An Illegal Majority

The Republican majority in the U.S. House of Representatives currently stands at 218-213. But this majority is tainted: at least four of the Republican districts have been thrown out by the courts as racist gerrymanders. If the 2022 elections had used legal maps, Democrats would have a slight majority, not Republicans.

The House of Representatives would not have gone through all the turmoil that the illegal majority created: the threats to shut down government operations, the baseless impeachment hearings, the attempts to interfere in judicial proceedings on behalf of former President Donald Trump.

If you are wondering how America ended up with an illegal majority in the House of Representatives, here is a quick recap:

In Alabama, Republicans drew a map that illegally split a Black-majority district into two districts with Black minorities, resulting in 6 Republican representatives and 1 Democrat instead of 5 Republicans and 2 Democrats. The U.S. Supreme Court ruled in June 2023 that Alabama could not defend “a new racially discriminatory redistricting plan simply by claiming that it resembled an old racially discriminatory plan.”

In Georgia, Republicans drew a map that split up the state’s growing Black population and maintained white-majority districts, resulting in the election of 9 Republican representatives and 5 Democrats, instead of 8 Republicans and 6 Democrats. A federal judge ruled in October 2023 that the Republican map “has resulted in Black voters having less of an opportunity to participate equally in the political process than white voters.”

In Louisiana, Republicans drew a map that packed Black voters into one of the state’s six Congressional districts, although Black voters comprised more than 30 percent of eligible voters. A federal judge ruled in June 2022 that the map was illegal, but the Supreme Court allowed the map to stand while appeals were considered, so 5 Republicans were elected along with 1 Democrat, instead of 4 Republicans and 2 Democrats. In November 2023, an appeals court affirmed the district court’s ruling and instructed the Louisiana legislature to draw a fairer map.

In South Carolina, Republicans moved Black neighborhoods of Charleston out of a competitive district, leaving the district largely white. As a result, South Carolina elected 6 Republicans and 1 Democrat instead of a potential outcome of 5 Republicans and 2 Democrats. A federal judge ruled in January 2023 that the move constituted “a stark racial gerrymander” and ordered new maps drawn for the 2024 election. The case is currently being considered by the U.S. Supreme Court.

In addition to these four illegal Congressional seats, Republicans in Ohio defied the state’s Supreme Court, which threw out five consecutive maps as violating the Ohio constitution. A federal court then ruled that there wasn’t enough time to draw a fair map, so an illegal map was adopted for the 2022 election, resulting in 12 Republican representatives and 3 Democrats, in a state where Republicans are only 54 percent of eligible voters. After a change in personnel at the state Supreme Court, the court reversed itself and approved the biased maps in November 2023 – so the 2022 elections are now, retroactively, legal.

Republicans in North Carolina also tried to cheat Democratic voters out of three additional seats, drawing maps that would have resulted in the election of 10 Republicans and 3 Democrats, in a state that is evenly divided between Republicans and Democrats. The North Carolina Supreme Court struck down the maps in January 2022 as partisan gerrymanders that “substantially infringe upon plaintiffs’ fundamental right to equal voting power,” and the 2022 elections were held with fair maps that resulted in an even split of 7 Republicans and 7 Democrats. Because of a switch in the make-up of the North Carolina Supreme Court, the court reversed itself in April 2023, so this year’s election will likely be held with biased Republican maps.

Democrats gerrymander, too, but the only Democratic Congressional map that was ruled illegal – in New York — was thrown out before the 2022 election and did not affect the totals in the House of Representatives.

The upshot is that in state after state, the Republican Party has illegally suppressed the political representation of African-Americans, more than half a century after the Civil Rights Act. In a narrowly divided country, these efforts have swung the balance of power in the House of Representatives from a multi-racial coalition, the Democratic Party, to a much whiter Republican Party.

If four or more Republicans in Congress should not be in office, according to state and federal election law, then the Republican majority in the House of Representatives is illegitimate. And if the House majority is illegitimate, how can the House’s actions be considered legitimate?

There is, unfortunately, quite a bit of precedent for this situation. For most of the history of the United States, Congress and state legislatures were selected under procedures that have come to be considered illegitimate. At the time, this unrepresentative system was “legal” – according to laws passed by white men who prevented anyone else from participating in electoral politics. Some of their old laws stayed on the books long after women and non-whites gained the right to vote. For example, a Wisconsin law from 1849, banning abortion, briefly came back into force in 2022 after the Supreme Court’s Dobbs ruling. (Wisconsin’s constitutional convention – also all male – had discussed and rejected a proposal for women’s suffrage in 1846.)

The Comstock Law of 1873, which banned “obscene literature” from the U.S. Postal Service – and which is now being considered for a possible ban on the abortion drug mifepristone – was passed only by men. So was the Constitution itself, which gave every state two senators, regardless of population – one of the root causes of our current impasse in Congress. In the late 18th century, the smallest state had 1/12th the population of the largest – today the ratio is 1/68th, so that most Americans’ votes and views are significantly devalued in Washington. But we are stuck with an unrepresentative Senate because the all-male, all-white, all-wealthy authors of the Constitution – a third of them slaveholders – also made the document very difficult to amend.

We will probably have to live with the laws passed by today’s illegal House majority. Republicans won’t voluntarily give up their ill-gotten advantage – they wouldn’t even throw out Rep. George Santos, who misrepresented himself outrageously to voters during his electoral campaign, until it was revealed that he had also stolen money from donors. Judges are reluctant to order special elections to replace representatives who were improperly elected – the only remedy that courts typically consider is to order fair maps for the next election cycle.

So we will likely suffer the ignominy of an illegal majority in the House of Representatives for the rest of this session of Congress. The rule of law will have to wait.