Congressional Districting

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Article I, 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.

A major innovation in constitutional law was 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,1 in Wesberry v. Sanders,2 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.” 3

Court involvement in this issue developed slowly. In America’s early history, state congressional delegations were generally elected at-large instead of by districts, and even when Congress required single-member districting4 and later added a provision for equally populated districts5 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.6 The first series of cases did not reach the Supreme Court 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.7 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 it changed in its 1962 decision in Baker v. Carr8 and subsequently modified again in its 2019 decision in Rucho v. Common Cause.9

For the Court in Wesberry,10 Justice Hugo 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.11 Justice John Marshall 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.12

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.13 But in Kirkpatrick v. Preisler,14 a sharply divided Court announced the rule that a state must make a “good-faith effort to achieve precise mathematical equality.” 15 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.” 16 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,17 (2) the requirements of legislative compromise,18 (3) a desire to maintain the integrity of political subdivision lines,19 (4) the exclusion from total population figures of certain military personnel and students not residents of the areas in which they were found,20 (5) an attempt to compensate for population shifts since the last census,21 or (6) an effort to achieve geographical compactness.22

Illustrating the strictness of the standard, the Court upheld a lower court’s decision to void 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.23 Adhering to the principle of strict population equality, the Court in a subsequent case refused to find a plan valid 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.” 24

Although the Supreme Court had suggested for a number of years that claims of unconstitutional partisan gerrymandering might be justiciable,25 it held in Rucho v. Common Cause that such claims were nonjusticiable, saying that there was no “constitutional directive” nor any “legal standards to guide” the Court.26 Quoting an earlier plurality opinion on the issue, the Court said that “neither § 2 nor § 4 of Article I ‘provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.’” 27

1: 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).
2: 376 U.S. 1 (1964). See also Martin v. Bush, 376 U.S. 222 (1964).
3: 376 U.S. at 7–8.
4: Act of June 25, 1842, 5 Stat. 491.
5: Act of February 2, 1872, 17 Stat. 28.
6: 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).
7: 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).
8: 369 U.S. 186 (1962).
9: No. 18-422, slip op. (U.S. June 27, 2019) (holding that political gerrymandering claims are not justiciable).
10: Wesberry v. Sanders, 376 U.S. 1 (1964).
11: 376 U.S. at 7–18.
12: 376 U.S. at 20–49.
13: 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.
14: 394 U.S. 526 (1969). See also Wells v. Rockefeller, 394 U.S. 542 (1969).
15: Kirkpatrick v. Preisler, 394 U.S. 526, 530 (1969).
16: 394 U.S. at 531.
17: 394 U.S. at 533. People vote as individuals, Justice William Brennan said for the Court, and it is the equality of individual voters that is protected.
18: Id. Political “practicality” may not interfere with a rule of “practicable” equality.
19: 394 U.S. at 533–34. The argument is not “legally acceptable.”
20: 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.
21: 394 U.S. at 535. This justification would be acceptable if an attempt to establish shifts with reasonable accuracy had been made.
22: 394 U.S. at 536. Justifications based upon “the unaesthetic appearance” of the map will not be accepted.
23: 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. See also North Carolina v. Covington, 585 U.S. ___, No. 17-1364, slip op. at 910 (2018) (per curiam) ( “The District Court’s decision to override the legislature’s remedial map . . . was clear error. '[S]tate legislatures have primary jurisdiction over legislative reapportionment,’ and a legislature’s ‘freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands’ of federal law. A district court is ‘not free . . . to disregard the political program of’ a state legislature on other bases.” (quoting Weiser, 412 U.S. at 795; Burns v. Richardson, 384 U.S. 73, 85 (1966); Upham v. Seamon, 456 U.S. 37, 43 (1982) (per curiam))).
24: 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 eighteen of the twenty districts had 571,530 people each and each of the other two had 571,531 people.
25: The Court held in Davis v. Bandemer that partisan or political gerrymandering claims were justiciable, but a majority of Justices failed to agree on a single test for determining whether partisan gerrymanders were unconstitutional. 478 U.S. 109, 125 (1986). See League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006); Vieth v. Jubelirer, 541 U.S. 267 (2004).
26: No. 18-422, slip op. at 34 (U.S. June 27, 2019).
27: Id. at 29–30 (quoting Vieth v. Jubelirer, 541 U.S. 267, 305 (2004) (plurality opinion)).