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Posted by on Nov 5, 2018 in 2016 Presidential Election, 2018 Elections, Democracy, Politics, Voting | 0 comments

Could Tuesday’s elections end in a quirky, dangerous, controversial outcome? It is possible.

I’m not making predictions for Tuesday night. Like most people, I was burned in 2016. At the same time, I don’t want to “over-learn” the lesson of that year. Each election season is different, though some patterns hold true over time. All I’ll say is that I generally agree with the major House rating agencies (Cook, Sabato, 538, Inside Elections) that Dems will pick up the House, gaining anywhere from 27 to 44 seats. They need 23 to take the chamber. Dems won’t take the Senate but look in good position to hold serve and take it in 2020 when the map is better.

But there is one scenario that I dread. And I think Americans need to think through this scenario because it could happen and will be catastrophic for the country. I’m talking about a situation where the Democrats win the national popular vote for the House of Representatives by something like 5 or 6 percentage points and fail to take the House chamber. I don’t just dread this because the Dems would come up short again. In fact, if they are going to fail to take the House, I would much rather it happen because they received fewer overall votes. But this hellscape is a real possibility and its effect would be to de-legitimize our entire system of government.

Gerrymandering has been with us since, well, Elbridge Gerry. Gerrymandering is the process by which map-makers construct a district map that locks most supporters of one party into a singular district while the dominant party claims all the remaining districts by a smaller majority. Think of a state with four districts and 1,000 people, half of whom support Party A and half support Party B. That should produce two Party A seats and two Party B seats. But gerrymandering allows Party A to draw the lines such that 80% of all Party B supporters are in one district while Party A maintains a 58-42 advantage in the other three districts. Party A thus secures a 3-1 seat advantage. What’s worse is that that same legislature gerrymanders its own state legislative seats while also gerrymandering Congressional seats. They can only be altered once every ten years. But once locked in place, it become nearly impossible to overturn without major demographic change. The result is that the opposition party just gives up, and doesn’t bother to even try to take back those gerrymandered seats.

Tennessee had a version of this in the 1850s when Clarksville Whig Gustavus Henry preserved Whig control of the state legislature in what his opponents called a “Henrymander.” But gerrymanders were usually a bit messy in the past, because map-makers weren’t as sophisticated as today and populations shifted around. Still, both parties practiced this for a long, long time, as the Constitution allows state legislatures the power to determine district boundaries.

I should add that the natural distribution of party members is NOT the reason so few districts are competitive. In Pennsylvania, lots of observers said that the propensity of Democrats to pack into Philadelphia and Pittsburgh meant that the state’s GOP majority couldn’t help but set up its Congressional delegation map to produce a 13-5 Republican majority, even though statewide partisan votes were equal or even pro-Dem. But then the state Supreme Court threw out its hideous gerrymandered map, hired a non-partisan expert to redraw the lines, and voila – Pennsylvania now has a map that is fair for both parties. Even better, it coheres with natural and political boundaries instead of running through random streets. It’s fair enough too that while Dems will win a majority of seats in a good Dem year, Republicans will win a majority of seats in a good GOP year. Natural population distribution wasn’t to blame for the nasty old map. Gerrymandering was.

Still, for all the talk of gerrymandering, one scenario has never arisen, and it’s the one that could happen on Tuesday. Never has one party won a majority of the nation’s votes for House of Representatives by more than a percentage point without taking the actual chamber. In 2012, Dems won overall House votes by 1 point and lost the overall House. In 1996 the overall House vote was pretty much tied. Now, to be sure, there have been many elections where the MARGIN of victory is distorted by gerrymandering. In the early 1980s the Dems won House majorities well out of proportion to their national House popular vote, just as the GOP did in 2016. But never have we seen a party lose overall House votes by more than a point and hold House control.

What makes this scenario so dangerous is that a version of it just happened with the Electoral College in 2016. Add to that the hardball tactics of the GOP Senate refusing to hold hearings for a Supreme Court seat and it’s hard to conclude that our system of government is anything like a representative democracy anymore. I should add that this won’t be for lack of trying to compete with the current map. Democrats are fielding good candidates in swing districts everywhere; it’s not like Dems are just running up the score in urban blue districts. They could still face an insurmountable wall of a map that can’t be undone because the next set of state legislatures will be elected by the same rigged process.

People can put up with a distortion like this in one part of the government on occasion. But when the one body designed by the Founders to be majoritarian – the House of Representatives – is just as counter-majoritarian as the Senate, we’ve got a big problem. (The 3/5 clause giving slave states an artificial House advantage was also a major driver of political tension, requiring massive immigration to Northern states to overcome). In fact, we could have a legitimacy crisis, as a majority of Americans may decide that voting isn’t worth it at all. And that’s when we start getting into dangerous territory, an oligarchy to be confronted by rebellion rather than a representative democratic majority to be voted out by election.

Let us hope nothing like this happens. It is not a likely outcome. But we should think carefully about the consequences if we have minority-rule in the White House, Senate and House of Representatives at the same time.

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