Congressional Districting
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.
Annotations
A major innovation in constitutional law in recent years has been the development of a requirement that election districts in each state be structured so that each elected representative represents substantially equal populations. Although this requirement has generally been gleaned from the Equal Protection Clause of the Fourteenth Amendment,275 in Wesberry v. Sanders,276 the Court held that “construed in its historical context, the command of Art. I, § 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.”277
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 districting278 and later added a provision for equally populated districts279 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.280 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.281 In the late 1940s and the early 1950s, the Court used the “political question” doctrine to decline to adjudicate districting and apportionment suits, a position changed in Baker v. Carr.282
For the Court in Wesberry,283 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.284 Justice Harlan in dissent argued that the statements on which the majority relied 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, § 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.285
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.286 But in Kirkpatrick v. Preisler,287 a sharply divided Court announced the rule that a state must make a “good-faith effort to achieve precise mathematical equality.”288 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.”289 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 intact areas with distinct economic and social interests,290 (2) the requirements of legislative compromise,291 (3) a desire to maintain the integrity of political subdivision lines,292 (4) the exclusion from total population figures of certain military personnel and students not residents of the areas in which they were found,293 (5) an attempt to compensate for population shifts since the last census,294 or (6) an effort to achieve geographical compactness.295
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.296 Adhering to the principle of strict population equality in a subsequent case, the Court refused to find a plan valid 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.”297
Attacks on partisan gerrymandering have proceeded under equal-protection analysis, and, although the Court has held claims of denial of effective representation to be justiciable, the standards are so high that neither voters nor minority parties have yet benefitted from the development.298
ELECTOR QUALIFICATIONSIt was the original constitutional scheme to vest the determination of qualifications for electors in congressional elections299 solely in the discretion of the states, save only for the express requirement that the states could prescribe no qualifications other than those provided for voters for the more numerous branch of the legislature.300 This language has never been expressly changed, but the discretion of the states—and not only with regard to the qualifications of congressional electors—has long been circumscribed by express constitutional limitations301 and by judicial decisions.302 Further, beyond the limitation of discretion on the part of the states, Congress has assumed the power, with judicial acquiescence, to legislate to provide qualifications at least with regard to some elections.303 Thus, in the Voting Rights Act of 1965304 Congress legislated changes of a limited nature in the literacy laws of some of the States,305 and in the Voting Rights Act Amendments of 1970306 Congress successfully lowered the minimum voting age in federal elections307 and prescribed residency qualifications for presidential elections,308 the Court striking down an attempt to lower the minimum voting age for all elections.309 These developments greatly limited the discretion granted in Article I, § 2, cl. 1, and are more fully dealt with in the treatment of § 5 of the Fourteenth Amendment.
Notwithstanding the vesting of discretion to prescribe voting qualifications in the states, conceptually the right to vote for United States Representatives is derived from the Federal Constitution,310 and Congress has had the power under Article I, § 4, to legislate to protect that right against both official311 and private denial.312
275 Reynolds v. Sims, 377 U.S. 533 (1964) (legislative apportionment and districting); Hadley v. Junior College Dist., 397 U.S. 50 (1970) (local governmental units).
276 376 U.S. 1 (1964). See also Martin v. Bush, 376 U.S. 222 (1964).
277 376 U.S. at 7–8.
278 Act of June 25, 1842, 5 Stat. 491.
279 Act of February 2, 1872, 17 Stat. 28.
280 The House uniformly refused to grant any such relief. 1 A. Hinds’ Precedents Of The House Of Representatives 310 (1907). See L. Schmeckebier, Congressional Apportionment 135–138 (1941).
281 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).
282 369 U.S. 186 (1962).
283 Wesberry v. Sanders, 376 U.S. 1 (1964).
284 376 U.S. at 7–18.
285 376 U.S. at 20–49.
286 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.
287 394 U.S. 526 (1969). See also Wells v. Rockefeller, 394 U.S. 542 (1969).
288 Kirkpatrick v. Preisler, 394 U.S. 526, 530 (1969).
289 394 U.S. at 531.
290 394 U.S. at 533. People vote as individuals, Justice Brennan said for the Court, and it is the equality of individual voters that is protected.
291 Id. Political “practicality” may not interfere with a rule of “practicable” equality.
292 394 U.S. at 533–34. The argument is not “legally acceptable.”
293 394 U.S. at 534–35. 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.
294 394 U.S. at 535. This justification would be acceptable if an attempt to establish shifts with reasonable accuracy had been made.
295 394 U.S. at 536. Justifications based upon “the unaesthetic appearance” of the map will not be accepted.
296 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 to legislatures in this area to the extent possible.
297 Karcher v. Daggett, 462 U.S. 725, 733 (1983). Illustrating the point about computer-generated plans containing absolute population equality is Hastert v. State Bd. 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.
298 The principal case was Davis v. Bandemer, 478 U.S. 109 (1986), a legislative apportionment case, but congressional districting is also covered. See Badham v. Eu, 694 F. Supp. 664 (N.D. Cal. 1988) (three-judge court) (adjudicating partisan gerrymandering claim as to congressional districts but deciding against plaintiffs on merits), aff’d, 488 U.S. 1024 (1988); Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992) (three-judge court) (same), aff’d, 506 U.S. 801 (1992); Vieth v. Jubelirer, 541 U.S. 267 (2004) (same); League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) (same). Additional discussion of this issue appears under Amendment 14, The New Equal Protection, Apportionment and Districting.
299 The clause refers only to elections to the House of Representatives, of course, and, inasmuch as Senators were originally chosen by state legislatures and presidential electors as the States would provide, it was only with the qualifications for these voters with which the Constitution was originally concerned.
300 Minor v. Happersett, 88 U.S. (21 Wall.) 162, 171 (1875); Breedlove v. Suttles, 302 U.S. 277, 283 (1937). See 2 J. Story, Commentaries On The Constitution Of The United States 576–585 (1833).
301 The Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments limited the States in the setting of qualifications in terms of race, sex, payment of poll taxes, and age.
302 The Supreme Court’s interpretation of the equal protection clause has excluded certain qualifications. E.g., Carrington v. Rash, 380 U.S. 89 (1965); Kramer v. Union Free School Dist., 395 U.S. 621 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). The excluded qualifications were in regard to all elections.
303 The power has been held to exist under § 5 of the Fourteenth Amendment. Katzenbach v. Morgan, 384 U.S. 641 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970); City of Rome v. United States, 446 U.S. 156 (1980).
304 § 4(e), 79 Stat. 437, 439, 42 U.S.C. § 1973b(e), as amended.
305 Upheld in Katzenbach v. Morgan, 384 U.S. 641 (1966).
306 Titles 2 and 3, 84 Stat. 314, 42 U.S.C. § 1973bb.
307 Oregon v. Mitchell, 400 U.S. 112, 119–131, 135–144, 239–281 (1970).
308 Oregon v. Mitchell, 400 U.S. 112, 134, 147–150, 236–239, 285–292 (1970).
309 Oregon v. Mitchell, 400 U.S. 112, 119–131, 152–213, 293–296 (1970).
310 “The right to vote for members of the Congress of the United States is not derived merely from the constitution and laws of the state in which they are chosen, but has its foundation in the Constitution of the United States.” Ex parte Yarbrough, 110 U.S. 651, 663 (1884). See also Wiley v. Sinkler, 179 U.S. 58, 62 (1900); Swafford v. Templeton, 185 U.S. 487, 492 (1902); United States v. Classic, 313 U.S. 299, 315, 321 (1941).
311 United States v. Mosley, 238 U.S. 383 (1915).
312 United States v. Classic, 313 U.S. 299, 315 (1941).
