Gerrymandering and Other Anti-Competitive Election Rules
Election competitiveness — or the lack thereof — has come under increased scrutiny in the last decade. One recent report from the Touro Law Review notes bluntly that electoral competitiveness is “at a 40 year low, with only five percent of Americans living in [state legislative] districts with elections won by five percent or less.” According to a report from Ballotpedia, roughly 35% of state legislative districts in the 2020 election featured no competition between the two major parties at all — in other words, there was not both a Republican and Democratic candidate running. As competition for political offices has diminished, elected officials have seen less incentive to balance competing constituent needs or find compromise solutions, allowing more extreme partisan views to hold sway.
In their 2017 report, Why Competition in the Politics Industry is Failing America, former Gehl Foods CEO and policy adviser Katherine M. Gehl and business expert Michael E. Porter contend, “The problem is not Democrats or Republicans…. The problem is not the existence of parties, per se, or that there are two major parties. The real problem is the nature of political competition that the current duopoly has created, their failure to deliver solutions that work, and the artificial barriers that are preventing new competition that might better serve the public interest.”
According to Gehl and Porter, despite the good intentions of individual politicians, the two dominant parties have rigged the system through gerrymandered districts that establish virtually unbeatable odds for one party or another, and caucuses, closed primaries, and other ballot access rules that further reduce the power of independent voters. In recent polls, more Americans identified as independents (50%) than as either Republicans (25%) or Democrats (25%), yet both parties have continued to support partisan rules that negate the independent vote.
The impact of this systemic flaw may be best reflected in a report from the Pew Research Center on why registered voters didn’t vote in the 2016 election. When asked, 40% of registered voters cited either a “dislike of the candidates or campaign issues” or they were not interested and felt their vote wouldn’t matter. Such a demoralized sense of civic responsibility is unsurprising in the context of heavily gerrymandered districts and the extreme politics it has fostered.
The Constitution requires that every ten years, the federal government conduct a census that each state uses to redraw its political district lines to account for changes in population. In many states, redistricting is done by the party controlling the state legislature, a circumstance that has led to the intentional drawing of electoral district lines to favor the party in power. This long-used and once-accepted practice is called gerrymandering. Gerrymandered districts are designed to enable the controlling party to retain and expand its hold on political offices.
In recent years, advanced data analytics and computer technology have allowed state election commissions to draw districts that are more crooked and purposeful in shape than was previously possible. This has made “safe seats” — elected positions that are gerrymandered to limit or negate competition for the office — a more common product. In a gerrymandered district, the winner of the favored party’s primary is, usually, almost guaranteed to win the general election.
In 2014, the Washington Post used historical data relating to Maryland’s 3rd Congressional District as a case study to illustrate how extreme gerrymandering had become. Over time, the Democratic-controlled Maryland legislature had drawn increasingly convoluted shapes for District 3 in order to maintain its Democratic lean.
Both parties are guilty of this practice, but throughout the 2010s, Republicans were in a better position to turn redistricting to their favor. Following the 2010 midterm elections, they took control of dozens of state legislatures and governorships just in time for redistricting following the 2010 Census. A 2017 Brennan Center for Justice report found that post-2010 gerrymandering provided Republicans with a 16-17 seat advantage in the US House of Representatives.
Gerrymandering doesn’t just impact government on a federal level. As reported by the Milwaukee Journal Sentinel, when Wisconsin governor Scott Walker (R) lost re-election to his Democratic opponent by roughly one point statewide in 2018, Republicans nonetheless won 63 out of 99 state Assembly seats, underscoring the powerful effects of the 2011 Republican gerrymander there. Just five of the state Assembly races were decided by less than five points — the rest were safe Republican or Democratic seats.
Such “safe seat” districts often discourage candidates from the minority party from even running: recall that a third of 2020 state legislative elections had just one major party candidate. When opposition candidates do run, races usually remain uncompetitive; In 2016, according to Gehl and Porter, fewer than 10% of US House races and only about 28% of Senate general election races were competitive, meaning that either party had a shot at winning based on ratings from election forecasters. In other words, in 90% of House races and 72% of Senate races, the winner was effectively decided in the primary.
Over the last six election years, from 2010 – 2020, between 32% and 43% of state legislative races had no competition in the general election, according to data from Ballotpedia. In the graph below, the red bar shows the seats that only Republicans, but not Democrats, ran for, and the blue bar shows seats that only Democrats, but not Republicans, ran for. Because third party or independent candidates very rarely pull out victories over the established parties, those seats are guaranteed for one of the two major parties.
For years, the Supreme Court was unable to come to a consensus on a test for unconstitutional partisan gerrymandering. In a 2019 5-4 decision, the Court declared the issue nonjusticiable — federal courts, in other words, do not have jurisdiction to weigh in on the “political question” of redistricting. The decision by the Court’s conservative majority closed one avenue that reformers sought to use to address partisan gerrymandering, though state courts remain potentially able to hear cases on it.
Caucuses and Primaries
Caucuses and primaries are used by the two major political parties to nominate candidates for presidential, state, and local elections. Though the rules governing them can change by party and from state to state, in general, they tend to exclude independent voters and less enthusiastic party members. In 2019, Open Primaries estimated that 27 million independent voters would not be allowed to vote in the 2020 presidential primaries because of closed primary laws or other restrictions.
Caucuses are much more exclusionary than primaries. While primaries simply require voters to cast a ballot, similar to the general election, caucuses ask voters to spend hours at a polling location, where they engage in conversations with other voters from their communities and, in some cases, physically move around the room as their vote changes. This may sound like a more deliberative form of democracy, but it leaves out potential voters who are unable to take multiple hours out of their day to vote due to work, responsibilities at home, or any number of other barriers. Generally, only the most enthusiastic and — often — partisan voters participate in a caucus.
Third Way cites the example of the Democratic Party process in Washington state in 2016. Washington Democrats held both a caucus and a primary. Results of the caucus were binding, which meant that all of the state’s voting delegates were awarded to the caucus winner, Bernie Sanders, at the Democratic National Convention that summer. Only 230,000 people voted in the caucus, with Sanders receiving 72% of the votes, while more than 800,000 voted in the non-binding Democratic primary, which gave Hillary Clinton a 52% majority of the vote. While Sanders may have had a more enthusiastic base of support — and thus an advantage in the caucus format — Clinton had a broader base of support that brought her the victory in the primary.
Primaries, however, can be exclusionary as well, depending on which category they fall into. Closed primaries only allow registered party members to vote in them. Semi-closed and semi-open primaries allow independent or unaffiliated voters to participate, though in some states, they must register with the party whose primary they choose to vote in. Only in open primaries can anyone participate.
Ballotpedia reports that 14 states and Washington, D.C. had closed primaries or caucuses for one or both parties for congressional and state offices in 2020. For the presidential primaries, at least 35 states held closed primaries or caucuses for at least one party, though some of the Republican primaries or caucuses were cancelled entirely (not unusual for the party of the incumbent president — both Barack Obama and George W. Bush saw a few cancelled state primaries in 2012 and 2004, respectively).
In those states with closed primaries, political independents have no say in who appears on the general election ballot. Rules governing semi-closed primaries vary from state to state, with some treating a primary vote as a form of party registration regardless of the voter’s intent regarding the party.
Sore Loser Laws
In 47 states, a candidate who loses a party primary cannot appear on the general election ballot. These states either have a law explicitly prohibiting a primary election loser from being included, or they create rules, such as early registration deadlines, that have the same effect.
Gehl and Porter cite the example of Republican Mike Castle, a nine-term US Representative from Delaware and former governor of the state. In 2010, he was heavily favored to win the US Senate seat vacated by Joe Biden, who had been elected vice president in 2008. Yet, he was defeated by Tea Party candidate Christine O’Donnell in the Republican primary. Despite his overwhelming popularity, state law prohibited him from appearing on the general election ballot as an independent candidate. (O’Donnell went on to lose the general election to the Democratic candidate, Chris Coons.)
It is rare, but not unprecedented, for candidates who lose in a party primary to nonetheless win the general election. Perhaps the most prominent example is Alaska senator Lisa Murkowski, who lost the Republican primary in 2010 but won a narrow victory in the general election as a write-in candidate — meaning she did not appear on the ballot, avoiding Alaska’s sore loser law.