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Background: The U.S. mid-term elections will be held on November 8, 2022. In this election, every one of the 435 seats in the House of Representatives and 35 — slightly more than one-third — of the 100 seats in the Senate will be up for grabs. Alongside the election of these lawmakers in Washington, 39 state, gubernatorial and a range of other local contests will be on the cards.
A major redistricting exercise happened following the 2020 census, in which the boundaries of voting districts were redrawn by state authorities, amidst controversy relating to gerrymandering allegations, in some cases.
At the federal level, the stakes are high for Democrats to retain their grip on both houses of Congress. While earlier this year, it appeared that the Republican Party held the edge in many of the races slated for November, the Supreme Court ruling against the constitutional right to abortion as enshrined in Roe vs Wade is expected to galvanise liberals across the board and potentially lead to significantly higher turnouts on election day.
The Congressional inquiry into the January 6, 2021, riots and assault on the Capitol building by alleged supporters of former president Donald Trump, and the seizure of classified documents from Mr. Trump’s mansion in Mar-a-Lago, Florida, have further muddied the prospects for Republican candidates who leaned on Mr. Trump for support. Nevertheless, many of the races in the mid-term elections remain close, as U.S. President Joe Biden still polls poorly across the nation for his performance in office, inflation and recessionary concerns for the economy remain, and the impact of the COVID-19 pandemic has still not worked its way out of the system as yet.
The U.S. political system is characterised by the tripartition of power across organs of the state. After the war to establish independence from the Great Britain, in its effort to set up political institutions for governance, the U.S. borrowed from the ideas of French philosopher, Montesquieu, who in 1748 spoke of a division of power to ensure that no single person or group could assume autocratic authority owing to a system of checks and balances between executive, legislative, and judicial branches of government.
In the U.S. context, these three branches are represented by, respectively, the President, Congress and the courts led by the Supreme Court. However, there is an important difference in the balance of power between these three arms of the state in the U.S., as compared to parliamentary democracies such as India. In India, the executive draws its very authority to make policy from its majority control of Parliament, and the proximity of this relationship implies that there is no realistic scenario where Parliament may overrule the actions of the Executive, which is the Cabinet led by the Prime Minister.
However, in the U.S., not only is the President empowered to veto legislation passed in Congress, but the President’s power is circumscribed by Congress’s power to vote out, by a two thirds majority, a presidential veto of a law that it had passed. Further, Congress controls budget appropriations which essentially gives it the levers to control what the White House can and cannot do in terms policy — effectively setting limits to presidential power yet again. Simultaneously, U.S. presidents enjoy a certain amount of autonomy from Congress as they are not members of Congress as such but are elected indirectly by the people, through the electoral college.
On the other hand, U.S. courts possess the power to constrain the reach of Congressional legislation by, where the situation warrants it, declaring laws passed by Congress unconstitutional. They also have the power to declare presidential actions as unconstitutional in scenarios where it is believed that the President has acted beyond the scope of their legitimate authority.
Thus, all three branches of the U.S. government enjoy a balance of autonomy and limitations of powers imposed by the other two branches, which establishes a robust system of checks and balances and differentiates the balance of power and functioning of U.S. state institutions from those of parliamentary democracies.
The flip side of strong checks and balances is the increased risk of gridlock whereby the very functioning of the U.S. government can be seriously stymied. This is often seen in the case of federal shutdowns leading to the furlough of many thousands of government employees, or of major hurdles to the passage of landmark legislation such as the Affordable Care Act spearheaded by the Barack Obama administration in 2010. In each such case, the resolution of the policy crisis has required adroit dealmaking, essentially pork-barrel politics to appease various Senators or Congressmen, a modality that undermines the effectiveness and credibility of the Executive.
The sense of stalemate at the federal level, particularly in Congress, is deepened by what is known as small State bias. This bias, an institutional deficit in the U.S. electoral system, stems from the fact that there is a growing chasm between the rapidly growing, densely populated and increasingly diverse States along the two coasts of the U.S. and the more numerous yet considerably more homogenous, sparsely populated States in the hinterland. Given that under the U.S. constitution only two Senators are allocated to each State regardless of its population, large States such as California have the same number of representatives in the Upper House as, for example, Wyoming, which is the U.S.’s least populous State.
This means that just to break even in the 100-seat Senate, Democrats need to win a far greater proportion of the national vote than the Republicans. Consider the example of the evenly split present Senate, where 50 Democratic Senators represent 56.5% of the voters, but the 50 Republican Senators represent only 43.5% of the voters. As analysts have noted, in the 2018 mid-term elections, Democrats won nearly 18 million more Senate election votes than the Republicans, but the Republicans still gained two seats, with major implications for policy. The correction of this small State bias would require political heavy lifting to bring about constitutional amendments that allowed for a greater measure of proportional representation for Congress.
The House of Representatives does reflect the demographic realities of the country, in that Congressional districts for the election of its members are based on population size. However, the precise demarcation of each district’s boundary makes a significant difference to electoral outcomes as within each district a first-past-the-post — rather than proportional voting — system is followed where the majority winner claims the House seat for that district.
While redistricting, the process of redrawing electoral boundaries is an exercise conducted across U.S. congressional and state legislative districts every decade, following the publication of the results of the population census, gerrymandering or making calculated political gains through redistricting is a blight on the functioning of substantive democracy in the U.S.
The movement of Democratic supporters into urban areas, and the movement of Republicans to rural areas with far lower population density is a well-established long-term demographic trend. Given this skewed geographic distribution of voters over time, Republican Party lawmakers have discovered political gains in including or excluding cities in a district with a relatively larger proportion of rural voters depending on the density of Democratic residents.
The deep concerns surrounding gerrymandering came to the fore after the 2020 census results were announced in August 2021, a delayed outcome owing to the COVID-19 pandemic. In its wake, several ‘swing States’, or States that have historically switched between voting Republican and Democrat, including Georgia, North Carolina and Ohio, Republican state legislators have managed to gerrymander electoral districts to create “supermajorities” where none existed before, posing a challenge to the legitimate authority of the Democratic Governor of the State in question.
In such a scenario, short of moving the courts on redistricting methodologies, the political process leaves Democrats with few options to impact policymaking, thus undermining the representation of the people by their government. As noted earlier, the U.S. Congress is virtually gridlocked on major policy issues, leaving vital questions in areas such as reproductive rights, gun control and healthcare reform in the hands of state authorities to implement or not as they choose. Abortion rights, for example, have now been entirely handed over to U.S. States to implement or not, as they will. This makes gerrymandering a factor of serious concern.
Before the Voting Rights Act of 1965 passed into law, redistricting was driven by ‘packing,’ the attempt to redraw electoral district maps to ensure that a larger proportion of a specific demographic group, such as African American voters, is ‘packed’ into a single or a few districts, blunting their ability to decisively determine an electoral outcome. Until the second half of the 20th century, Southern States especially controlled the impact of the African American voter through such means. The other side of the coin to packing is ‘cracking,’ a process through which lawmakers break down the bunching together of certain voters who would support their opponents’ party, and spread them more thinly across several districts, thus diluting their vote.
Ultimately, it is only when bipartisan independent commissions are given control over redistricting that the process stands a chance of being rebalanced fairly towards representing only genuine changes in population distribution. Currently, 39 out of 50 U.S. States do not have any such independent body deciding this matter, leaving lawmakers in these States free to gerrymander and undermine the election process significantly.
