Posted by Emily Risch on February 06, 2019 at 5:57 PM

In the coming months, U.S. Rep. Don Beyer of Virginia plans to reintroduce the Fair Representation Act, reviving the bold new vision for congressional elections originally put forth in his 2017 legislation by the same name.

Multi-member congressional districts with ranked choice voting remain new ideas to many, but the proposals are increasingly gaining traction among elected officials and news media, including the editorial board of The New York Times. Moreover, the idea is not a new one. Each element drew upon a rich history of local, state, and federal approaches to elections. Finally, its approach was consistent with centuries of congressional action to address problems in federal elections

In this white paper, we show how that history evolved since the ratification of the U.S. Constitution in 1788, along with how progress has stalled since 1967. With the dysfunction of the current system more apparent each election cycle, the time has come to revisit how we elect the "People's House."

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In the coming months, U.S. Rep. Don Beyer of Virginia plans to reintroduce the Fair Representation Act, reviving the bold new vision for congressional elections originally put forth in his 2017 legislation by the same name.

Multi-member congressional districts with ranked choice voting remain new ideas to many, but the proposals are increasingly gaining traction among elected officials and news media, including the editorial board of The New York Times. Moreover, the idea is not a new one. Each element drew upon a rich history of local, state, and federal approaches to elections. Finally, its approach was consistent with centuries of congressional action to address problems in federal elections

Thomas Jefferson wrote, “laws and institutions must go hand in hand with the progress of the human mind.” While this has indeed been the American tradition, it has stalled for nearly half a century. The Fair Representation Act creates the potential to reopen that dialogue and update our elections to reflect the changes in our politics.

The Constitution and the Early Congresses (1788-1842)

Elections today would be unrecognizable to the founding generation, and vice versa. In the 18th century, there were no primary elections, no secret ballot, and no national Election Day. Voting took place outdoors, outside the public courthouse, and choices were cast verbally, by a show of hands, or by dropping a hand-written ballot into a glass box.

The Constitution provides little guidance as to how representatives should be chosen. The entirety of the constitutional text on congressional elections (excluding voter and candidate qualifications) reads as follows:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States[.]

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 Places of chusing Senators.

In other words, as long as representatives are “chosen … by the People of the several states,” then everything else is at the discretion of Congress first and the states second.

For the first era of our electoral history, Congress did not regulate these elections. Some of the larger states used single-winner districts, while many of the smaller states chose all of their representatives in statewide elections. Still others used a combination of both districted and at-large elections. Consider the following convoluted rules employed by Massachusetts in its elections to the third Congress:

The voters of Districts One and Two each could vote for four candidates, but the votes had to be distributed as follows: one vote for a candidate from each of the three counties in the district and one additional vote for any candidate from any part of the district. In the Third District each voter had two votes; one had to be cast for a candidate from Barnstable, Dukes and Nantucket counties and the other for a candidate from Bristol and Plymouth. In addition all voters in the above three districts cast one additional vote for any candidate from anywhere in the three districts, listed in the returns as at-large. Voters of the Fourth District had three votes, one for a candidate from York, another from Cumberland and the other from any of the remaining counties of this district.

In these early elections, states often explored and experimented with their laws. Over time, the states began to fall into patterns. The exclusive use of single-winner districts became most common, especially among larger states. In smaller states, the most common method was to elect statewide by block voting, meaning voters could cast a vote for as many candidates as there were seats to be elected, with the top vote-getters winning.

Block voting is a ramped-up version of winner-take-all. In a state divided between two major parties, block voting gives the majority party the power to elect every single representative. This was especially easy before states adopted secret ballots in the early 20th century, because the political parties would provide pre-voted ballots, or “party tickets,” to voters, who then only had to cast them. For that reason, this system came to be called the “general ticket.” States using this system almost always elected single-party slates. For example, in the New Hampshire election in 1831, the state was split about 55-45 between the two major parties of the time. Thanks to block voting, 6 Jacksonian candidates were all elected with nearly identical vote margins of about 55%, while the 6 National Republican (or “Anti-Jacksonian”) candidates all lost, also with nearly identical vote margins of about 45%. This gave rise to the first instance in which Congress stepped in to correct an obvious injustice.

The First Single-Winner District Mandate (1842-1929)

The political parties noticed the fact that single-party slates were winning states that used the general ticket. In 1840, Alabama - controlled by the Democratic Party of the time - switched from single-winner districts to statewide general ticket elections. The change led the the replacement of what had been a  divided delegation of 3 Democrats and 2 Whigs in 1839 to a solid slate of 5 Democrats in 1841. Congress feared that other states would follow suit, and took action.

At the time, Congress passed an Apportionment Act after each census, in which it established how many total representatives in Congress there would be (a number which grew as the population grew) and how to apportion them among the states. In 1842, they used the Apportionment Act to pass a new regulation of congressional elections to stop the abuse of the general ticket system, requiring that every state elect exclusively from single-winner districts.

Congress did this very explicitly motivated by the goal of fair representation. Senator Jacob Miller from New Jersey said the following of the law’s lofty goals:

Every voice will be heard, every right will be seen, and every wrong felt; and then the House of Representatives will become what the Framers of the Constitution intended it should be - a bright and honest mirror, reflecting all the lights and shades of the multifarious interests of this mighty people, as they lie spread out over this broad land.

Of course, single-winner districts could not (and did not) accomplish this goal, but it was the best solution available. Ranked choice voting (RCV) and other fair representation voting methods would not be invented for another two decades.

With each new Apportionment Act, Congress continued to regulate elections:

  • 1842 - Single-winner districts, contiguity
  • 1852 - no requirement
  • 1862 - Single-winner districts, equal population, contiguity
  • 1872 - Single-winner districts, equal population, contiguity
  • 1882 - Single-winner districts, equal population, contiguity
  • 1891 - Single-winner districts, equal population, contiguity
  • 1901 - Single-winner districts, equal population, contiguity, compactness
  • 1911 - Single-winner districts, equal population, contiguity, compactness

The 1911 Act was also the first time the size of Congress was set at 435 representatives, which at the time meant that there was one representative in Congress for every 212,000 people.

After the 1920 census, this fell apart. That census showed that a majority of the United States population lived in urban areas. Increasing the size of Congress again would give far more influence to states heavy in such urban areas. The newly elected Republican majority saw that as a threat, and as a result, Congress failed to deliver on its constitutional obligation to reapportion.

The stagnation lasted until 1929, when Congress reached a compromise. They would reapportion, but the size of the House would remain fixed at 435 Representatives - the same size it is today, even though the population of the United States has tripled since then. Congress never passed another Apportionment Act.

The 1929 act did not include any districting requirements. Records suggest the regulations were omitted not because Congress desired to return to at-large elections or malapportioned districts, but because it assumed that the regulations of the 1911 act would still be in effect regardless of their inclusion in the 1929 act. This oversight resulted in the first major foray of the court system into redistricting law, the 1932 Supreme Court case Wood v. Broom.

When Mississippi was given seven representatives after the 1930 census, instead of the eight it previously held, the state legislature redrew the district lines in violation of the 1911 Act’s compactness and contiguity requirements. The Supreme Court determined that although the 1911 act had not actually been repealed, its districting provisions no longer applied because districts were now being based on the 15th Census, rather than the 13th, which formed the basis for the 1911 act. With that decision, there was no longer any federal regulation of congressional elections.

Early Proposals for Fair Representation in Congress (1868-1870)

Meanwhile, in the mid-19th century, new political factions began to emerge all over the world. As this occurred, theorists developed ways of incorporating them into political power by changing voting methods, and they called the new methods “proportional representation.” This led to the spread of the party-list forms of proportional representation used internationally today. Several of the first proposals provided proportional or minority representation but involved voting for candidates. These included the single-vote method, cumulative voting, and ranked choice voting. In fact, ranked choice voting successfully served to elect legislative offices in Denmark starting in 1855.

This did not go unnoticed in the United States. Senator Charles Buckalew of Pennsylvania had been one of the strongest supporters of the single-winner district system. However, when he learned about the new fair representation voting methods, he quickly became an advocate. In 1867, he introduced a bill that would require every state to elect statewide with cumulative voting. Although the new idea did not become law, it did lead to a lengthy report by a “Select Committee on Representative Reform” that argued that the idea could improve congressional elections and reduce the polarized politics of the Reconstruction Era.

In 1870, Representative Samuel Marshall from Illinois introduced a similar bill in the House of Representatives. However, it was argued - correctly - that cumulative voting (unlike ranked choice voting) was vulnerable to vote coordination that could lead to the same majority party control that general ticket did. The bill lost in the House by only two votes. It was at this time that advocates for fair representation moved their efforts to the state level, where they successfully pushed for adoption of cumulative voting in Illinois. Their successors would later partner with progressive reformers to help two dozen cities adopt ranked choice voting in citywide elections, with a number of positive effects. However, there were no more proposals for fair representation in Congress until the late 20th century.

The Second Single-Winner District Mandate (1960-1970)

After the Permanent Apportionment Act of  1929, neither Congress nor the courts imposed any structure on congressional elections for 30 years. States remained free to elect using any combination of statewide elections, multi-winner districts, or single-winner districts. In 1946, the Supreme Court expressly declined to get involved when a citizen brought a lawsuit arguing that Illinois’ congressional districts violated the Constitution because they did not have equal populations. Justice Felix Frankfurter then made his famous declaration that “Courts ought not to enter this political thicket.”

In 1962, Justice Frankfurter would dedicate over 60 pages to a dissenting opinion in the landmark case where the Supreme Court finally took up the issue. In a string of cases between 1962 and 1964, the Court declared that congressional districts (and all other electoral districts) must have an equal number of people per representative elected.

The practical impact of these decisions was huge. At the time, districts often varied enormously by population. Although this was patently unfair, it did make redistricting simple. If a state kept the same number of representatives after a new census, it often just continued using the old districts. When redistricting was necessary, it could simply group together convenient counties. As soon as these decisions came out, nearly every state found it was using unconstitutional districts.

At the same time, Congress again began to exercise power over elections. The tumult of the 1960s led to two major changes to voting in the U.S. The 24th Amendment to the Constitution banned poll taxes in 1964. Then, the Voting Rights Act of 1965 banned literacy tests, grandfather clauses, and other obstacles to voting access for people of color.

When these barriers to voting became illegal, states began to get creative. Many realized that instead of denying the right to vote, they could dilute the votes of minority voters. Block voting in at-large elections - the very method used to shut out the Whigs from representation in Alabama in 1841 - could just as effectively ensure that African Americans could not elect a single candidate of choice. Shortly after the passage of the Voting Rights Act, cities, counties, and school boards across the South switched from single-winner districts to at-large elections with block voting.

In 1967, Congress noticed the use of block voting to dilute the votes of people of color. They saw how the Court decisions through 1964 would make redistricting a far more complicated affair. They also knew that there was no federal law requiring districted elections, with Hawaii and New Mexico already electing their representatives statewide. This led to an inescapable conclusion: in the absence of a new federal mandate, many states would soon switch to at-large elections with block voting for their congressional offices. They would do so ostensibly to avoid the complicated task of redistricting, but also to dilute the votes of minority voters in their states.

This would have been an opportune time for Congress to revisit the question of fair representation voting. Unfortunately, no bill was introduced. It seems there was simply not a strong advocacy effort for it at the time.

However, Representative Emmanuel Celler had been pushing for a return to the requirement for equal population, compact single-winner districts since the 1950’s. His bill failed again in 1967, but Congress realized that something needed to be done and attached a rider to a small private bill (A Bill For the Relief of Dr. Ricardo Vallejo Samala) that required single-winner districts. That is the single-winner district mandate, enshrined in 2 U.S.C. § 2c still in law today.

Modern Proposals for Fair Representation

The mandate in 1967 set the battlefield for the modern redistricting wars. Every decade, states had to  draw new, equal population districts. As technology improved and voters became more rigid in partisan voting, gerrymandering became a more and more ubiquitous part of that process. With the courts still very much stuck in the “political thicket,” every redistricting cycle included years of expensive litigation. Although the 1967 law prevented further abuse of at-large elections with block voting, it locked us into a failing system. More and more, congressional elections became uncompetitive and unfair, with people increasingly losing faith in Congress.

The fair representation solution was rediscovered in large part thanks to the Voting Rights Act. In the late 1980’s, legal scholars began exploring - quite successfully - the use of fair representation voting to resolve vote dilution cases brought under Section 2 of the Voting Rights Act. That elevated the topic back to the federal level in 1993 when President Bill Clinton nominated Lani Guinier, a prominent advocate for fair representation, to head the Civil Rights Division of the Department of Justice. Although Guinier’s nomination was scuttled by opponents, members of Congress picked up on the idea, and the 1990’s saw the first bills to reintroduce fair representation voting since Rep. Marshall’s bill over 100 years prior.

From 1995 into the 2000s, three types of such bills were repeatedly introduced:

  • 1995 - Voters’ Choice Act (HR 2545)
  • 1999 - States’ Choice of Voting Systems Act (HR 1173)
  • 2005 - Congress 2008 Commission Act (HR 1989)

One bill to allow the use of fair representation voting was repeatedly introduced by Rep. Cynthia McKinney from Georgia. Another, sponsored by Rep. Alcee Hastings, would have created a commission to explore the idea, along with also reconsidering the overall size of the House of Representatives. But the bill to attract the most attention was Mel Watt’s States’ Choice of Voting Systems Act, introduced in 1999. The bill was bipartisan, co-sponsored by both Democrats and Republicans, as well as Independent Rep. Bernie Sanders. It received favorable testimony, including from the Civil Rights Division of the Department of Justice. Like the McKinney bills, it would have allowed the use of fair representation voting without requiring it.

In 1992, FairVote was formed in Cincinnati, Ohio following a narrow loss in a campaign to restore multi-winner RCV to the city. Analysis of congressional elections and the dysfunction caused by winner-take-all began early on. This analysis lead to the development of “Fair Voting Plans” consisting of multi-winner districts for congressional elections, and ultimately led to the creation of a model Fair Representation Act to implement such proposals.

In the time since FairVote developed its proposed reform for congressional elections, the case has become increasingly clear. We now live in a period of dangerous partisan tensions driven by our winner-take-all politics. This has led to renewed support for a real and enduring solution, including among members of Congress.

The Future

Past met present when Rep. Don Beyer introduced the Fair Representation Act, HR 3057. The bill proposed completely replacing the winner-take-all system with ranked choice voting in multi-winner elections. Over the course of the 115th Congress, HR 3057 attracted five additional co-sponsors, and plans for reintroduction this session appear poised to gain even more support given the appetite for election reform evident among our leaders.  Supporting research shows this approach would engender a politics where every vote in every district really mattered, in which representatives worked together in the interest of American voters, and in which Congress truly was a “bright and honest mirror,” reflecting all facets of American political values.

The Fair Representation Act draws on a history of electoral reform, identifying the best ideas to resolve the most pressing problems with congressional elections. It represents the long-awaited fulfillment of Congress’s responsibility to act when elections are broken, a responsibility ignored for half a century.  In short, it represents the future.

 

 

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