124 Pages Posted: 2 Mar 2010
Date Written: 1998
In the 1960s, the United States Supreme Court entered the political thicket of voting rights cases in which plaintiffs challenged apportionment and districting plans. In the 1970s, the Australian High Court heard its first districting case, and in the 1980s, the Canadian courts entered the fray. In the 1990s, the highest courts of all three countries have issued landmark decisions in this area. With a surprising degree of consensus, the Canadian and Australian courts have held that their respective Constitutions do not guarantee that electoral districts must be of equal size; in other words, they rejected the one person, one vote standard that has been a staple of American law for nearly 35 years. A profoundly divided American Supreme Court, by contrast, has held that, in addition to this equipopulosity requirement, the U.S. Constitution also requires that electoral districts be drawn without predominant attention to the race of voters.
Although there is some common ground among these sets of cases, they ultimately exemplify three very different jurisprudential attitudes towards redistricting questions, and towards constitutional questions generally. In fact, the different results in these cases are largely attributable to the jurisprudential choices each Court has made. In these cases, the Canadian Court has taken a pragmatist stance, while the Australian approach is more textualist; the American redistricting cases may be characterized as idealist. Since no Constitution mandates any particular jurisprudential model, a court adopting one approach is clearly choosing from among available options. Whatever model the court chooses determines (and is determined by) not just its approach to constitutional interpretation, but also the court's perception of its own role in the nation's political system, and its conception of the nation's electoral process.
Keywords: Voting Rights, Districting, United States, Canada, Australia, Constitutional Law, Comparative Law, Elections, Voting Rights
JEL Classification: K1, K10, D72
Suggested Citation: Suggested Citation
Daly, Erin, Idealists, Pragmatists, and Textualists: Judging Electoral Districts in America, Canada, and Australia (1998). Boston College International and Comparative Law Review, Vol. 21, No. 2, p. 261, 1998. Available at SSRN: https://ssrn.com/abstract=1562019