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Wednesday, March 29, 2023

Do We Need to Expand the House of Representatives?

Danielle Allen, Harvard political theorist and Washington Post columnist, has an essay today on proposals to expand the House of Representatives. She argues,

To get our politics working again, we need a system that delivers energy (the ability for the government to get things done), republican safety (protection of our basic rights), popular sovereignty (adaptive responsiveness to the will of the people) and inclusion (all voices should be synthesized in the national voice of our House of Representatives). Real proximity of representatives to their constituents is necessary for delivering on all those design principles. For that, we need a bigger, and continuously growing, House of Representatives. We need smaller districts and fairer representation between more- and less-populous places.

This seems to make intuitive sense, given that the original House districts under the Constitution had only 30,000 people and the current 435 member House was established in 1929. Allen's column discusses proposals that would increase the House to somewhere between 574 and (fancifully) 9200.

There is a problem, however, that Allen does not address. Smaller districts would be easier to gerrymander; in some cases much easier. Far from getting "our politics working again," smaller districts would add to the logjams.

If you don't believe me, just look at state legislatures in places like Florida, North Carolina, and Wisconsin, where small districts have resulted in entrenched Republican majorities -- and in Florida, supermajorities -- even when the actual votes are almost evenly divided.

The computer-assisted art of drawing partisan districts becomes increasingly refined as districts become smaller, resulting in less democracy, not more.

For all of its design flaws, the U.S. Senate has one great advantage under the Seventeenth Amendment. Elections are statewide and cannot be gerrymandered.

Just take a look at Georgia, where votes have been almost evenly split: The House delegation has nine Republicans and five Democrats, an almost two-to-one division, while the non-gerrymandered Senate has two Democrats. Or Arizona, where the House delegation has six Republicans and three Democrats (two-to-one), while the non-gerrymandered Senate elections were won by two Democrats (one of whom is now Independent). Likewise, heavily gerrymandered Massachusetts and Maryland have recently elected two Republican governors in non-gerrymandered statewide elections.

Of course, constituent communication has greatly improved since 1929, when fewer than half of American households even had radios, so today's larger districts do not necessarily mean less responsiveness.

But the bottom line is that bigger districts = less gerrymandering, and smaller districts = more chicanery.

Comments are open, but will be screened for relevance.


Posted by Steve Lubet on March 29, 2023 at 07:21 AM | Permalink


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Compare this to Michael Dorf and Neil H. Buchanan strongly reject that as an actual legal option.

No comments are allowed on two blogs where GM referenced his alternative take. It makes me wonder why he thinks Dorf and Buchanan (who has written much on this topic on Dorf on Law and other places) are wrong.

Posted by: Joe | May 12, 2023 9:50:54 AM

Orin, you're at it again, bringing your expertise in the relevant field into the discussion.

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Posted by: Khatron Ke Khiladi | Apr 3, 2023 8:24:29 AM

Thank you for leaving the comments open.

I enjoyed Prof. Allen's book on the Declaration of Independence.

I think JoeG's "net benefit" statement is where I would lean.

When we change things, we need to factor in the consequences. So, the concern about gerrymandering is valid. But, I think her arguments as a whole are correct.

If there actually was a will to change the size of the House, I think there is a good chance there would also be a will to address gerrymandering.

Posted by: Joe | Mar 29, 2023 8:57:35 PM

Thanks for the comment, ALP. Yes, there is a curve. Extreme expansion of the House would not be gerrymanderable, but any likely and feasible expansion would lead to more effective gerrymandering. In the current political environment, would the incumbent legislators make sure that any expansion would increase their advantage?

Posted by: Steve L. | Mar 29, 2023 9:58:52 AM

I agree that this is a significant issue with more representation, even though if it could be done fairly, I think it would be a net benefit.

The solution though is one that they hint at in their report, Recommendation 1.3. The recommendation is to "Allow states to use multi-member districts on the condition that they adopt a non-winner-take-all election model." This should be a must requirement, not an option. Having something like a single-transferrable vote method in place would make gerrymandering much more difficult in practice.

Posted by: JoeG | Mar 29, 2023 9:53:36 AM

An interesting argument. I have two counterpoints:

1. I'm not convinced that bigger districts lead to less gerrymandering. Certainly, it's impossible to gerrymander a statewide district. At the same time, a state with two large districts would be extremely gerrymanderable. For instance, if a state is 55-45 Republican-Democratic and has only two districts, it's super easy to draw the line between those districts to ensure that both districts are also 55-45 Republican-Democratic, thus giving Republicans both seats despite only having a small majority of statewide support.

2. Assuming your argument is correct, this level of gerrymanderability must then exist on some curve. For instance, at the smallest end of the spectrum, districts comprised of only one person would be impossible to gerrymander. Districts of, say, 100 people would be gerrymanderable to some extent, but the sheer number of districts would still ensure that the resulting legislature generally reflects the ideological make-up of the voters, as such small districts would be far less malleable than the district sizes we typically see today. It would be interesting to try to figure out at what population size a district becomes the most gerrymanderable in a given state---what's the peak?

Posted by: AspiringLawProfessor | Mar 29, 2023 9:51:47 AM

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