The day after the election last month, ThinkProgress took a preliminary tally of the total number of votes cast for candidates for the House of Representatives. We found that, despite the fact that Republicans won a commanding majority of the seats, the American people cast more than half-a-million votes for Democrats. This number was based on early tallies, however, and it was especially likely to undercount many West Coast states that had less time to count ballots.

More than a month after the election, the Democrats’ popular vote lead expanded significantly. Based on current tallies, Democrats now lead Republicans 59,343,447 to 58,178,393 in total votes cast for their House candidates — meaning that the American people preferred Democrats over Republicans by nearly a full percentage point of the total vote. Yet, despite clearly losing the popular vote, Republicans will control nearly 54 percent of the seats in the House in the 113th Congress.

This disparity between the will of the American people and the actual outcome of the election did not happen by accident — it is largely the product of massive gerrymandering by Republican state officials. President Obama won Pennsylvania by more than 5 points, but Democrats carried only 5 of the state’s 18 congressional seats. Obama won Virginia, and Democrats took 3 of 11 House seats. Obama won Ohio, but Democrats carried only 4 of 16 seats in Ohio’s House delegation. In state after state after state, Republicans used their unconstitutional ability to gerrymander Democratic votes into meaninglessness — and they were able to do so because the conservatives on the Supreme Court refuse to do anything about it.

In just a few weeks, a misguided package of spending cuts and middle class tax hikes threatens to drag America back into recession. Just over a month after that, America risks defaulting on its debt — potentially plunging us into depression. And even if these immediate threats are averted, it could come at a very high price. In an attempt to strike a deal with recalcitrant Republicans, President Obama recently offered to take future Social Security benefits away from seniors. Meanwhile, Speaker Boehner can’t even manage the right flank of his caucus enough to hold a purely cosmetic vote intended to counter the — now entirely justified — view that Republicans care primarily about protecting millionaires from paying taxes. Because of the Republican Party’s apparently inability to negotiate in good faith in order to avert catastrophe, America now faces the very real possibility of an economic collapse once the debt ceiling comes due early next year.

All of these risks would evaporate completely if the divided 113th Congress bore any resemblance to the unified government the American people voted for.

After his voter suppression tactics landed in him court several times in the lead-up to the 2012 elections, Ohio Secretary of State Jon Husted (R) proposed a new scheme to rig the 2012 elections. But following significant criticism for his idea to eliminate Ohio’s status as a swing state, he has backed off the idea.

Two days after the election, Husted said if the state wanted to avoid controversies like the ones he caused, it could change its laws to drop its winner-take-all status in presidential elections. Gov. Tom Corbett (R) and other Republicans in Pennsylvania had unsuccessfully proposed a similar scheme in 2011 to allocate electors based on who wins each gerrymandered Congressional district — and also found with significant opposition. Now, Husted is distancing himself from his own proposal.

In an interview with the Cincinnati Inquirer, Husted claimed his original remarks were “badly taken out of context” and that he does not intend to push such a change:

“My response was that as long as Ohio was a winner-take-all state and maybe the most important swing state in the country, there is no election system that won’t be controversial,” Husted said Wednesday. “I said if the sole goal was to make Ohio elections less controversial, you could fix redistricting so that districts are drawn fairly and more competitive, and then apportion our electoral votes according to congressional districts. That was just a comment, not a proposal.”

Husted added, “I’ve got enough on my plate that needs to be done. … This isn’t one of those things.” Just two small states — Maine and Nebraska — allocate their electors based on Congressional districts.

It is noteworthy that Husted — who fiercely opposed a ballot initiative to create a non-partisan redistricting process in Ohio — tacitly concedes that the Republican gerrymander of the state was not “drawn fairly.” Even though Ohioans voted to re-elect President Obama and Sen. Sherrod Brown (D) statewide, the party won 12 of the state’s 16 Congressional seats in this year’s general elections.

Although a small number of ballots remain to be counted, as of this writing, votes for a Democratic candidate for the House of Representatives outweigh votes for Republican candidates. Based on ThinkProgress’ review of all ballots counted so far, 53,952,240 votes were cast for a Democratic candidate for the House and only 53,402,643 were cast for a Republican — meaning that Democratic votes exceed Republican votes by more than half a million.

Two caveats are necessary in considering these numbers. The first is that all ballots have not been counted, so these numbers will change somewhat as more returns trickle in. (Because the remaining ballots are more likely to be from Democratic-leaning west coast states, it is likely that the Democrats’ margin will increase somewhat over time.) The second caveat is that these numbers include several California districts where two members of the same party ran against each other, and they do not include districts where a single candidate ran unopposed. Nevertheless, the fact remains that the nation is very closely divided over which party should control the House, with Democrats appearing to enjoy a slight edge.

The actual partisan breakdown of the 113th Congress will be very different, however. Currently, Republicans enjoy a 233-192 advantage over Democrats, with 10 seats remaining undecided. That means that, in a year when Republicans earned less than half the popular vote, they will control a little under 54 percent of the House even if Democrats run the table on the undecided seats.

There is a simple explanation for how this happened: Republicans won several key state legislatures and governors’ mansions in the election cycle before redistricting, and they gerrymandered those states within an inch of their lives. President Obama won Pennsylvania by more than 5 points, but Democrats carried only 5 of the state’s 18 congressional seats:

Similar stories played out elsewhere. Obama won Virginia, and Democrats took 3 of 11 House seats. Obama won Ohio, but Democrats carried only 4 of 16 seats in Ohio’s House delegation.

Speaker John Boehner (R-OH), however, cannot simply thank Republican state lawmakers for enabling him to keep his job. He can also thank the conservatives on the Supreme Court. Partisan gerrymandering exists for one purpose: to cut off the ability of people who disagree with a state’s ruling party to influence future elections. It is a a clear violation of the First Amendment, which absolutely prohibits viewpoint discrimination. Yet the Supreme Court abdicated its responsibility to end this discrimination in its 5-4 decision in Vieth v. Jubelirer, where the conservative justices tossed out a lawsuit alleging that Pennsylvania’s congressional districts were unconstitutionally drawn to maximize Republican representation in Congress.

Americans voted for a Democratic president, a Democratic Senate, and, barring significant shifts in the vote tally, a Democratic House. Instead, they will get a House majority similar to the one that held the entire nation hostage during last year’s debt ceiling hostage crisis. If the American people wanted this to happen, they would have said so at the polls on Tuesday. Instead, Republican state lawmakers took away their right to democratically legitimate leadership — with a big assist from the conservatives on the Supreme Court.

ThinkProgress intern Nate Niemann contributed to this report.

A panel of three federal judges has ruled that Texas’ redistricting plan violates the Voting Rights Act. Texas, because of its history of suppressing minority rights, must have any changes to its election law “pre-cleared” under Section 5 of the Voting Rights Act. D.C. Circuit Judge and George W. Bush appointee Thomas Griffith wrote the opinion, finding that all 3 redistricting plans dilute minority voting power by carving up minority-heavy congressional districts.

Texas’ normal deep red voting pattern was thrown into flux by the exploding population and rapidly shifting demographics in the state. According to the 2010 Census, Latinos comprised two-thirds of the 4.3 million new Texans, while 11 percent are black. Because of this dramatic population growth, Texas was given four more Congressional seats. But when the Republican-controlled Legislature redrew the congressional map to create the new districts, minority Congress members saw their offices carved out of their districts, while white Congress members retained theirs. Judge Griffith found that “substantial surgery” was done to predominantly black districts to cut them off from their representatives’ offices and their strongest fundraising bases, while the districts of white Congress members were either left untouched or were “redrawn to include particular country clubs and, in one case, the school belonging to the incumbent’s grandchildren.” Furthermore, black and Latino representatives were excluded from the map drawing process.

Texas claimed this disparate effect was pure coincidence, but the judges were unconvinced: “We are confident that the mapdrawers can not only draw maps but read them, and the locations of these district offices were not secret.”

The court was also deeply skeptical of the state’s claim that the chief mapdrawer had no idea he used racial data to draw district boundaries:

Texas made [Texas House Republican staffer Gerardo] Interiano’s testimony the cornerstone of its case on purpose in the House Plan. Interiano spent close to a thousand hours…training on the computer program Texas used for redistricting, yet testified that he did not know about the program’s help function, or of its capability to display racial data at the census block level…The implausibility of Interiano’s professed ignorance of these functions suggests that Texas had something to hide in the way it used racial data to draw district lines.

Though Judge Griffith’s opinion will not affect the 2012 race, the court’s finding that the map was drawn with a discriminatory purpose may come into play in the two challenges to the Voting Rights Act before the Supreme Court. The Texas Republicans’ antics in this case could be used as evidence that the jurisdictions covered by Section 5 do still discriminate racially through election law.

Yesterday Alabama filed suit in federal court asking for approval of the state’s redistricting plan. Alabama is one of nine states with a history of discrimination that the Voting Rights Act requires to get preclearance before making any changes to election procedures. Usually the states ask the Justice Department, but Alabama decided to go straight to federal court.

The suit asks a panel of the U.S. District Court in Washington, D.C. to declare that Alabama’s redistricing plan, approved by the legislature in May, does not deny or abridge the right to vote based on race or color. Alternatively, Alabama is asking the panel to decide that Section 5, the preclearance provision, of the VRA is unconstitutional.

Alabama and several other Southern states or counties need federal approval for election changes under the 1965 Voting Rights Act because of their histories of voter discrimination.

Thursday’s lawsuit from Alabama also takes aim at that requirement: If the court doesn’t grant a declaratory judgment, Alabama argues it should find the preclearance provision and its 2006 amendments unconstitutional.

Democrats in the legislature argue that the redistricting plan discriminates against voters of color in an attempt to favor Republicans.

Senate Minority Leader Roger Bedford, D-Russellville, said the attorney general’s office wants to avoid the justice department’s preclearance process because the Legislature “passed a racially gerrymandered plan.”

“It’s a ridiculous waste of taxpayer’s money,” Bedford said of the lawsuit. He said Republicans are trying to circumvent the way voting changes have been approved in Alabama for the last 40 years.

Section 5 was last upheld by the Supreme Cour in 2009, but was left in a precarious position by Chief Justice John Roberts’ majority decision. Roberts noted that Section 5 is a significant intrusion on state and local rights and responsibilities and concluded that the VRA itself now “raises serious constitutional questions.” Because some of the discriminatory conditions that originally necessitated the VRA have improved, the significant burdens imposed by preclearance requirements may no longer be justified.

Two challenges to the VRA have reached the Supreme Court and are expected to be taken up next term. There have been more challenges to the Voting Rights Act in the past two years than in the previous 45

–Alex Brown

As ThinkProgress previously explained, the state of Texas currently does not have any legally valid congressional maps. Because it gained four new congressional seats, it could not use its existing maps even if the Constitution would permit it to do so. The map drawn by the state legislature has not been “pre-cleared” as is required under the Voting Rights Act because of concerns that it discriminates on the basis of race, and an interim map drawn by federal judges in Texas was blocked by the Supreme Court late last year pending a more complete review of that interim map by the justices.

Many voting rights advocates feared that the conservative Supreme Court would use this case to make sweeping changes to the laws protecting voters, either by eliminating the judiciary’s authority to draw interim maps such as the ones at issue here or potentially even by striking down key parts of the Voting Rights Act. Fortunately, those fears proved unfounded this time around. The crux of their holding is that the lower court erred in drawing these particular maps because they did not treat the state legislature’s preferred maps as a baseline and depart from that baseline only when necessary to rescue the map from illegality:

In [the challenger's] view, this Court’s precedents require district courts to ignore any state plan that has not received §5 preclearance. But the cases upon which appellees rely hold only that a district court may not adopt an unprecleared plan as its own. They say nothing about whether a district court may take guidance from the lawful policies incorporated insuch a plan for aid in drawing an interim map. Indeed, in Upham this Court ordered a District Court to defer to the unobjectionable aspects of a State’s plan even though that plan had already been denied preclearance.

In this case, the District Court stated that it had “giv[en] effect to as much of the policy judgments in the Legislature’s enacted map as possible.” At the same time, however, the court said that it was required to draw an “independent map” following “neutral principles that advance the interest of the collective public good.” In the court’s view, it “was not required to give any deference to the Legislature’s enacted plan,” and it instead applied principles that it determined “place the interests of the citizens of Texas first.” To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of “the collective public good” for the Texas Legislature’s determination of which policies serve “the interests of the citizens of Texas,” the court erred.

The partisan upshot of this decision is that it is probably good news for Republicans. In an earlier case called Vieth v. Jubelirer, the Supreme Court largely abdicated oversight over politically motivated gerrymanders, thus enabling political parties to be as aggressive as they want in drawing maps that achieve their partisan goals. Because the Texas legislature is overwhelming dominated by Republicans, today’s decision requiring the lower court to use their map as the baseline in drawing an interim map will increase the likelihood that partisan gerrymandering intended to favor the GOP will remain present in the interim map the lower court eventually produces.