Legislative Districting
The Constitution requires that congressional representatives be elected on the basis of population, but state legislatures, not bound by the constitutional strictures, have been apportioned according to not only population but geographic size, special interests, and political divisions such as counties or towns. In 1962, the Court abandoned its historical reluctance to enter the political thicket of districting and ruled in Baker v. Carr that a voter could challenge legislative apportionment on the grounds that it violated the Equal Protection Clause. Two years later, in Reynolds v. Sims, the Court promulgated the one‐person, one‐vote principle that shifted power from rural to urban areas. More recently, the advent of sophisticated computer technology made it possible for new partisan majorities to form districts by employing all types of voter demographics. Instead of the voters choosing their representatives, the representatives can choose their voters. The process is overtly political, but under the Equal Protection Clause it has posed significant problems.
First, the justices have become involved in overseeing the redrawing of the legislative map. In Davis v. Bandemer (1986), a fractious Supreme Court found that while a Republican‐driven apportionment law may have had a discriminatory effect on the Democrats, the mere lack of proportional representation did not unconstitutionally diminish the Democrats' electoral power. Still, the Court did rule that political gerrymandering claims were justiciable, noting that judicially manageable standards could be discerned and applied in such cases.
Second, legislative redistricting also has involved the Court in settling the question of whether under the Voting Rights Act of 1965 and its 1982 amendments, legislatures can establish “safe” districts that would guarantee the election of African‐American representatives. Initially, the justices were sympathetic. In United Jewish Organizations of Williamsburgh v. Carey (1977), they held that a state could constitutionally redistrict along racial lines to comply with the Voting Rights Act. Justice William J. Brennan subsequently added, in Thornburg v. Gingles (1986), that a race‐based approach would promote an inclusive democracy in which one individual's vote would count as much as the next person's.
The Rehnquist Court, however, has challenged these assumptions. In closely divided votes, the Court overturned (first in Shaw v. Reno, 1993 and then Shaw v. Hunt, 1996) proposals in North Carolina that had created two black‐dominated congressional districts on the grounds that these districts lacked compactness and cohesiveness. Moreover, in Georgia v. Ashcroft (2003), the Court, speaking through Justice Sandra Day O'Connor, upheld a state senate plan that reduced minority populations in a number of districts. The Court concluded that minority “influence” districts (those in which minorities were not a majority of the voting age population but were large enough to ensure that their interests were considered) do not violate the Voting Rights Act and that majority‐minority districts (those in which the voting age population of minority groups constitutes a majority of the district's overall voting age population) do not necessarily maximize substantive representation of minorities.
The Court's often abstruse decisions remind us that its endless tours of redistricting's political thicket have not been its finest hour. The concept of “fair representation” remains elusive, both to define and to achieve.
Bibliography
- Gary W. Cox and Jonathan N. Katz, Elbridge Gerry's Salamander: The Electoral Consequences of the Reapportionment Revolution (2002).
- Carol Swain, Black Faces, Black Interests: The Representation of African Americans in Congress (1998)
— Kermit L. Hall
