Reapportionment

Apportionment—the division of a state into districts for the purposes of electing legislative representatives— raises profoundly important political and legal questions. The democratic right of individuals to cast equally valuable votes, and the republican commitment to equal representation are sometimes complementary, and sometimes conflicting, values. When changes in population necessitate the redrawing of the boundaries of electoral districts—reapportionment—the process is fraught with controversy. Since the 1960s, the courts have played an increasingly prominent role in legislative reapportionment. This is because legislators have often been more concerned with protecting their political power than protecting the civil liberties of voters.

The Court Enters the ‘‘Political Thicket’’

Reapportionment was traditionally considered an issue to be resolved by the political branches of government. After World War II, as American society experienced significant population shifts from rural to urban areas there was increasing pressure on the courts to intervene and protect the fundamental civil liberty of honest representation. Legislative remedies were not forthcoming; the rural interests that dominated legislatures were unwilling to reapportion districts because this would reduce their political power.

By the late 1950s, at least ten states had sought to remedy this electoral discrimination by giving their courts responsibility for legislative apportionment. The effects were limited, however, because the federal courts were reluctant to become involved. They adhered to the Supreme Court’s 1946 decision in Colegrove v. Green, in which Justice Felix Frankfurter wrote that legislative apportionment was a ‘‘political thicket’’ that courts should avoid entering. It was, said Frankfurter, a subject matter that constituted a purely ‘‘political question’’; in brief, it was an issue to be settled by the ballot box, not judicial opinion.

In 1962, the Court’s landmark decision in Baker v. Carr overruled Colegrove. Despite decennial censuses showing that Tennessee had experienced a significant increase in its urban population and an accompanying decline in rural areas, the districts for its state legislature were still apportioned according to the 1901 census. This created a situation whereby voters living in rural areas enjoyed a far greater share of legislative seats than those living in the more heavily populated urban districts. In Baker, although the Court did not determine whether this plan was constitutional, it did decide that this was a question that could be reviewed by a court—legislative apportionment was, the Court held, a justiciable issue. Convinced that the Court’s decision in Colegrove had been correct, in a dissenting opinion in Baker, Frankfurter wrote: ‘‘[I]n a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives.’’ The Court responded that however strong were the people’s calls for relief they went unheard by the legislators, in whose own interests the malapportioned districts were drawn.

Chief Justice Earl Warren later stated that Baker was the most significant decision made by the Court during his sixteen years as chief justice.

The 1963/1964 Reapportionment Cases

The majority of the reapportionment cases decided before Baker addressed the republican ideals that the guarantee clause of Article IV wrote into the Constitution. In Baker, the Court avoided this provision that guaranteed every state a republican form of government; instead it overcame the political question doctrine by using the democratic values of the equal protection clause of the Fourteenth Amendment. Between 1962 and 1964, in a series of major decisions, the Court expanded its involvement by ruling on the merits of specific apportionment plans. These decisions demonstrated the ‘‘fundamental’’ and democratic nature of the basic civic liberty of honest electoral representation through equal worth of individual votes, and the republican value of equal legislative representation.

The decisions in Gray v. Sanders (1963) and Wesberry v. Sanders (1964) represented the transition from Baker to the landmark cases decided in June 1964. In Gray the Court heard a challenge to Georgia’s system of counting primary election votes based on county units, a system that greatly benefited the residents of rural counties. Writing for the Court, Justice William O. Douglas concluded that ‘‘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.’’ Eleven months later, in Wesberry v. Sanders, the Court modified this standard and applied it to elections nationwide when it concluded that the Constitution required that ‘‘as nearly as is practicable’’ votes in congressional elections should carry equal weight.

In six cases decided in June 1964, headed by Reynolds v. Sims, the Court applied these principles to the states, ruling that the Constitution required per capita apportionment in both houses of every bicameral state legislature. The Court’s opinion, written by Chief Justice Warren, effectively ended legislators’ attempts to rationalize malapportionment. His opinion declared, ‘‘Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.’’ The Court categorized equal political representation as a ‘‘fundamental’’ right of the individual voter, protected by the equal protection clause. As the Court said, ‘‘The right to vote freely for the candidate of one’s choice is of the essence of a democratic society.’’ Traditionally, the Court had rarely required the government to present anything more than a rational justification for actions challenged under this provision of the Constitution. In Reynolds, labeling this right ‘‘fundamental’’ meant applying the standard of strict scrutiny that now required the government to show that its actions were narrowly tailored to further a Compelling State Interest. There could be no such interest in apportionment that was not per capita because, Warren concluded, ‘‘To the extent that a citizen’s right to vote is debased, he is that much less a citizen.’’

Frankfurter left the Court in 1962, but the position he took in Baker—that reapportionment was a purely political question—was maintained by Justice John Marshall Harlan II, who dissented alone in Reynolds. In the accompanying cases, however, the Court was split over whether its decisions actually reflected democratic or republican values. This division was clearest in Lucas v. Forty-Fourth General Assembly of Colorado, involving an apportionment plan that became a state constitutional amendment after adoption, by referendum, by a majority of the voters in every county of the state. The plan only provided for per capita apportionment in the lower house of the state legislature. The Court maintained that this plan was unconstitutional because, as in Reynolds, individuals’ votes were not equally weighted. Dissenting in Lucas, Justice Potter Stewart rejected this, saying that the cases decided with Reynolds ‘‘have nothing to do with the denial or impairment of any person’s right to vote.’’ Instead, they involved the limits that the equal protection clause places on states’ choices of apportionment plans.

In Reynolds, the Court was committed to the fundamental civil liberties principle that ‘‘the basic aim of legislative apportionment’’ is ‘‘fair and effective representation for all citizens.’’ It recognized, however, that differences among the states made it unreasonable to insist on ‘‘a strict population standard’’ if there existed ‘‘legitimate considerations incident to the effectuation of a rational state policy’’ that could justify ‘‘deviations from the equal-population principle.’’ Although this rational basis standard of judicial review made it easier for a state to defend its redistricting actions than would have been the case if the Court imposed strict judicial scrutiny, the Court warned that ‘‘neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from populationbased representation. Citizens, not history or economic interests, cast votes.’’ This observation would have significant consequences, in later decades, as the Court considered whether these rules applied when the ‘‘group interests’’ were based on ethnicity or race.

The reapportionment cases of 1963 and 1964 received the public support of Presidents John F. Kennedy and Lyndon B. Johnson, who integrated the broad civil liberties principles of the decisions into civil rights agendas. Many members of Congress, however, agreed with Frankfurter and Harlan that malapportionment remedies should be sought at the ballot box, not through judicial action. There were repeated congressional calls, during 1964 and 1965, for punitive legislation or constitutional amendments to prevent future judicial involvement in legislative apportionment. Support for these changes was lacking, however, as attention turned to the passage of major civil rights legislation, in particular the Voting Rights Act of 1965 (VRA). Representing the spirit of both the Fifteenth Amendment, which prohibits the denial of voting rights based on race, and the vote dilution concerns of Baker and its 1964 progeny, the VRA placed greater protections on the voting rights of minorities (initially blacks, then other groups), and required states to seek Justice Department approval for any electoral representation changes involving the ‘‘effectiveness’’ of votes.

Where and How to Draw District Boundaries

Since 1965, reapportionment challenges have usually involved one of two issues—the mathematical equality of district populations, and the factors that may be used to determine where boundaries are drawn. In Lucas, the Court said that ‘‘one of the most undesirable features’’ of Colorado’s apportionment was the requirement that counties with multiple legislative seats were required to hold at-large county elections. This debased the votes of the residents in the most populous counties, because, the Court observed, ‘‘No identifiable constituencies within the populous counties resulted, and the residents of those areas had no single member of the Senate or House elected specifically to represent them.’’ Critical that the Court’s decision ignored the more important, and traditional geographical considerations for reapportionment, the dissenters argued that if ‘‘the goal is solely that of equally ‘weighted’ votes,’’ then the preferable remedy is ‘‘the abolition of districts and the holding of all elections at-large.’’ Responding to this debate, in 1967 Congress passed legislation requiring single-member districts for congressional elections in states with more than one seat.

The Court has traditionally placed greater importance on the mathematical equality of the populations of congressional districts than those created for state legislative elections. In 1983, in Karcher v. Daggett, a five-justice majority rejected the reapportionment of New Jersey into districts, the largest and smallest of which were separated by less than four thousand votes. The Court concluded that ‘‘absolute population equality’’ was ‘‘the paramount objective of apportionment’’ for congressional seats under Article I of the Constitution. However, it retained the recognition, made in Reynolds, that differences among the states permitted greater deviation from mathematical equality for state legislative apportionment.

Gerrymandering

Taking its name from the salamander-shaped district created in 1811 by Massachusetts Governor Elbridge Gerry in an attempt to maximize his political power, ‘‘gerrymandering’’ is the practice of drawing the boundaries of legislative districts in order to favor or disadvantage a political party or group. Traditionally used as a negative term describing discriminatory reapportionment practices, or bizarrely shaped districts, litigation usually involves either partisan or racial gerrymandering.

Recognizing that reapportionment always involves political motives, the courts have been reluctant to decide the legality of redistricting that favors one political party at the expense of another. The continuing importance of honest representation has led the Court to hold that partisan gerrymandering is a justiciable issue—Davis v. Bandemer (1986). In this case, however, the Court found that an Indiana state legislative apportionment plan did not dilute the votes of Democrats. To show that a plan ‘‘substantially disadvantages certain voters in their opportunity to influence the political process effectively,’’ the Court said, required ‘‘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.’’ The Court found that this evidence did not exist in Indiana.

Since the 1960s, the Court has been more willing to consider whether such disadvantages exist when reapportionment is challenged based on race. In 1960, in Gomillion v. Lightfoot, the Court struck down a plan that redrew the boundaries of the city of Tuskegee, Alabama, to exclude black residents and maintain whites’ control of the city’s politics, creating, in the words of the Court, a district that was an ‘‘uncouth twenty-eight-sided figure.’’ The Court unanimously ruled that state redistricting could not constitutionally violate a right protected by federal law—in this case the voting rights protections of the Fourteenth and Fifteenth Amendments. Two decades later, in Mobile v. Bolden (1980), the Court ruled that reapportionment could only be found to violate either of these amendments because of race if there was evidence of a legislative intent to engage in such discrimination. In 1986, the Court expanded the opportunities for racial minorities to mount successful challenges to reapportionment plans when it decided, in Thornburg v. Gingles, that the effects of redistricting could be used to prove racial discrimination. It is important to note, however, that Gingles was limited to claims based on the VRA. It was a reaction to amendments to that law; as such, it left Bolden untouched because that case involved a constitutional, rather than statutory, claim.

Although answering some important questions about racially discriminatory reapportionment, these cases did not consider the contentious question of whether legislative districts could be drawn to increase minority power. Did the ‘‘one man, one vote’’ guarantee mean that every individual’s one vote carried equal weight, or was it necessary to provide political advantages to groups whose votes, because of discriminatory practices, did not actually result in equal legislative representation?

‘‘Majority-Minority’’ Districts

Beginning in the 1970s, the federal government, through its enforcement of the VRA, promoted the creation of so-called ‘‘majority-minority’’ districts. When they reapportioned their states, legislators were encouraged to create districts that contained a majority of residents of ethnic or racial minorities. One result was a sharp increase in the number of blacks and Hispanics elected to the House of Representatives. Following the 1990 census, a number of states redrew the boundaries of their legislative constituencies in order to include majority-minority districts after their initial reapportionment plans were rejected by the Justice Department. In Shaw v. Reno (1993) and Miller v. Johnson (1995), a closely divided Court concluded that these efforts to create political communities out of racial communities were unconstitutional, and that residents must create any such communities voluntarily, without a state assumption ‘‘that voters of a particular race, because of their race, ‘‘think alike, share the same political interests, and will prefer the same candidates at the polls’’ (Miller, quoting from Shaw).

In Shaw, the Court was confronted with a North Carolina reapportionment plan that contained, in the Court’s words, ‘‘district boundary lines of dramatically irregular shape,’’ creating one district whose shape was described by some, the Court observed, as resembling a ‘‘bug splattered on a windshield.’’ Politically, the plan benefited minorities because it created two districts that sent black members to Congress from North Carolina for the first time in the twentieth century. However, from a legal perspective, the Court concluded, the plan violated the constitutional protections that existed to protect the civil liberties of everyone in American society. ‘‘Racial gerry-mandering,’’ wrote Justice Sandra Day O’Connor, ‘‘even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.’’ Therefore, she concluded, ‘‘racebased districting by our state legislatures demands close judicial scrutiny’’—the test that required such plans to be defended as narrowly tailored to further a Compelling State Interest.

Two years later, in Miller, the Court explained that its objections to the North Carolina plan in Shaw were not confined to the bizarre shape of the districts. Again confronted with the creation of majority-minority districts, this time in Georgia, the Court, through Justice Anthony M. Kennedy, stated that a reapportionment plan was unconstitutional when race was found to be ‘‘the predominant factor’’ in determining the boundaries of districts. In Hunt v. Cromartie, in 1999, the Court further clarified that the existence of a majority of blacks in a district was not, on its own, proof of racially motivated redistricting.

Reapportionment: A Continuing Controversy

In reapportionment cases, the Supreme Court has had a longstanding affinity for the protection of the civil liberties of individuals rather than community interests. Shaw and Miller demonstrated that this tradition faces its strongest challenge when the group interests at stake are defined by race or ethnicity. The four dissenters in both cases concluded, as Justice Ruth Bader Ginsburg wrote in Miller, ‘‘Apportionment schemes, by their very nature, assemble people in groups.... That ethnicity defines some of these groups is a political reality.’’

In the 1990s, a majority of the Supreme Court agreed that Americans ‘‘share both the obligation and the aspiration of working toward’’ the goal of ‘‘eradicating invidious discrimination from the electoral process’’ (Miller). Yet, it is unclear what this means for the law and politics of reapportionment. It is clear, however, that the judicial branch will continue to play a major role in protecting the voting rights of individuals. This is because legislators cannot be guaranteed to do so, and because it is a fundamental premise of America’s constitutional democracy that ‘‘[c]ourts sit to adjudicate controversies involving alleged denials of constitutional rights’’ (Lucas).

HELEN J. KNOWLES

References and Further Reading

• Buchman, Jeremy. Drawing Lines in Quicksand: Courts, Legislatures, and Redistricting. New York: Peter Lang, 2003.
• Davidson, Roger H., and Walter J. Oleszek. Congress and Its Members. 10th ed. Washington, D.C.: CQ Press, 2005.
• Epstein, Lee, and Thomas G. Walker. Constitutional Law for a Changing America: Rights, Liberties, and Justice. 5th ed. Washington, D.C.: CQ Press, 2004.
• Knowles, Helen J., May It Please the Court? The Solicitor General’s Not So ‘Special’ Relationship—Archibald Cox and the 1963–1964 Reapportionment Cases, Journal of Supreme Court History (July 2006).
• Peacock, Anthony A., ed. Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights. Durham: Carolina Academic Press, 1997.
• Ryden, David K., ed. The U.S. Supreme Court and the Electoral Process. Washington, D.C.: Georgetown University Press, 2000.
• Yarbrough, Tinsley E. Race and Redistricting: The Shaw- Cromartie Cases. Lawrence: University Press of Kansas, 2002.

Cases and Statutes Cited

• Baker v. Carr, 369 U.S. 186 (1962)
• Colegrove v. Green, 328 U.S. 549 (1946)
• Davis v. Bandemer, 478 U.S. 109 (1986)
• Gomillion v. Lightfoot, 364 U.S. 339 (1960)
• Gray v. Sanders, 372 U.S. 368 (1963)
• Hunt v. Cromartie, 526 U.S. 541 (1999)
• Karcher v. Daggett, 462 U.S. 725 (1983)
• Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964)
• Miller v. Johnson, 515 U.S. 900 (1995)
• Mobile v. Bolden, 446 U.S. 55 (1980)
• Reynolds v. Sims, 377 U.S. 533 (1964)
• Shaw v. Reno, 509 U.S. 630 (1993)
• Thornburg v. Gingles, 478 U.S. 30 (1986)
• Wesberry v. Sanders, 375 U.S. 1 (1964)
• Single-Member District Act of 1967, 2 USC Sec. 2c.
• Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 131
• Voting Rights Act of 1965, Pub. L. 89-100, 79 Stat. 437

See also Equal Protection of Law (XIV); Voting Rights (Compound); Warren Court