nearly as heavily Republican state) is now free to redistrict without federal interference.

Individually, these numbers may not seem like much, one extra Republican Representative here or there in states that many already consider inevitably “red,” but together they add up to an unassailable minority majority in Congress. To put it in mathematical terms, the Republican party is exploiting our now ironically named republican system of indirect representation to “round up” its share of elected office, in comparison to its statewide shares of voters, by 10 or 20% across a majority of states. If Texans, for example, voted for their Representatives statewide, one would expect roughly 46% to be Democrats and 54% to be Republicans.  That would mean six more seats for Democrats and fewer seats for Republicans from Texas alone. Nationwide, it would mean that the House would pretty much be perpetually evenly divided between Democrats and Republicans (like the country), occasionally swinging in one direction or other by two or three seats, rather than being permanently dominated by Republicans. The result would be that both parties would have to compromise to govern, rather than a majority party always riding roughshod over a futile opposition.

Then there is the presidency. Most Americans are by now quite familiar with the anti-democratic math for this branch. Americans do not elect the President; they elect Electors who elect the President.[52] Electors are not assigned by population. A state gets the same number of electors as its total Congressional delegation (Senate and House), so the anti-democratic nature of Senate representation gets replicated, giving extra weight to states with less population.[53] More importantly, in almost all states, the electoral delegates are winner take all, not proportional.[54] So, if one candidate wins twenty-four states in a landslide, and the other candidate barely wins twenty-six, so that the first candidate wins 60% of the popular vote but 48% of the electors and the second candidate wins 40% of the popular vote but 52% of the electors, the second candidate becomes the President.

As a result, last November, for the second time in less than two decades, the person for whom the majority of Americans voted did not take office on Inauguration Day.[55] The math for 2016 is particularly stark. While Al Gore barely squeaked a victory in the popular vote in 2000 (earning a little more than 500,000 more votes than George W. Bush),[56] Hillary Clinton both won the popular vote and lost the Electoral College by margins which could be considered landslides: garnering almost 3,000,000 more votes than Donald Trump (or almost three percent of votes cast) while losing the Electoral College by almost seven percent.[57]

The math clearly demonstrates that the United States has no “democratic” branches of government. According to Gallup, 32% of Americans currently identify as Democrats while 27% identify as Republicans.[58] Nonetheless, the Republicans soundly control both houses of Congress and the Presidency. In sum, our nation is pretty much evenly divided between Democrats and Republicans, tending to bank, if anything, a bit more Democratic each passing year, but the “democratic” branches do not reflect that reality.[59]

These discrepancies have significant effects on policy, with a majority of Americans wanting Congress to prioritize policies and actions that it does not and refrain from taking many of the actions that it does. For example, according to Gallup, only 19% of Americans want abortion to be illegal under all circumstances, with 29% wanting abortion to be available under all circumstances and 50% wanting it to be legal under some.[60] 55% want stricter gun laws. 51% believe that the federal government has a responsibility to guarantee health care for all, and 58% favor replacing Obamacare with a federally funded health-care system (definitely not the idea behind Republicans’ “repeal and replace” mantra).[61] 59% support free universal preschool and childcare, and 47% support free college tuition (versus 45% opposed).[62] A whopping 63% think that corporations have too much influence in Washington, and a majority of those with an opinion support campaign-finance reform, with 88% in favor of heightened disclosure requirements, 78% in favor of lowering the maximum allowed donation, and 58% in favor of public finance.[63]

How can this America be the one that elected Donald Trump and put Mitch McConnell and Paul Ryan in charge of Congress? Why do Americans continually elect a Congress with an approval rating below twenty percent?[64] Why do a majority of Americans look at their new President and say, “He’s not my President.”?[65] Many attribute these discrepancies to campaign finance and the power of special-interest organizations. Surely these lobbies play a role, but mostly these discrepancies exist because they have no consequence. Because a majority of legislators are elected by a minority of the electorate, it does not have to govern with accountability to the wishes of its constituents, but rather only to those few constituents whose votes have outsized weight, which tends to be rural, conservative, white America (the national “suburbs”). So, if you are one of the majority of Americans that Gallup says feels like Congress is “out of touch,”[66] if you are progressive, urban, coastal, multi-lingual, or brown and you feel like your “representatives” do not represent your community or your country, it is because they do not.

Can anything be done? Certainly: amend the Constitution. We could amend Article I, § 3, which dictates that each state gets two Senators, so that Senators are elected in proportion to population.[67] We could amend Article I, § 4, which dictates that Congressional elections are governed by state law,[68] and then demand that Congress repeal § 2C and require statewide elections. We could repeal Article II, § 1, which establishes the Electoral College,[69] and replace it with a provision requiring direct popular election of the President. We could even change the Twenty-Third Amendment, which conferred only the right to vote for President on (super-majority-Democratic) D.C.,[70] and add Congressional representation. But this is where math, once again, gets in the way of democracy. Under Article V, the Constitution can only be amended by a vote of 2/3 of Congress or 2/3 of state legislatures,[71] both of which are controlled by Republicans, the minority party that governs like a majority.


[*] Associate Professor & Dean’s Distinguished Faculty Fellow, University of Oregon School of Law

[1] See generally Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

[2] See Charles Warren, The Supreme Court In United States History 748–49 (Rev. ed. 1935).

[3] See Charles Warren, The Making of the Constitution 267–312 (1928).

[4] See U.S. Const. art. I, § 3.

[5] See U.S. Const. art. I, § 2.

[6] See Paul Singer, Democrats Won Popular Vote in the Senate, Too, USA Today (Nov. 10, 2016, 6:17 PM), [].

[7] See Patrick Scott, Who Won the US Senate and House of Representatives? Did the Democrats or Republicans Win?, Telegraph (Nov. 10, 2016, 10:51 AM), [].

[8] See Ezra Klein, House Democrats Got More Votes than House Republicans. Yet Boehner Says He’s Got a Mandate?, Wash. Post: Wonkblog (Nov. 9, 2012), [].

[9] See Partisan Composition of State Houses, Ballotpedia, []. For an in-depth explanation of why state legislatures are hyper-Republican, see Philip Bump, How Your State’s Politics Have Shifted over the Years, in 49 Charts, Wash. Post: The Fix (Sept. 13, 2015), [].

[10] See 2 U.S.C. § 2C (2012).

[11] See Anthony J. McGann, et al., Gerrymandering in America 8–9 (2016).

[12] See Kim Soffen, Wisconsin’s Gerrymander Being Struck Down Should Scare Republicans Nationwide, Wash. Post (Nov. 23, 2016), [].

[13] See Jeffrey M. Jones, Red States Outnumber Blue for First Time in Gallup Tracking, Gallup (Feb. 3, 2016), [].

[14] See State & Legislative Partisan Composition (2016 Election), Nat’l Conf. of State Legislatures (Dec. 15, 2016), [] [hereinafter NCSL Composition].

[15] See id.

[16] See Jones, supra, note 13.

[17] See NCSL Composition, supra note 14.

[18] See id.

[19] See Jones, supra note 13.

[20] See NCSL Composition, supra note 14.

[21] See Charleston Only West Virginia City with 50,000 Population, Charleston Gazette-Mail (May 21, 2015), [].

[22] See Voter Registration, W. Va. Sec’y of State (Feb. 20, 2017), [].

[23] See id.

[24] See Jones, supra note 13.

[25] See NCSL Composition, supra note 14.

[26] See id.

[27] See Jones, supra note 13; NCSL Composition, supra note 14.

[28] See, e.g., Gary Legum, North Carolina’s in Play: The Red State Just Might Be up for Grabs in November, Salon (July 1, 2016, 10:00 AM), [].

[29] See Jones, supra note 13.

[30] See NCSL Composition, supra note 14.

[31] See id.

[32] See Trip Gabriel, North Carolina G.O.P. Moves to Curb Power of New Governor, N.Y. Times, Dec. 15, 2016, at A14.

[33] See Jones, supra note 13.

[34] See Jenna Portnoy, How Did Deeply Red Virginia Become Such a Challenge for the GOP in a Single Decade?, Wash. Post (Aug. 13, 2016), [].

[35] See NCSL Composition, supra note 14.

[36] See Jones, supra note 13.

[37] See NCSL Composition, supra note 14.

[38] See id.

[39] See Jones, supra note 13.

[40] See NCSL Composition, supra note 14. A federal court recently struck down Wisconsin’s state districting plan after finding that the Republican-controlled legislature had intentionally manipulated districts to favor Republicans. See Soffen, supra note 12.

[41] See Emily Lawler, Following Republican Sweep, Michigan’s Status as a Blue State Teeters, Mich. Live (Nov. 10, 2016, 11:30 AM), [].

[42] See Jones, supra note 13.

[43] See NCSL Composition, supra note 14.

[44] See Jones, supra note 13.

[45] See NCSL Composition, supra note 14.

[46] See id.

[47] See Voting Rights Act, 42 U.S.C.A. §§ 1973–1973q (2006); 28 C.F.R. Pt. 51, App. (2011) (listing jurisdictions required to get preclearance under the Act).

[48] See 2010s Cycle, Texas Senate Redistricting, Tex. Legis. Council, [] (last updated Jan. 9, 2015).

[49] See Texas v. United States., 887 F. Supp. 2d 133, 161–62 (D.D.C. 2012), rev’d Texas v. United States, 133 S.Ct. 2885 (2013) (mem.).

[50] Shelby Cty. v. Holder, 133 S.Ct. 2612, 2631 (2013).

[51] See id. at 2623–24.

[52] See U.S. Const. art. II, § 1.

[53] See id.

[54] See Nate Cohn, How to Explain Split Between Popular Vote and Electoral College, N.Y. Times, Dec. 20, 2016, at A17.

[55] See Michele Gorman, Extraordinary Moments in Electoral College History, Newsweek (Dec. 19, 2016, 7:10 PM), [].

[56] See Kenneth P. Doyle, Clinton Won Popular Vote by More Than 2.8 Million: FEC, Bloomberg BNA (Feb. 14, 2017), [].

[57] See Gregory Krieg, It’s Official: Clinton Swamps Trump in Popular Vote, CNN (Dec. 22, 2016, 5:34 PM), [].

[58] See Jones, supra note 13.

[59] See Lydia Saad, Americans’ Attitudes Toward Abortion Unchanged, Gallup (May 25, 2016), [].

[60] See Guns, Gallup (Dec. 23, 2016), [].

[61] See Healthcare System, Gallup (Dec. 23, 2016), [].

[62] See Lydia Saad, Americans Buy Free Pre-K; Split on Tuition-Free College, Gallup (May 2, 2016), [].

[63] See David W. Moore, Widespread Public Support for Campaign Finance Reform, Gallup (Mar. 20, 2001), []; Lydia Saad, Half in U.S. Support Publicly Funded Financed Campaigns, Gallup (June 24, 2013), [] .

[64] See Congress and the Public, Gallup (Dec. 23, 2016), [].

[65] See Sonam Sheth, Trump’s Approval Rating is the Lowest of Any Incoming President in Nearly 25 Years, Bus. Insider (Dec. 21, 2016, 1:33 PM), [].

[66] See Andrew Dugan, Majority of Americans See Congress as Out of Touch, Corrupt, Gallup (Sept. 28, 2015), [].

[67] See U.S. Const. art. I, § 3.

[68] See U.S. Const. art. I, § 4.

[69] See U.S. Const. art. II, § 1.

[70] See U.S. Const. amend. XXIII.

[71] See U.S. Const. art. V. In addition, any amendment to Senate apportionment must comply with the Article V requirement that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.” Id.