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CRS Annotated Constitution

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ARTICLE I
LEGISLATIVE DEPARTMENT

Section 2. Clause 1. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.[p.106]

CONGRESSIONAL DISTRICTING

A major innovation in constitutional law in recent years has been the development of a requirement that election districts in each State be so structured that each elected representative should represent substantially equal populations.251 While this requirement has generally been gleaned from the equal protection clause of the Fourteenth Amendment,252 in Wesberry v. Sanders,253 the Court held that “construed in its historical context, the command of Art. 1, Sec. 2, that Representatives be chosen ‘by the People of the several States’ means that as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.”254

Court involvement in this issue developed slowly. In our early history, state congressional delegations were generally elected at–large instead of by districts and even when Congress required single–member districting255 and later added a provision for equally populated districts256 the relief sought by voters was action by the House refusing to seat Members–elect selected under systems not in compliance with the federal laws.257 The first series of cases did not reach the Supreme Court, in fact, until the States began redistricting through the 1930 Census, and these were resolved without reaching constitutional issues and indeed without resolving the issue whether such voter complaints were justiciable at all.258 In the late 1940s and the early 1950s, the Court utilized the “political[p.107]question” doctrine to decline to adjudicate districting and apportionment suits, a position changed in Baker v. Carr.259

For the Court in Wesberry,260 Justice Black argued that a reading of the debates of the Constitutional Convention conclusively demonstrated that the Framers had meant, in using the phrase “by the People,” to guarantee equality of representation in the election of Members of the House of Representatives.261 Justice Harlan in dissent argued contrarily that the statements relied on by the majority had uniformly been in the context of the Great Compromise—Senate representation of the States with Members elected by the state legislatures, House representation according to the population of the States, qualified by the guarantee of at least one Member per State and the counting of slaves as three–fifths of persons—and not at all in the context of intrastate districting. Further, he thought the Convention debates clear to the effect that Article I, Sec. 4, had vested exclusive control over state districting practices in Congress and that the Court action overrode a congressional decision not to require equally– populated districts.262

The most important issue, of course, was how strict a standard of equality the Court would adhere to. At first, the Justices seemed inclined to some form of de minimis rule with a requirement that the State present a principled justification for the deviations from equality which any districting plan presented.263 But in Kirkpatrick v. Preisler,264 a sharply divided Court announced the rule that a State must make a “good–faith effort to achieve precise mathematical equality.”265 Therefore, “[u]nless population variances among congressional districts are shown to have resulted despite such [good– faith] effort [to achieve precise mathematical equality], the State must justify each variance, no matter how small.”266 The strictness of the test was revealed not only by the phrasing of the test but by the fact that the majority rejected every proffer of a justification which the State had made and which could likely be made. Thus, it was not an adequate justification that deviations resulted from (1) an effort to draw districts to maintain in[p.108]tact areas with distinct economic and social interests,267 (2) the requirements of legislative compromise,268 (3) a desire to maintain the integrity of political subdivision lines,269 (4) the exclusion from total population figures of certain military personnel and students not residents of the areas in which they were found,270 (5) an attempt to compensate for population shifts since the last census,271 or (6) an effort to achieve geographical compactness.272

Illustrating the strictness of the standard, the Court upheld a lower court voiding of a Texas congressional districting plan in which the population difference between the most and least populous districts was 19,275 persons and the average deviation from the ideally populated district was 3,421 persons.273 Adhering to the principle of strict population equality in a subsequent case, the Court refused to find valid a plan simply because the variations were smaller than the estimated census undercount. Rejecting the plan, the difference in population between the most and least populous districts being 3,674 people, in a State in which the average district population was 526,059 people, the Court opined that, given rapid advances in computer technology, it is now “relatively simple to draw contiguous districts of equal population and at the same time . . . further whatever secondary goals the State has.”274

Attacks on partisan gerrymandering have proceeded under equal– protection analysis, and, while the Court has held justiciable claims based on claims of denial of effective representation, the standards are so high neither voters nor minority parties have yet benefitted from the development.275


Footnotes

251 The phrase “one person, one vote” which came out of this litigation might well seem to refer to election districts drawn to contain equal numbers of voters rather than equal numbers of persons. But it seems clear from a consideration of all the Court’s opinions and the results of its rulings that the statement in the text accurately reflects the constitutional requirement. The case expressly holding that total population, or the exclusion only of transients, is the standard is Burns v. Richardson, 384 U.S. 73 (1966), a legislative apportionment case. Notice that considerable population disparities exist from State to State, as a result of the requirement that each State receive at least one Member and the fact that state lines cannot be crossed in districting. At least under present circumstances, these disparities do not violate the Constitution. U.S. Department of Commerce v. Montana, 112S.Ct.1415 (1992).
252 Reynolds v. Sims, 377 U.S. 533 (1964) (legislative apportionment and districting); Hadley v. Junior College District, 397 U.S. 50 (1970) (local governmental units).
253 376 U.S. 1 (1964). See also Martin v. Bush, 376 U.S. 222 (1964).
254 376 U.S., 7.
255 Act of June 25, 1842, 5 Stat. 491 .
256 Act of February 2, 1872, 17 Stat. 28 .
257 The House uniformly refused to grant any such relief. 1 A. Hinds’ Precedents of the House of Representatives (Washington: 1907), 310. See L. Schmeckebier, Congressional Apportionment (Washington: 1941), 135–138.
258 Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932); Wood v. Broom, 287 U.S. 1 (1932); Mahan v. Hume, 287 U.S. 575 (1932).
259 369 U.S. 186 (1962).
260 Wesberry v. Sanders, 376 U.S. 1 (1964).
261 Id., 7–18.
262 Id., 20–49.
263 Kirkpatrick v. Preisler, 385 U.S. 450 (1967), and Duddleston v. Grills, 385 U.S. 455 (1967), relying on the rule set out in Swann v. Adams, 385 U.S. 440 (1967), a state legislative case.
264 394 U.S. 526 (1969). See also Wells v. Rockefeller, 394 U.S. 542 (1969).
265 Kirkpatrick v. Preisler, 394 U.S. 526, 530 (1969).
266 Id., 531.
267 Id., 533. People vote as individuals, Justice Brennan said for the Court, and it is the equality of individual voters that is protected.
268 Ibid. Political “practicality” may not interfere with a rule of “practicable” equality.
269 Id., 533–534. The argument is not “legally acceptable.”
270 Id., 534–535. Justice Brennan questioned whether anything less than a total population basis was permissible but noted that the legislature in any event had made no consistent application of the rationale.
271 Id., 535. This justification would be acceptable if an attempt to establish shifts with reasonable accuracy had been made.
272 Id., 536. Justifications based upon “the unaesthetic appearance” of the map will not be accepted.
273 White v. Weiser, 412 U.S. 783 (1973). The Court did set aside the district court’s own plan for districting, instructing that court to adhere more closely to the legislature’s own plan insofar as it reflected permissible goals of the legislators, reflecting an ongoing deference in legislatures in this area to the extent possible.
274 Karcher v. Daggett, 462 U.S. 725 (1983). Illustrating the point about computer–generated plans containing absolute population equality is Hastert v. State Board of Elections, 777 F.Supp. 634 (N.D.Ill. 1991) (three–judge court), in which the court adopted a congressional–districting plan in which 18 of the 20 districts had 571,530 people each and each of the other two had 571,531 people.
275 The principal case was Davis v. Bandemer, 478 U.S. 109 (1986), a legislative apportionment case, but no doubt should exist that congressional districting is covered. See Badham v. Eu, 694 F.Supp. 664 (N.D.Calif.) (three–judge court) (adjudicating partisan gerrymandering claim as to congressional districts but deciding against plaintiffs on merits), affd., 488 U.S. 1024 (1988); Pope v. Blue, 809 F.Supp. 392 (W.D.N.C.) (three–judge court) (same), affd, 113S.Ct.650 (1992).
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