Dillution of the Right to Vote: General Approach

U.S. Constitution Annotated

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Prior to 1962, attacks in federal courts on the drawing of boundaries for congressional1 and legislative election districts or the apportionment of seats to previously existing units ran afoul of the “political question” doctrine.2 ; Colegrove v. Barrett, 330 U.S. 804 (1947); MacDougall v. Green, 335 U.S. 281 (1948); South v. Peters, 339 U.S. 276 (1950); Hartsfield v. Sloan, 357 U.S. 916 (1958). Baker v. Carr,3 however, reinterpreted the doctrine to a considerable degree and opened the federal courts to voter complaints founded on unequally populated voting districts. Wesberry v. Sanders4 found that Article I, § 2, of the Constitution required 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.5

“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.” 6 What was required was that each 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.” 7

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 a 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 that exercised only administrative powers rather than legislative powers, was not subject to the principle of the apportionment ruling.8 Avery v. Midland County9 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,10 the Court abandoned much of the limitation that 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 that triggers the application.11

The second issue has been largely but not precisely resolved. In Swann v. Adams,12 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 districting cases were disposed of on the basis of Swann,13 but, although 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,” 14 it did not apply this strict standard to state legislative redistricting.15 And, in Abate v. Mundt,16 the Court approved a plan for apportioning a county governing body that 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 that might in other circumstances invalidate a plan.17 The total population deviation allowed in Abate was 11.9%; the Court refused, 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.18

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 state 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.19 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.20 (vacating and remanding for further consideration the approval of a 19.4% deviation). But see Voinovich v. Quilter, 507 U.S. 146 (1993) (vacating and remanding for further consideration the rejection of a deviation in excess of 10% intended to preserve political subdivision boundaries). In Brown v. Thomson, 462 U.S. 835 (1983), the Court held that a consistent state policy assuring each county at least one representative can justify substantial deviation from population equality when only the marginal impact of representation for the state’s least populous county was challenged (the effect on plaintiffs, voters in larger districts, was that they would elect 28 of 64 members rather than 28 of 63), but there was indication in Justice O’Connor’s concurring opinion that a broader-based challenge to the plan, which contained a 16% average deviation and an 89% maximum deviation, could have succeeded. Second, just as the first case “demonstrates, population deviations among districts may be sufficiently large to require justification but nonetheless be justifiable 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 discrimination under the Fourteenth Amendment so as to require justification by the State.” 21 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 by enabling them 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.22 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.23

Subsequently, in its 2016 decision in Harris v. Arizona Independent Redistricting Commission, the Court reiterated the significance of the 10% threshold in challenges to state legislative voting districts, observing that “attacks on deviations under 10% will succeed only rarely, in unusual cases.” 24 Instead, challengers must show that it is “more probable than not” that the deviation “reflects the predominance of illegitimate reapportionment factors rather than . . . legitimate considerations.” 25 The Court unanimously agreed that the challengers in Harris had failed to meet this burden, as the record supported the district court’s conclusion that the deviation here—which was 8.8%—reflected the redistricting commission’s efforts to achieve compliance with the Voting Rights Act, and not to secure political advantage for the Democratic party.26 In particular, the Court noted that the difference in population between Democratic- and Republican-leaning districts may simply reflect the residential and voting patterns of minorities, and the redistricting commission’s efforts to maintain “ability-to-elect districts” (i.e., districts favorable to the election of minority candidates).27 In the Court’s view, there was no showing of “illegitimate factors” here, unlike in certain earlier cases (e.g., the creation of districts that seem to have no relation to keeping counties whole or preserving the cores of prior districts).28 The Court further noted that its decision in Shelby County v. Holder,29 which held unconstitutional a section of the Voting Rights Act relevant to this case, did not mean that Arizona’s attempt to comply with the Act could not have been a legitimate state interest, as Arizona created the plan at issue in 2010, and Shelby County was not decided until 2013.30

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.31 Even if racial gerrymandering is intended to benefit minority voting populations, it is subject to strict scrutiny under the Equal Protection Clause32 if “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” 33 A challenger can show racial predominance by “demonstrating that the legislature ‘subordinated’ other factors—compactness, respect for political subdivisions, partisan advantage, what have you—to 'racial considerations.'” 34 Showing that a district’s “bizarre” shape departs from traditional districting principles such as compactness, contiguity, and respect for political subdivision lines may serve to reinforce such a claim,35 although a plurality of the Justices would not preclude the creation of “reasonably compact” majority-minority districts in order to remedy past discrimination or to comply with the requirements of the Voting Rights Act of 1965.36 While the Court appeared to have weakened a challenger’s ability to establish equal protection claims in the early 2000s by deferring to a legislature’s articulation of legitimate political explanations for districting decisions, and by allowing for a correlation between race and political affiliation,37 more recent cases have shown such challenges are not entirely foreclosed.38

1: This subject is also discussed under Article I, Section 2, Congressional Districting.
2: See discussion, supra. Applicability of the doctrine to cases of this nature was left unresolved in Smiley v. Holm, 285 U.S. 355 (1932), and Wood v. Broom, 287 U.S. 1 (1932), was supported by only a plurality in Colegrove v. Green, 328 U.S. 549 (1946), but became the position of the Court in subsequent cases. Cook v. Fortson, 329 U.S. 675 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947); MacDougall v. Green, 335 U.S. 281 (1948); South v. Peters, 339 U.S. 276 (1950); Hartsfield v. Sloan, 357 U.S. 916 (1958).
3: 369 U.S. 186 (1962).
4: 376 U.S. 1 (1964). Striking down a county unit system of electing a governor, the Court, in an opinion by Justice Douglas, had already coined a variant phrase of the more popular “one man, one vote.” “The conception of political equality from the Declaration of Independence to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.” Gray v. Sanders, 372 U.S. 368, 381 (1963).
5: Reynolds v. Sims, 377 U.S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656 (1964); Donis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964). In the last case, the Court held that approval of the apportionment plan in a vote of the people was insufficient to preserve it from constitutional attack. “An individual’s constitutionally protected right to cast an equally weighed vote cannot be denied even by a vote of a majority of a State’s electorate, if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause.” Id. at 736. In Reynolds v. Sims, Justice Harlan dissented wholly, denying that the Equal Protection Clause had any application at all to apportionment and districting and contending that the decisions were actually the result of a “reformist” nonjudicial attitude on the part of the Court. 377 U.S. at 589. Justices Stewart and Clark dissented in two and concurred in four cases on the basis of their view that the Equal Protection Clause was satisfied by a plan that was rational and that did not systematically frustrate the majority will. 377 U.S. at 741, 744.
6: Reynolds v. Sims, 377 U.S. 533, 568 (1964).
7: 377 U.S. at 577.
8: Sailors v. Board of Education, 387 U.S. 105 (1967).
9: 390 U.S. 474 (1968). Justice Harlan continued his dissent from the Reynolds line of cases, id. at 486, while Justices Fortas and Stewart called for a more discerning application and would not have applied the principle to the county council here. Id. at 495, 509.
10: 397 U.S. 50 (1970). The governmental body here was the board of trustees of a junior college district. Justices Harlan and Stewart and Chief Justice Burger dissented. Id. at 59, 70.
11: The Court observed that there might be instances “in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds, supra, might not be required . . . .” 397 U.S. at 56. For cases involving such units, see Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973); Associated Enterprises v. Toltec Watershed Imp. Dist., 410 U.S. 743 (1973); Ball v. James, 451 U.S. 355 (1981). Judicial districts need not comply with Reynolds. Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) (three-judge court), aff’d per curiam, 409 U.S. 1095 (1973).
12: 385 U.S. 440, 443–44 (1967). See also Kilgarlin v. Hill, 386 U.S. 120 (1967).
13: Kirkpatrick v. Preisler, 385 U.S. 450 (1967); Duddleston v. Grills, 385 U.S. 455 (1967).
14: Kirkpatrick v. Preisler, 394 U.S. 526, 530–31 (1969); Wells v. Rockefeller, 394 U.S. 542 (1969). The Court has continued to adhere to this strict standard for congressional districting, voiding a plan in which the maximum deviation between largest and smallest district was 0.7%, or 3,674 persons. Karcher v. Daggett, 462 U.S. 725 (1983) (rejecting assertion that deviations less than estimated census error are necessarily permissible).
15: The Court relied on Swann in disapproving of only slightly smaller deviations (roughly 28% and 25%) in Whitcomb v. Chavis, 403 U.S. 124, 161–63 (1971). In Connor v. Williams, 404 U.S. 549, 550 (1972), the Court said of plaintiffs’ reliance on Preisler and Wells that “these decisions do not squarely control the instant appeal since they do not concern state legislative apportionment, but they do raise substantial questions concerning the constitutionality of the District Court’s plan as a design for permanent apportionment.”
16: 403 U.S. 182 (1971).
17: In Evenwel v. Abbott, a case involving representation in the state legislature, the Court rejected the argument that the Equal Protection Clause prohibits states from using total population in determining voting districts and instead requires the use of the voting population. 136 S. Ct. 1120 (2016). The Court based its conclusion here, in part, on the debates over representation in the U.S. House and Senate at the time of the Constitution’s framing, as well as subsequent debates over the Fourteenth Amendment at the time of its ratification. Id. at 1127–29. The Court also noted prior decisions focusing on “equality of representation,” and not “voter equality,” id. at 1131, and the settled practices of all fifty states and “countless local jurisdictions” in apportioning representation based on total population. Id. at 1132. It is important to note, however, that the Evenwel Court declined to find that apportionment based on total population is constitutionally required, and the Court has, in other cases, upheld the use of districts based on voting population. See Burns v. Richardson, 384 U.S. 73 73, 93–94 (1966) (rejecting a challenge to Hawaii’s use of the registered-voter population).
18: New York City Bd. of Estimate v. Morris, 489 U.S. 688 (1989). Under the plan each of the City’s five boroughs was represented on the board by its president and each of these members had one vote; three citywide elected officials (the mayor, the comptroller, and the president of the city council) were also placed on the board and given two votes apiece (except that the mayor had no vote on the acceptance or modification of his budget proposal). The Court also ruled that, when measuring population deviation for a plan that mixes at-large and district representation, the at-large representation must be taken into account. Id. at 699–701.
19: Mahan v. Howell, 410 U.S. 315, 320–25 (1973).
20: 410 U.S. at 325–30. The Court indicated that a 16.4% deviation “may well approach tolerable limits.” Id. at 329. Dissenting, Justices Brennan, Douglas, and Marshall would have voided the plan; additionally, they thought the deviation was actually 23.6% and that the plan discriminated geographically against one section of the state, an issue not addressed by the Court. In Chapman v. Meier, 420 U.S. 1, 21–26 (1975), holding that a 20% variation in a court-developed plan was not justified, the Court indicated that such a deviation in a legislatively-produced plan would be quite difficult to justify. See also Summers v. Cenarrusa, 413 U.S. 906 (1973) (vacating and remanding for further consideration the approval of a 19.4% deviation). But see Voinovich v. Quilter, 507 U.S. 146 (1993) (vacating and remanding for further consideration the rejection of a deviation in excess of 10% intended to preserve political subdivision boundaries). In Brown v. Thomson, 462 U.S. 835 (1983), the Court held that a consistent state policy assuring each county at least one representative can justify substantial deviation from population equality when only the marginal impact of representation for the state’s least populous county was challenged (the effect on plaintiffs, voters in larger districts, was that they would elect 28 of 64 members rather than 28 of 63), but there was indication in Justice O’Connor’s concurring opinion that a broader-based challenge to the plan, which contained a 16% average deviation and an 89% maximum deviation, could have succeeded.
21: Gaffney v. Cummings, 412 U.S. 735, 745 (1973). The maximum deviation was 7.83%. The Court did not precisely indicate at what point a deviation had to be justified, but it applied the de minimis standard in White v. Regester, 412 U.S. 755 (1973), in which the maximum deviation was 9.9%. “Very likely, larger differences between districts would not be tolerable without justification . . . .” Id. at 764. Justices Brennan, Douglas, and Marshall dissented. See also Brown v. Thomson, 462 U.S. 835, 842 (1983): “Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within [the] category of minor deviations [insufficient to make out a prima facie case].”
22: Gaffney v. Cummings, 412 U.S. 735, 748 (1973). By contrast, the Court has held that estimated margin of error for census statistics does not justify deviation from population equality in congressional districting. Karcher v. Daggett, 462 U.S. 725 (1983).
23: Chapman v. Meier, 420 U.S. 1, 27 (1975). The Court did say that court-ordered reapportionment of a state legislature need not attain the mathematical preciseness required for congressional redistricting. Id. at 27 n.19. Apparently, therefore, the Court’s reference to both “de minimis” variations and “approximate population equality” must be read as referring to some range approximating the Gaffney principle. See also Connor v. Finch, 431 U.S. 407 (1977).
24: 136 S. Ct. 1301, 1307 (2016). See also id. (noting the “inherent difficulties” of measuring and comparing factors that may legitimately account for small deviations from strict mathematical equality).
25: Id. at 1304.
26: See id. at 1307–09.
27: Id. at 1309–10.
28: Id. at 1310.
29: 570 U.S. 529 (2013).
30: See 136 S. Ct. 1301, 1310 (2016).
31: Gomillion v. Lightfoot, 364 U.S. 339 (1960); Wright v. Rockefeller, 376 U.S. 52 (1964); Sims v. Baggett, 247 F. Supp. 96 (M.D. Ala. 1965) (three-judge court). Hunt v. Cromartie, 526 U.S. 541 (1999).
32: See Abbott v. Perez, 138 S. Ct. 2305, 2314 (2018) ( “The Equal Protection Clause forbids 'racial gerrymandering,' that is, intentionally assigning citizens to a district on the basis of race without sufficient justification.” (quoting Shaw v. Reno, 509 U.S. 630, 641 (1993))).
33: Miller v. Johnson, 515 U.S. 900, 916 (1995); see also Shaw v. Hunt, 517 U.S. 899, 904–05 (1996). Furthermore, in determining whether racial criteria predominate in the drawing of a district, the Court has noted that the determination must be made with respect to a specific electoral district, as opposed to a state as an undifferentiated whole. See Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015).
34: Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017) (quoting Miller, 515 U.S. at 916).
35: Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Reno, 509 U.S. 630 (1993). See also Shaw v. Hunt, 517 U.S. 899 (1996) (creating an unconventionally-shaped majority-minority congressional district in one portion of state in order to alleviate effect of fragmenting geographically compact minority population in another portion of state does not remedy a violation of § 2 of Voting Rights Act, and is thus not a compelling governmental interest). Moreover, in discussing a challenger’s reliance on the “bizarreness” of a district’s shape, the Court has cautioned that “[t]he Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.” Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 792 (2017) (holding that racial considerations predominated in the redrawing of twelve Virginia state legislative districts, but left it to the district court to determine whether the state succeeded in “demonstrat[ing] that its districting legislation is narrowly tailored to achieve a compelling interest” ).
36: Bush v. Vera, 517 U.S. 952, 979 (1996) (opinion of Justice O’Connor, joined by Chief Justice Rehnquist and Justice Kennedy) (also involving congressional districts). When a state relies on compliance with the Voting Rights Act “to justify race-based districting,” however, the state “must show (to meet the 'narrow tailoring' requirement) that it had 'a strong basis in evidence' for concluding that the statute required its action.” Cooper, 137 S. Ct. at 1464 (quoting Ala. Legislative Black Caucus, 135 S. Ct. at 1273–74). In other words, “the State must establish that it had 'good reasons' to think that it would transgress the Act if it did not draw race-based district lines.” Id. at 1464 (quoting Ala. Legislative Black Caucus, 135 S. Ct. 1257, 1273–74 (2015)). See Perez, 585 U.S. at ___, slip op. at 39 (rejecting Texas's claim that “it had good reasons to believe” that its use of race as a predominant factor in the design of a Texas House District “was necessary to satisfy § 2 of the Voting Rights Act,” and noting “where we have accepted a State's 'good reasons' for using race in drawing district lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions” (internal quotation marks and citation omitted)). In Bethune-Hill v. Virginia State Board of Elections, the Court found that the State had established that the primary mapdrawer “discussed the district with incumbents from other majority-minority districts[,] . . . considered turnout rates, the results of the recent contested primary and general elections . . ., and the district's large population of disenfranchised black prisoners,” which the Court characterized as a “functional analysis” that “achieved an informed bipartisan consensus,” meeting the narrow tailoring requirement. 137 S. Ct. 788, 801 (2017)).
37: See Easley v. Cromartie, 532 U.S. 234, 242 (2001). ( “Caution is especially appropriate in this case, where the State has articulated a legitimate political explanation for its districting decision, and the voting population is one in which race and political affiliation are highly correlated.” ). Nonetheless, in considering a state’s legitimate reasons for a particular redistricting decision, the Court has held that legislative efforts to create districts of approximately equal population should not be weighed against the use of race to determine whether race predominates, as the “equal population” goal is a “background rule” that animates all redistricting decisions. See Ala. Legislative Black Caucus, 135 S. Ct. at 1271.
38: See Cooper, 137 S. Ct. at 1481–82 (holding that racial considerations predominated in the redrawing of two congressional districts in North Carolina and “that § 2 of the [Voting Rights Act] gave North Carolina no good reason to reshuffle voters because of their race” ).

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