Richard K. Neumann Jr. : Despite Democrats' edge in the popular vote, Republicans have kept command of Congress





[Richard K. Neumann Jr. is a professor at the Hofstra University School of Law.]

In the weeks before an election, pollsters ask the"generic ballot" question about the House of Representatives: If the election were held today, would you vote for the Democrat or for the Republican in your district?

The most recent polls report that 54 percent to 57 percent of the public would vote for Democratic House candidates and 37 percent to 41 percent would vote for Republicans. These are landslide numbers. Historically, a party with 54 percent of the popular vote can expect to win about 260 House seats, and a party with 57 percent wins 290 to 300 seats.

But nobody is predicting the Democrats will do anything like that now. Pundits are talking about the Democrats winning 215 to 220 seats, or, if they are very lucky, maybe a few more. (A House majority is 218 seats, and right now the Republicans have 230 seats.)

Who's right - the polls or the pundits? They both might be. Because of the dynamic in recent elections, the Democrats could take over the House by only a handful of seats while, paradoxically, winning the popular vote by a landslide. Or the Republicans could retain the House even if the Democrats get a strong popular vote majority, say 54 percent.

The reason is that the Republicans have been winning elections while losing or nearly losing the popular vote. Everybody knows that happened in the 2000 presidential election. But that wasn't the only time.

In 1998, Republicans lost the popular vote in the House races but still won a majority (223) of the seats - the only time that has happened since 1942.

In 1996 and 2000, the House popular vote was nearly a tie, the parties separated by less than half a percentage point, but both times Republicans won enough seats to keep governing (228 in 1996 and 221 in 2000).

The Republicans have been able to do this through relentless computer-aided gerrymandering. For example, in 2004 the Democratic popular vote grew by nearly 2 percentage points, and the Republican popular vote fell slightly. This should have translated into Democratic gains in the House. But instead, the Democrats lost seats because of the infamous Tom DeLay gerrymander in Texas. (Gerrymandering is drawing legislative district lines manipulatively to minimize the power of the other party's voters, either by concentrating them so they elect few legislators or by spreading them thinly over districts so they have little effect.)

The current Senate is made up of 55 Republicans, 44 Democrats, and one independent who caucuses with the Democrats. When that Senate considered Chief Justice John Roberts and Justice Samuel Alito, the power to confirm them was claimed by the Republicans to reflect the will of the people. But in the elections that produced the current 100 Senators, the Republicans got a total of 97,260,298 votes, and the Democrats got 99,657,929. The people thus voted for a Democratic Senate but got a Republican one.

In 2004, the Republicans gained four Senate seats and claimed victory. But in that year, the Democrats got more than 4 million more Senate votes than the Republicans did. This is possible because each state, regardless of size, elects two senators. And Republicans have an advantage, though not a commanding one, in small states. Wyoming and California, for example, are equally represented in the Senate, even though California's population is 69 times the size of Wyoming's. Wyoming's Republican Sen. Mike Enzi got 133,710 votes in his last election, while California's Democratic Sen. Barbara Boxer got 6,955,728.

An even more startling thing happened in 1980, when the Republicans gained 12 seats in the Senate and took over that body, despite getting nearly 3 million fewer votes than the Democrats. The Republicans did that by winning an unusually large number of extremely close races.

Even looking only at the number of seats the Republicans have held in Congress, they have been governing with tiny majorities for the past 12 years. Since they took over Congress after the 1994 elections, the Republicans have not had more than 232 seats in the House. Never before in American history has a party controlled the House continually through six consecutive elections by such thin margins. In contrast, during the 40 years preceding the 1994 elections, the Democrats never had fewer than 232 seats and at times had more than 290. Senate patterns have been similar.

The only way we can ever know whether an election signifies a real shift in public sentiment is by looking at the total popular vote nationally. Since the Republicans took over Congress in 1994, we have gotten the idea that they have some sort of lock on the national legislature. But a significant amount of that has really been accomplished through smoke and mirrors.

Copyright (c) 2006, Newsday, Inc.


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