Two months to elections and counting. Americans will be voting for the entire House, a third of the Senate and the President, as well as all members of state legislative lower houses and usually half of their state senators.
It may be an historic election, an election in which many states will be operating under rules adopted only in the last half dozen years. These rules affect the value of one’s vote and the ease of voting. All of this is occurring in a setting where fewer and fewer federal races are even competitive. Together these impose considerable challenges for those trying to dislodge incumbents the success of which may depend significantly on the level of voter turnout.
Voter dilution, voter suppression, turnout, the dwindling number of winnable seats. These four key factors will influence the outcome of the 2016 election and determine the future composition of the federal government.
Every 10 years, by Constitutional mandate, the U.S. government conducts a Census that determines the number of Representatives allocated to each state. The Constitution largely, although not entirely, leaves the manner in which those Representatives are elected to the states.
According to Article I, Section 4 of the U.S. Constitution, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Choosing Senators.”
In 1842, for the first time, Congress intervened in state elections, eliciting howls of protest from states’ righters. Congress demanded that Representatives “should be elected by districts composed of contiguous territory … no one district electing more than one Representative.” In 1872 Congress added the requirement that districts have “as nearly as practicable an equal number of inhabitants.” In 1901 and again in 1911, Congress also required the district be “compact.”
In 1929 Congress dropped all state election requirements excepting for single member districts. For the next three decades the size and design of voting districts rested entirely in the hands of state legislatures. To protect their seats, incumbents drew wildly unequal and discriminatory election districts. Fearful of losing their legislative dominance as populations shifted to urban areas, rural legislators designed districts whose populations sometimes varied by as much as 100 to 1. Race-based gerrymandering was common.
In 1962, in a 6-2 decision, the Supreme Court finally decided that federal courts could intervene to determine the constitutionality of state voting districts. As Justice William Douglas explained, if a voter no longer has “the full constitutional value of his franchise, and the legislative branch fails to take appropriate restorative action, the doors of the courts must be open to him.” In 1964 the Supreme Court clarified and amplified this decision by ruling that state Congressional districts must be similar in size so that “as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” Still another decision extended this requirement to both houses of a state legislature.
At the same time Congress again intervened, this time with the 1965 Voting Rights Act that banned racially based redistricting and racially discriminatory voting requirements.
Since then courts have repeatedly been asked to intervene. When faced with a clear case of racially based redistricting, they’ve often been willing to do so, but they’ve adopted a hands-off approach when the shape of a district, no matter how oddly drawn, is a result only of political partisanship, no matter how stark. Continue reading