SHOULD TINY DEVIATIONS FROM "ONE PERSON, ONE VOTE" BE STRUCK DOWN?
States Face The Question Of How Precisely Equal Districts Must Be

By GRANT HAYDEN

Tuesday, Aug. 27, 2002

For many, the phrase "one person, one vote" captures the essence of our democratic system - and, indeed, it is part of our Constitution, as interpreted by the Supreme Court. Because of this principle, state legislature must ensure that they draw political districts to encompass equal numbers of voters. But courts have recently had to confront the question of exactly how equal "equal" must be.

For example, last spring, in Pennsylvania, three voters challenged the legislature's new congressional districting plan because it contained districts that were not equally sized. The challenged variations were minuscule - at most, 19 voters. (The largest district had a population of 646,380; the smallest districts, 646,361.)

Nevertheless, a federal court, in Vieth v. Pennsylvania, struck down the plan. The state legislature then responded by adjusting its plan to reduce the difference down to one. (Concerned its ruling would throw off impending primaries, the court later restrict its holding to apply only to elections in or after 2004.)

Other states have faced similar lawsuits over tiny deviations from the one person, one vote principle. Some might say that all this fine tuning represent democracy at its finest. But the better view, I believe, is that counting very small numbers of heads when apportioning voting districts makes little sense. Indeed, it demonstrates the folly of applying such a precise legal rule to something as messy as democratic politics.

The History of U.S. Population-Based Vote Apportionment

After the Civil War, however, a shift away from population-based apportionment began. And the trend really picked up steam through the first half of the twentieth century.

By 1920, as a result of the waves of European- and African-Americans who migrated to urban areas, white, protestant, rural Americans had become a minority. That minority, however, retained control over state legislatures and thus over the reapportionment process.

And it did what it could to preserve its own power - refusing to redraw political districts in light of the population changes. The effect was to numerically concentrate the voting power of those in smaller and shrinking rural districts and dilute the power of those in the burgeoning urban districts.

The disparities grew quite large. In Vermont, for example, the most populous district had over 900 times the number of people than the least populous, and ratios of 20-1 and 30-1 were commonplace. By mid-century, the political system had reached the breaking point - and the Supreme Court intervened.

The Supreme Court Steps into the Political Thicket

In 1962, in Baker v. Carr, the Court decided that a "justiciable" constitutional Equal Protection claim could be brought based upon the unequal legislative districts in Tennessee (which were a result of the legislature's refusal to redraw district lines). The result of the ruling was to invite redistricting questions to be raised not only in the legislatures, but also in the courts.

In the years following, the Court developed the one person, one vote standard. It applied the standard to state legislative districts (for both houses of state legislatures) in Reynolds v. Sims, and to congressional districts in Wesberry v. Sanders. Those cases, and the ones that followed, dramatically transformed the country's political landscape.

The Courts Begin to Hear Cases About Smaller and Smaller Vote Disparities

Once the dramatic population disparities were remedied, though, the Court was forced to attend to cases that presented smaller and smaller variations in district sizes. It addressed these cases in two different ways, depending on the type of district involved.

Congressional districts, on the other hand, were given almost no latitude to deviate from precisely equal district sizes. And that rule led to cases based on tiny variations - such as the recent Pennsylvania suit.

Why Small Variations In District Size Should Be Legally and Politically Acceptable

The malapportionment problem did not require the exacting solution the Court applied to congressional districts. The precision of the solution was at odds with the institutions and realities of democratic politics. Moreover, this exceedingly precise "cure" ended up being far worse than the "disease" of slightly unequal district sizes.

It's important to recall that despite its widespread rhetorical appeal, the one person, one vote standard is only applicable to a limited number of our governmental institutions. The most obvious exceptions are the U.S. Senate and the Electoral College.

The two senators from Wyoming represent 495,304 people; the two from California represent 33,930,798. In the Senate, then, Wyoming voters have almost seventy times the voting power of California voters - a difference that dwarfs most of the pre-Baker irregularities.

Moreover, each state's power in the Electoral College is based, in part, on its representation in the Senate. (That's one reason why a presidential candidate may win the popular vote but lose the election, as Al Gore did in 2000. Thus, ironically, even "counting every vote" in the election, as Gore supporters urged, would not have led to a result in which every vote actually counted equally.)

Even congressional districts, to which the standard directly applies, vary quite a bit from state to state: The equality the Court has insisted upon is only among districts within a given state, not among all districts nationwide. Nationwide, there is - and is quite legally - a large variance.

Quibbling about a 19 person difference between the largest and the smallest Pennsylvania congressional districts seems a bit silly in this context. Compare, for instance, the radical difference between district sizes in Wyoming (495,304) and those in Montana (905,316), or even between those in Pennsylvania (646,371) and those in Ohio (630,730). These differences cannot be the basis for a lawsuit - but the 19 person difference can.

On a more local level, there are a host of what the Court calls "special purpose districts" that are altogether exempt from the one person, one vote requirements. For example, residents in water storage districts may only get to vote in the water board's elections if they own land. And if that is the system, residents receive votes based upon a "one acre, one vote" system.

Even for the institutions that are subject to the "one person, one vote" standard, the elegance of the phrase itself masks some not-so-elegant complexities.

First, what, exactly, is meant by "person"? That is, how the court should calculate the total number of "persons" in a district? Should it go by total population? Voting-age population? Voting-eligible population (which, in addition to those under 18, may also exclude resident aliens and felons)? Registered voters?

The Supreme Court originally spoke of ensuring equal numbers of "residents, or citizens, or voters," as if each guaranteed the same sort of equality. As these different and contrasting metrics show, they most definitely do not.

Second, even if we agree on how to define who counts as a "person" for these purposes, the source of the numbers for our calculations-the decennial census - has several shortcomings. It overcounts some populations and undercounts others, yet the Census Bureau is prohibited from correcting systemic errors through sampling.

In addition, even if the census were perfect, it would offer only a snapshot of a dynamic demographic process as people are born, die, move, and hide. Of course, these imperfections are no reason to discard the entire census enterprise, or the entire voting equality project. But they do swamp the precise tolerances built into the law governing "one person, one vote."

Finally, and most importantly, the "one person, one vote" standard has failed to achieve its goal of equal representation. That is because legislatures can still use other devices - such as at-large elections and racial gerrymanders - to effectively shut certain groups out of the political process. Sometimes these strategies are provably illegal; sometimes they are not. Sadly, ensuring numerical equality, it turns out, is a far cry from ensuring equal political participation.

Why the Precise Form of "One Person, One Vote" Is Actually Harmful

So, even with all of its shortcomings, what's so bad about forcing legislatures to so closely toe the "one person, one vote" line when designing districts? Is there really any harm?

In a word, yes. For one thing, this absurdly formalistic standard sanctions a race to the courthouse. As soon as the new census numbers are released, virtually every political district becomes unconstitutional, prompting a wave of lawsuits.

The case in Pennsylvania, for example, was brought by three Democrats who were upset that the legislature's original districting plan sought to aggressively increase Republican representation in the state's congressional delegation.

The Democrats may have had a valid gripe, but it was one properly raised in the legislature, not the courts. And that brings me to another, more general harm that derives from precise adherence to the "one person, one vote" standard: It shifts power away from legislatures to the courts.

This shift, of course, was signaled long ago, in the original Supreme Court malapportionment cases, but at the time, dramatic deviations called for a strong judicial role. Now the days of dramatic malapportionments are gone, yet the strong judicial role in democratic politics is reinforced with every new decision.

But, one might ask, what's so bad about having a strong judicial role in democratic politics? The answer, I think, is the slipshod Supreme Court decision in Bush v. Gore.

The Benefits of Relaxing A Strict "One Person, One Vote" Standard

A more relaxed standard might not only avert these harms, but also carry some positive benefits.

First, it would allow local governments to experiment with new democratic governing structures. And that in turn might allow them, for example, to develop innovative solutions to urban problems.

Second, it might give plaintiffs and courts in racial vote dilution cases more leeway in devising remedies. For example, they could create majority-minority districts (the traditional remedy for such claims) that were smaller than adjoining districts. For states with small minority populations, this could make an important difference.

It would also be easier to make sure that such districts didn't run afoul of other constitutional requirements on district shape. (Particularly strange shapes have sometimes been seen by the Court as evidence of improper racial gerrymandering.)

The Supreme Court would do well to relax the standard a bit, and slowly begin to back out of the everyday business of politics - turning in its scalpel and using a somewhat blunter instrument to judge whether political districts are equal enough to satisfy the Constitution.


Grant Hayden is an associate professor of law at Hofstra Law School, where he teaches Voting Rights, among other subjects.

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