Perpetuating 'One Person, One Vote' Errors

Abstract

More than fifty years after Baker v. Carr, “one person, one vote” remains essentially inviolable. Among the consequences of a series of redistricting cases, the Court compelled “that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” The judiciary had effectively nationalized the composition of all fifty state legislatures. But its mantra was mercifully limited. Shortly after the Court’s entry into the political thicket, it recognized that myriad unanswered questions remained, and it refused to refine its mantra any further. “Population basis” was deemed expansive enough to permit a representative body to draw districts on bases other than total population, including citizens and voters. The judiciary had ended its articulation of political theories that would forever bind the States. Instead, the States could continue to act within our federalist system and draw districts on the basis of some legitimate population total, acting in the absence of specific judicial directive.

This Article examines an under-discussed element of the reapportionment cases - the extent to which the parties themselves and the clerks to the Supreme Court justices resisted advancing the kind of sweeping claims that the Supreme Court ultimately embraced. The Court’s errors in the redistricting cases arose in spite of repeated guidance from the litigants before the Court and the justices’ own clerks to decide the cases in a narrower fashion, or pursuant to existing constitutional standards. Through archival research, this Article demonstrates that all parties were reluctant to redefine all state legislatures under a single (and undertheorized) political definition. The Court took little heed of such modest proposals and instituted sweeping claims about how state legislatures ought to look. The Article then identifies the circumstances in which the Court finally embraced restraint - it permitted States to choose an appropriate population basis for drawing legislative districts, leaving the matter to the sound discretion of the several States. The Article identifies a lost footnote in an early draft of Burns v. Richardson, which would have articulated the most lucid basis for deferring to the States when they selected the appropriate redistricting population. The Article then reflects on the proposed expansion of these sweeping claims in Evenwel v. Abbott, an attempt to return to the judicial nationalization of state legislatures articulated in Baker and its progeny. The Article calls for an end to these redistricting errors and for greater deference to the States.

Keywords: redistricting, one person one vote, federalism, legislatures, Evenwel, population, citizens, voting, elections

JEL Classification: K00, L1, K10, K19