ELECTORAL DISTRICTING, II

The constitutional guidelines governing federal electoral districting require that federal representatives be apportioned among the states "according to their respective Numbers," that representatives not exceed one for every thirty thousand persons, that every state have at least one representative, and that federal district boundaries not cross state lines.

Originally, the Constitution made few demands on states in the conduct of their electoral districting practices and for good reason. As james madison and alexander hamilton highlighted in the federalist Nos. 52 and 59, electoral practices and procedures were highly political in nature, subject to a variety of considerations in every state, and would not lend themselves to a uniform rule of resolution. It made little sense to provide more than the minimum required in the constitutional text, because additional restrictions were impractical and arguably unnecessary. Hamilton added that had the Constitution introduced an authority in the federal government to regulate state elections, this would have been immediately denounced as an unwarranted transposition of power and a premeditated attempt to destroy state governments.

In the early 1960s, the Supreme Court ignored Hamilton's and Madison's admonitions—and perhaps the Constitution itself—imposing new and unparalleled restrictions on state and federal districting. The circumstances—disproportionate legislative districts that frequently imposed a rural stranglehold on state and congressional elections—may have justified judicial intervention. In baker v. carr (1962), the Court ruled that reapportionment issues were no longer political questions best left to the political departments of government to resolve but could be reviewed by the judiciary for potential constitutional violations. One year later the Court established the one person, one vote rule, and two years later the Court mandated equipopulous districts for congressional elections and for both houses of state legislatures.

The one person, one vote decisions raised a host of problems for electoral districting. First, how precise was the numerical equality required by the equipopulous districts requirement? In 1983 the ineluctable logic of one person, one vote was used by the Court to strike down a New Jersey congressional districting scheme in which the difference between the largest and smallest districts was less than 0.7 percent. Justice byron r. white, dissenting, proclaimed that it suspended credulity to believe that such a trifling deviation from absolute population equality somehow detracted from "fair and effective" representation, the touchstone in reapportionment and redistricting cases. Yet the New Jersey ruling was consistent with the assumption throughout the reapportionment cases: that equal representation meant equally populated districts. Once this identification had been made, such exacting demands on population equality were the natural, if perhaps austere, consummation of the earlier reapportionment case law.

The one person, one vote rule formalized the reapportionment process, employing a standard that was easy to quantify but that failed to account for other factors that might create voting inequalities: the influence of political parties, money, and interest groups, in addition to gerrymandering, multimember districts, and bloc voting. If voters had a right to effective representation, as the Court had declared in the reapportionment cases, was the Court not obliged to account for these electoral inequalities as well? This second problem evades resolution because it is impossible to distribute political power in such a way as not to advantage or disadvantage one group while attempting to accommodate another.

In the context of racial and ethnic minorities, the courts and federal government have attempted to provide effective representation by generally mandating that jurisdictions dismantle multimember or at-large districts and create some majority-minority single-member districts. Again, the intractable nature of the politics of representation arises here, for it is by no means clear that minorities are more effectively represented when packed into districts in which minority-preferred candidates may be elected than when they are spread out through a number of districts in which their influence may be broader, even if their preferred candidates are not elected.

In the 1990s, the constitutional requirement of equipopulous districts, the sophisticated districting technology available, and the demand by the U.S. Department of Justice that states covered by the voting rights act of 1965 create majority-minority districts in proportion to the minority populations in the jurisdictions covered, combined to create bizarrely shaped racially gerrymandered districts in a number of states. These districts were successfully challenged on equal protection grounds in shaw v. reno (1993) and its progeny, where the Court held that districts in which race was the predominant factor motivating the creation of their boundaries were unconstitutional.

Ironically, the equal protection clause from which the right to effective representation derived, a right incorporated into the Voting Rights Act, has now been used successfully to attack the very race-conscious districting that was intended to promote effective representation. The difficult question that courts and the other branches of government will have to resolve in the future is how to reconcile the now reasserted individual rights protected by the equal protection clause with the group or interest-based rights underlying effective representation.

Anthony A. Peacock
(2000)

Bibliography

Cortner, Richard C. 1970 The Apportionment Cases. Knoxville:University of Tennessee Press.

Elliott, Ward E. Y. 1974 The Rise of Guardian Democracy: The Supreme Court's Role in Voting Rights Disputes, 1845–1969. Cambridge, Mass.: Harvard University Press.

Grofman, Bernard N. and Davidson, Chandler, eds. 1992 Controversies in Minority Voting: The Voting Rights Act in Perspective. Washington, D.C.: The Brooking Institution.

Peacock, Anthony A., ed. 1997 Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights. Durham, N.C.: Carolina Academic Press.

Rush, Mark E. 1993 Does Redistricting Make a Difference? Partisan Representation and Electoral Behavior. Baltimore, Maryland: Johns Hopkins University Press.

Scher, Richard K.; Mills, Jon L.; and Hotaling, John J. 1996 Voting Rights and Democracy: The Law and Politics of Districting. Chicago: Nelson-Hall Publishers.

Swain, Carol M. 1993 Black Faces, Black Interests: The Representation of African Americans in Congress. Cambridge, Mass.: Harvard University Press.

Thernstrom, Abigail M. 1987 Whose Votes Count? Affirmative Action and Minority Voting Rights. Cambridge, Mass.: Harvard University Press.