The United States Constitution

A forum for discussing the meaning of the United States Constitution for our political process.

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Location: Middleton, Massachusetts, United States

I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Monday, November 06, 2006

Reapportionment - The Failure of One Person One Vote

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Ira Krakow - The United States Constitution - The United States Constitution..

The United States Constitution

There has been an attempt to correct some of the flaws in the Constitutional system of allowing the states almost total freedom in deciding who is allowed to vote.  I'm referring to the reapportionment movement, the way that each state legislature carves out Congressional districts.  The movement is recent - it dates from the Civil Rights movement of the 1960s - and it involves significant reinterpretation of the Constitution by both the Supreme Court and Congress.  I don't think it's worked too well.

First, some background.  As I wrote in my episode about whether One Person, One Vote is a Constitutional right, according to Article 1, Section 2:

...the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

Each state legislature gets to carve up its map to draw Congressional districts, as well as for legislative districts, with no Federal oversight.  Each representative is elected within a geographical area called a Congressional district.  Further in Article 1, Section 2, the Constitution states:

The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative;

Currently, there are 435 members of the House of Representatives.  The number of representatives for each state is determined by a census, which is taken every 10 years.  The first census occurred in 1790, and there has been a census every 10 years since.  Every state has at least one representative.  In 1911, Public Law 62-5 set the membership of the US House of Representatives at 433.  When Arizona and New Mexico were admitted to the Union, the number went up to 435, which is what it is today.

The last census occurred in 2000.  Congressional reapportionment occurs in the next year after the census.  The last reapportionment took place in 2001.  By a complicated formula, taking into account that each state gets at least one representative and using the Equal Proportions Method (described here), the result is that, roughly, there is one representative for about 650,000 people.

Of course, none of this applies to the District of Columbia, (Washington, DC, our nation's capital).  Washington, DC, a city of about 550,000, has no Senators nor members of the House of Representatives.  Instead, Congress has the total authority to dictate all laws relating to the District of Columbia.  This is a specific, enumerated, Constitutional power, set up in Article 1, Section 8, which reads that Congress has power:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Washington, DC is governed by the Council of the District of Columbia.  The Council can pass any laws it wants but, as I mentioned before, Congress can veto any of them.  So the residents of our nation's capital are governed by a Congressional dictatorship.  It took a Constitutional amendment (the 23rd Amendment, ratified in 1961) to give the residents of the District of Columbia the right to select electors for President.   If any of the 550,000 people who live in the District of Columbia want representation in Congress or the Senate, they can move to Wyoming (population 509,254, according to the 2000 census).    I believe Dick Cheney is still a Wyoming resident.  Meanwhile, they'll just have to get over it, just as they have since the Founding of our Nation.

Thus, in the year after the census (the year that ends in 1, the last year being 2001), each legislature finds out how many representatives it has and then can redraw its Congressional.  From 1787 to 1962, this redistricting procedure was entirely up to the politicians in each state legislature.  It's been a political process from the beginning.  In fact, the term for prejudicial redistricting, called gerrymandering, originated in the early days of our republic.  I'll quote from the wikipedia article:

Gerrymandering is a controversial form of redistricting in which electoral district or constituency boundaries are manipulated for an electoral advantage. The word "gerrymander" is named for the American politician Elbridge Gerry (July 17, 1744November 23, 1814),[1] and is a combination of his name and the word "salamander," which was used to describe the appearance of a tortuous electoral district Gerry created in order to disadvantage his electoral opponents. "Gerrymander" is used both as a verb meaning "to commit gerrymandering" as well as a noun describing the resulting electoral geography. Ideally, it is pronounced with a hard G, as with Elbridge Gerry's actual name, but the "jerry" pronunciation is now the normal pronunciation [1].

Gerrymandering may be used to advantage or disadvantage particular constituents, such as members of a racial, linguistic, religious or class group, often in the favor of ruling incumbents or a specific political party.

Hey, it started in my state of Massachusetts.  I think there should be a big statue of Elbridge Gerry in front of the State House.   In practice, many state legislatures have been set up to favor rural interests over urban interests.  Did you ever wonder why the capitals of many states are in some backwater town, far away from the largest city or cities in the state?  How about Jefferson City, Missouri (population about 38,000, smaller than not only Kansas City, St. Louis, Joplin, Springfield, Independence, but also a number of suburbs of Kansas City and St. Louis)?  Montpelier, VT, a flyspeck, by Vermont standards, compared with Burlington, Rutland, or Brattleboro?  Pierre, South Dakota?  Springfield, Illinois, compared with Chicago?  Or even Albany, New York, a bit smaller than New York City, Buffalo, Syracuse, or Rochester?

The reason is that rural interests have dominated urban interests in state legislatures. These politicians have drawn the districts to favor the rural voters.  This is yet another aspect of how far from "one person one vote" our electoral system became.

An attempt to change the redistricting process started in the 1960s, as part of the Civil Rights movement.  After all, most of the rural areas in this country are overwhelmingly white.  Blacks tend to live in the larger cities.  There is a racial aspect to the imbalance between rural and urban areas.

Until 1962, the Supreme Court, when it agreed to rule on reapportionment cases, sided with the state legislatures, not touching their authority to do what they wanted.  The Court considered that redistricting was a "political question", best left to the legislatures.  The case of Baker v Carr, which Chief Justice Earl Warren believed was the most important case of his court (even more important than Brown v Board of Education which started the process of ending segregation), changed that.  The facts of Baker v Carr were simple.  A Tennessee Republican, Charles Baker, who lived in Memphis, the largest city in the state, complained that, although the Tennessee Constitution required that the state redistrict every 10 years, the state had not redistricted since 1900, 60 years before.  By the time of the lawsuit, Shelby County, where Memphis is located, had 10 times the population as some of the rural districts of Tennessee.  Thus he claimed that Memphis was underrepresented.  The defendant, Joe Carr, was Secretary of State for Tennessee, responsible for enforcing redistricting law.

One might think this was totally obvious and that the Court should have ruled unanimously and quickly.  However, as I mentioned before, the Court had refused to rule about political questions.    One of the justices, Charles Whitaker, became so physically ill as a result of this case that his tenure as justice was shortened.  He ended up not voting because he was so conflicted about the case.  Justice Felix Frankfurter declared that "courts should not enter this political thicket".  The final 6-2 decision (Warren, Brennan, Black, Douglas, Clark, and Stewart in the majority; Harlan and Frankfurter dissenting) held that the 14th Amendment implied that there was a fundamental "one person one vote" right and that when a case that threatens this right comes before the Court, the Court has a right to rule on it to protect that fundamental freedom.  The word the Court used was "justiciable", which meant that the Court could intervene.  In Baker, the Court remanded the case back to the district court in Tennessee, ordering it to come up with a redistricting plan.

And intervene the Court did.  In 1964, two cases, Reynolds v Sims and Wesberry v Sanders, the Court actually ruled on whether specific redistricting plans in Georgia (legislative districts in Reynolds and Congressional districts in Wesberry) were constitutional.   The Court established that "one person one vote", at least as far as redistricting is concerned, is the law of the land.  The Court was effectively making law even though it was not elected to do that - it's purpose, at least according to the Constitution, was to interpret existing law.

Among the more egregious pre-Reynolds disparities (compiled by Congressman Morris K. Udall):

  • In Connecticut one House district had 191 people; another, 81,000.

  • In New Hampshire one township with three people had a state assemblyman; this was the same representation given another district with 3,244. The vote of a resident of the first township was therefore 108,000 percent more powerful at the Capitol.

  • In Utah the smallest district had 165 people, the largest 32,380 (196 times the population of the other).

  • In Vermont the smallest district had 36 people, the largest 35,000, a ratio of almost 1,000 to 1.

  • Los Angeles County, California; with 6 million people, had one state senator, as did the 14,000 people of one rural county.

  • In Idaho the smallest Senate district had 951 people; the largest, 93,400.

  • Nevada's 17 State senators represented as many as 127,000 or as few as 568 people, a ratio of 224 to 1.

The Voting Rights Act of 1964 was a landmark law that outlawed the poll tax and literacy tests, and additionally required Federal registration of voters in areas that had less than 50% of eligible minority voters registered.  President Bush extended the Voting Rights Act by 25 years in 2006.  It has many complicated provisions.

Nowadays, redistricting cases are a source of full employment for an army of constitutional lawyers.  It's a bipartisan effort - both Democrats and Republicans file these cases depending on whether or not their side will gain or lose.  Has all this established one person one vote on the ground?  Hardly.  If redistricting isn't a political question, I don't know what is.  Here's a recent example:  the Texas legislature redrew the Congressional districts in 2003.  This was no accident.  The Republicans won control of the Texas legislature in 2002 and they wanted to increase the number of Republican seats in Congress.  Some interesting questions - this redistricting occurred not as a result of the census, but as a result of a state election.  If, say, the Democrats win in the next election, can they re-redistrict to increase their Congressional representation?  Texas had, in fact, redistricted in 2001, along with all the other states, as a result of the national census.

Another question - the League of Latin American Citizens charged that one of the districts - district 23 - was gerrymandered along racial lines.  They sued Rick Perry, the governor of Texas.  The case made it to the Supreme Court as League of Latin American Citizens v Perry (2006).  The Court ruled, first, that Texas could redistrict in 2003; and second, that District 23 was unfairly drawn.  To me, this opens the door to a lot of Supreme Court micromanaging of the redistricting process.  By the way, the Republicans did pick up 6 seats in Congress in 2004, partially as a result of the redistricting they did in 2003.     Take a look at your state's Congressional district map.  What kind of animals do you see?


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