Apportionment and State Judiciaries

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Unfortunately, the Court cast aside Justice Frankfurter’s warning that judges should stay out of the apportionment controversy and let the democratic process resolve it. Where wise men feared to tread, the justices foolishly rushed in. In 1962, in Baker v. Carr, they decided that such issues were “justiciable,” after all. Two years later, in Reynolds v. Sims, they decided that the Equal Protection Clause of the Fourteenth Amendment supplied the solution. All legislative districts, whether congressional, state legislative, or local, had to be equal in population to be constitutional. The history of the Equal Protection Clause contains no evidence that the Congress or the states intended it to address this issue. Indeed, section two of that amendment addresses a very specific instance of representation, that is, a state’s representation would be reduced in the House of Representatives by the proportion that it denied its adult male citizens the right to vote on racial grounds. The framers of the amendment were fully aware of political representation, yet did not consider the Equal Protection Clause itself applicable broadly to representation or voting.

The Court cast the operative principle as “one man, one vote.” The cases most assuredly had nothing to do with voting. No one was denied the right to vote. Nor did one person’s vote count differently than that of the next person in line. What it came down to was that, in districts with unequal population, a voter in a larger district allegedly had his vote diluted in the legislature in comparison to a voter in a smaller district, because the former’s representative represented more residents than the latter’s. The Court ignored the fact that there was no logical connection between who could or could not vote and any particular system of representation.

Other difficulties with the Court’s opinion were that districts with equal numbers of residents might not have equal numbers of voters. In Evenwell v. Abbott, in 2016, the Court ruled that population equality is based on residents, not voters. Of course, this will result in vote dilution for those who vote in districts with many voters, compared to those who vote in equally-sized districts with many non-voters, such as children, prisoners, and aliens, legal or otherwise. Moreover, populations change over ten years, so any attempt to adhere slavishly to population equality is doomed to immediate failure, as districts change in relative size.

Why, then, did the Court decide to tilt at these constitutional windmills? The catalyst was the decades-long failure of certain mainly Southern states to reapportion their districts in violation of their own state constitutional requirements. This produced often significant discrepancies in population between small rural districts and populous urban areas, a trend exacerbated by the 20^th century’s technology-driven trend of urbanization. The Court viewed recourse to state constitutional conventions as too cumbersome. Since the delegates to those conventions were likely to be elected from those same malapportioned districts, they, like the legislatures, could not be counted on to challenge the existing system in a meaningful manner. Congressional interference with state districting would tread on thin constitutional ice and, in any case, was unlikely in light of the malapportionment of many congressional districts. The justices are drawn from a legal elite that shares many common outlooks, whatever their personal partisan affiliation. The common wisdom for that elite was that the existing systems exaggerated the influence of rural, socially and politically “unenlightened” residents and politicians, and constrained the economically, racially, and socially more progressive urban dwellers.

If the goal was to make the political environment reflect imagined urban progressivism, the results definitely have been inconclusive. The reapportionment cases, with their emphasis on population equality over everything, did break down the power of rural and small-town politicians and interests. In the South, they helped loosen the stranglehold of the Democratic Party that had produced the “Solid South” for over a century. But political power did not flow from the rural Democrats to the urban Democrats, as much as it did from the rural Democrats to the suburban Republicans. In non-Southern states, power similarly tended to flow to the expanding suburban areas, many of which did not share the mindset of the urban elites.

More significant in the long run was the “law of unintended consequences” manifesting itself in the guise of naked partisan gerrymandering. Going back to the country’s founding, most states apportioned one of their legislative chambers primarily on the basis of population and the other at least partially on other factors, such as county lines or city boundaries, much as the old Massachusetts and Virginia constitutions had done. In many states, the latter had been used for the lower, more numerous house. In contrast, more recent apportionment plans, as in California and Colorado, had followed the “federal model” and used population for the more numerous house and allowed political boundaries as a significant factor to apportion the less numerous upper legislative chamber.

The Court rejected both systems in Reynolds. As to the “federal model,” the Court argued that the Constitution was a compromise among sovereign states. However, the states’ political sovereignty did not extend to deciding how to govern themselves internally, because the cities and counties were not themselves sovereign actors, but mere creatures of the states. The same day as Reynolds, in Lucas v. 44^th General Assembly of Colorado, the Court used the same reasoning to strike down a recent reapportionment of the Colorado legislature, approved by a significant majority of voters in every legislative district in the state. The Court’s objection was that the political majority might elect the governor and the lower house of the legislature, but it would take two-thirds of the population in the most populous districts to elect a majority of the upper house. The purpose of the Colorado system was to give some political influence to the residents in the large areas of Colorado not within fifty miles of the intersection of I-25 and I-70 and the city of Denver. The Court was unmoved by the fact that Colorado’s urban and suburban residents had themselves voted in favor of the plan, and that the voters had also overwhelmingly rejected a proposal that incorporated the system the Court eventually imposed. If even one voter’s vote was diluted, the Court declared, a constitutional violation had occurred.

In subsequent decisions, the Court softened its numerical rigidity somewhat. For congressional districts, under Karcher v. Dagett (1983), any deviation from absolute equality will be strictly scrutinized. For internal state legislative districts and for local districts, however, the Court decided in Mahan v. Howell (1973) that only “substantial equality” is needed, with deviations up to 20% from an ideal equality among districts being acceptable.

But the damage is done. By severely curtailing the ability of states to consider factors other than population, the Court removed the constraints on the one apportionment tool that coexists comfortably with population equality, the partisan gerrymander. When apportionment had to occur within set political boundaries, partisan considerations were blunted. Moreover, population movements and new political issues could change the partisan composition of a district. Politicians more likely had to moderate ideological predispositions and be less rigidly partisan. When preexisting district lines are meaningless and the quest for numbers is paramount, districts are drawn to maximize partisan advantage. Using computerized data and statistical formulae, apportionment experts create “safe” districts to maximize the majority party’s advantage well beyond their share of voter registration. For example, in California, Democrats have 46 congressional seats, Republicans 7, even though the Republican share of the vote in California is around 38%. Based on percentages, the Republicans should have had an additional 13 seats. These safe seats are won during primaries by the most militant candidate appealing to the party’s ideologically committed base. The winners then become difficult to dislodge and serve many terms, thereby putting them in legislative leadership roles.

Many observers have mourned the increased partisanship and hardening of ideological lines facilitated at least in part by the representational paradigm of population equality. At the state level, longevity of service is restrained by term limits, but ideological militancy is not. A final chapter may be emerging in the Supreme Court’s apportionment experiment. So far, the Court has avoided tackling partisan gerrymandering. However, the justices served notice in Davis v. Bandemer (1986) that such gerrymandering might violate the Constitution if it resulted in systematic and continuous exclusion of a party from political power. The justices could not agree on a specific standard to determine whether such an injury had occurred. In Vieth v. Jubelirer (2004), a plurality led by Justice Antonin Scalia found such cases to be non-justiciable, precisely because courts had not been able to discover any constitutional standard to apply in political gerrymandering claims. The intensely and inherently political nature of partisan gerrymandering and the many nuanced shapes it can take makes this a very difficult area for judicial resolution. However, the recent case of Gill v. Whitford (2018) and current litigation involving partisan gerrymandering in Maryland suggest that the judiciary’s struggle to extricate itself from the political issues that infuse partisan gerrymandering continues.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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