CRS Annotated Constitution

Fourteenth Amendment -- Table of Contents

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[p.1902]

Apportionment and Districting.—Prior to 1962, attacks in federal courts on the drawing of boundaries for congressional and legislative election districts or the apportionment of seats to previously existing units ran afoul of the “political question” doctrine.139 But Baker v. Carr140 reinterpreted the doctrine in considerable degree and opened the federal courts to voter complaints founded on unequally populated voting districts. Wesberry v. Sanders141 found in Article I, Sec. 2, of the Constitution a command that in the election of Members of the House of Representatives districts were to be made up of substantially equal numbers of persons. In six decisions handed down on June 15, 1964, the Court required the alteration of the election districts for practically all the legislative bodies in the United States.142

“We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with the votes of citizens living in other parts of the State.”143 What was required was that each[p.1903]State “make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.”144

Among the principal issues raised by these decisions were which units were covered by the principle, to what degree of exactness population equality had to be achieved, and to what other elements of the apportionment and districting process the equal protection clause extended.

The first issue has largely been resolved, although some few problem areas persist. It has been held that a school board the members of which were appointed by boards elected in units of disparate populations and which exercised only administrative powers rather than legislative powers was not subject to the principle of the apportionment ruling.145 Avery v. Midland County146 held that when a State delegates lawmaking power to local government and provides for the election by district of the officials to whom the power is delegated, the districts must be established of substantially equal populations. But in Hadley v. Junior College District,147 the Court abandoned much of the limitation which was explicit in these two decisions and held that whenever a State chooses to vest “governmental functions” in a body and to elect the members of that body from districts, the districts must have substantially equal populations. The “governmental functions” should not be characterized as “legislative” or “administrative” or necessarily important or unimportant; it is the fact that members of the body are elected from districts which triggers the application.148

[p.1904]

The second issue has been largely but not precisely resolved. In Swann v. Adams,149 the Court set aside a lower court ruling “for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts. . . . De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be approved without a satisfactory explanation grounded on acceptable state policy.” Two congressional district cases were disposed of on the basis of Swann,150 but when the Court ruled that no congressional districting could be approved without a “good–faith effort to achieve precise mathematical equality” or the justification of “each variance, no matter how small,151 it did not then purport to utilize this standard in judging legislative apportionment and districting.152 And in Abate v. Mundt153 the Court approved a plan for apportioning a county governing body which permitted a substantial population disparity, explaining that in the absence of a built–in bias tending to favor any particular area or interest, a plan could take account of localized factors in justifying deviations from equality which might in other circumstances cause the invalidation of a plan.154 The total population deviation allowed in Abate was 11.9%; the Court refused,[p.1905]however, to extend Abate to approve a total deviation of 78% resulting from an apportionment plan providing for representation of each of New York City’s five boroughs on the New York City Board of Estimate.155

Nine years after Reynolds v. Sims, the Court reexamined the population equality requirement of the apportionment cases. Relying upon language in prior decisions that distinguished legislative apportionment from congressional districting as possibly justifying different standards of permissible deviations from equality, the Court held that more flexibility is constitutionally permissible with respect to the former than to the latter.156 But it was in determining how much greater flexibility was permissible that the Court moved in new directions. First, applying the traditional standard of rationality rather than the strict test of compelling necessity, the Court held that a maximum 16.4% deviation from equality of population was justified by the State’s policy of maintaining the integrity of political subdivision lines, or according representation to subdivisions qua subdivisions, because the legislature was responsible for much local legislation.157 Second, just as the first case “demonstrates, population deviations among districts may be sufficiently large to require justification but nonetheless be justified and legally sustainable. It is now time to recognize . . . that minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious[p.1906]discrimination under the Fourteenth Amendment so as to require justification by the State.”158 This recognition of a de minimis deviation, below which no justification was necessary, was mandated, the Court felt, by the margin of error in census statistics, by the population change over the ten–year life of an apportionment, and by the relief it afforded federal courts able thus to avoid over–involvement in essentially a political process. The “goal of fair and effective representation” is furthered by eliminating gross population variations among districts, but it is not achieved by mathematical equality solely. Other relevant factors are to be taken into account.159 But when a judicially–imposed plan is to be formulated upon state default, it “must ordinarily achieve the goal of population equality with little more than de minimis variation” and deviations from approximate population equality must be supported by enunciation of historically significant state policy or unique features.160

Gerrymandering and the permissible use of multimember districts present examples of the third major issue. It is clear that racially based gerrymandering is unconstitutional under the Fifteenth Amendment, at least when it is accomplished through the manipulation of district lines.161

Partisan gerrymandering raised more difficult issues. Several lower courts ruled that the issue was beyond judicial cognizance,162 and the Supreme Court itself, upholding an apportionment plan frankly admitted to have been drawn with the intent to achieve a rough approximation of the[p.1907]statewide political strengths of the two parties, recognized the goal as legitimate and observed that, while the manipulation of apportionment and districting is not wholly immune from judicial scrutiny, “we have not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States.”163

More recently, however, in a decision of potentially major import reminiscent of Baker v. Carr, the Court in Davis v. Bandemer164 ruled that partisan gerrymandering in state legislative redistricting is justiciable under the Equal Protection Clause. But although the vote was 6 to 3 in favor of justiciability, a majority of Justices could not agree on the proper test for determining whether particular gerrymandering is unconstitutional, and the lower court’s holding of unconstitutionality was reversed by vote of 7 to 2.165 Thus, while courthouse doors are now ajar for claims of partisan gerrymandering, it is unclear what it will take to succeed on the merits. On the justiciability issue, the Court viewed the “political question” criteria as no more applicable than they had been in Baker v. Carr. Because Reynolds v. Sims had declared “fair and effective representation for all citizens”166 to be “the basic aim of legislative apportionment,” and because racial gerrymandering issues had been treated as justiciable, the Court viewed the representational issues raised by partisan gerrymandering as indistinguishable. Agreement as to the existence of “judicially discoverable and manageable standards for resolving” gerrymandering issues, however, did not result in a consensus as to what those standards are.167 While a majority of Justices agreed that discriminatory ef[p.1908]fect as well as discriminatory intent must be shown, there was significant disagreement as to what constitutes discriminatory effect. Justice White’s plurality opinion suggested that there need be “evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.”168 Moreover, continued frustration of the chance to influence the political process can not be demonstrated by the results of only one election; there must be a history of disproportionate results or a finding that such results will continue. Justice Powell, joined by Justice Stevens, did not formulate a strict test, but suggested that “a heavy burden of proof” should be required, and that courts should look to a variety of factors as they relate to “the fairness of a redistricting plan” in determining whether it contains invalid gerrymandering. Among these factors are the shapes of the districts, adherence to established subdivision lines, statistics relating to vote dilution, the nature of the legislative process by which the plan was formulated, and evidence of intent revealed in legislative history.169

It had been thought that the use of multimember districts to submerge racial, ethnic, and political minorities might be treated differently,170 but in Whitcomb v. Chavis171 the Court, while dealing with the issue on the merits, so enveloped it in strict standards of proof and definitional analysis as to raise the possibility that it might be beyond judicial review.

In Chavis the Court held that inasmuch as the multimember districting represented a state policy of more than 100 years observance and could not therefore be said to be motivated by racial or political bias, only an actual showing that the multimember delegation in fact inadequately represented the allegedly submerged minority would suffice to raise a constitutional question. But the Court also rejected as impermissible the argument that any interest group had any sort of right to be represented in a legislative body, in proportion to its members’ numbers or on some other basis, so that the failure of that group to elect anyone merely meant that alone or in combination with other groups it simply lacked the strength to obtain enough votes, whether the election be[p.1909]in single–member or in multimember districts. That fact of life was not of constitutional dimension, whether the group was composed of blacks, or Republicans or Democrats, or some other category of persons. Thus, the submerging argument was rejected, as was the argument of a voter in another county that the Court should require uniform single–member districting in populous counties because voters in counties which elected large delegations in blocs had in effect greater voting power than voters in other districts; this argument the Court found too theoretical and too far removed from the actualities of political life.

Subsequently, and surprisingly in light of Chavis, the Court in White v. Regester172 affirmed a district court invalidation of the use of multimember districts in two Texas counties on the ground that, when considered in the totality of the circumstances of discrimination in registration and voting and in access to other political opportunities, such use denied African Americans and Mexican Americans the opportunity to participate in the election process in a reliable and meaningful manner.173

Doubt was cast on the continuing vitality of White v. Regester, however, by the badly split opinion of the Court in City of Mobile v. Bolden.174 A plurality undermined the earlier case in two respects, although it is not at all clear that a majority of the Court had been or could be assembled on either point. First, the plurality argued that an intent to discriminate on the part of the redistricting body must be shown before multimember districting can be held to violate the equal protection clause.175 Second, the plurality read White v. Regester as being consistent with this principle and the various factors developed in that case to demonstrate the existence of unconstitutional discrimination to be in fact indicia of intent; however, the plurality seemingly disregarded the totality of[p.1910]circumstances test utilized in Regester and evaluated instead whether each factor alone was sufficient proof of intent.176

Again switching course, the Court in Rogers v. Lodge177 approved the findings of the lower courts that a multimember electoral system for electing a county board of commissioners was being maintained for a racially discriminatory purpose, although it had not been instituted for that purpose. Applying a totality of the circumstances test, and deferring to lower court factfinding, the Court, in an opinion by one of the Mobile dissenters, canvassed a range of factors which it held could combine to show a discriminatory motive, and largely overturned the limitations which the Mobile plurality had attempted to impose in this area. With the enactment of federal legislation specifically addressed to the issue of multimember districting and dilution of the votes of racial minorities, however, it may be that the Court will have little further opportunity to develop the matter in the context of constitutional litigation.178 In Thornburg v. Gingles,179 the Court held that multimember districting violates Sec. 2 of the Voting Rights Act by diluting the voting power of a racial minority when that minority is “sufficiently large and geographically compact to constitute a majority in a single–member district,” when it is politically cohesive, and when block voting by the majority “usually” defeats preferred candidates of the minority.

Finally, it should be said that the Court has approved the discretionary exercise of equity powers by the lower federal courts in drawing district boundaries and granting other relief in districting and apportionment cases,180 although that power is bounded by[p.1911]the constitutional violations found, so that courts do not have carte blanche, and they should ordinarily respect the structural decisions made by state legislatures and the state constitutions.181

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Fourteenth Amendment -- Table of Contents

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