The Benefits of 'Judicially Unmanageable' Standards in Election Cases Under the Equal Protection Clause

44 Pages Posted: 21 Oct 2001 Last revised: 25 Jul 2013

See all articles by Richard L. Hasen

Richard L. Hasen

University of California, Irvine School of Law


The conventional story about the Supreme Court's decision in Baker v. Carr to adjudicate disputes over legislative apportionment is that political market failure required judicial intervention. The market failed in the case of unequally populated districts because existing legislators could not be expected to vote themselves out of a job, nor would voters who benefit from the existing apportionment plan elect legislators inclined to do so. This market failure makes a strong case for extra-legislative intervention in apportionment, assuming we - or at least courts - may make the normative judgment that unequally populated districts are improper. Thus, a subtext of the conventional story is our trust in the judiciary. We need faith that judges' impartiality and general wisdom makes up for the lack of particular competence in dealing with political matters. Opponents of judicial intervention doubted judicial competence in this area, calling for nonjusticiability in this area because "standards...for judicial judgment are lacking." This concern over "judicial manageability" turned out to be seriously exaggerated in the legislative apportionment and districting cases, where the court's adoption in Reynolds v. Sims of a strict "one person, one vote" standard required little more than knowledge of "sixth grade arithmetic," but it has proven more real in other cases, most recently, in Bush v. Gore.

This Article argues that the Baker majority and dissenters apparently failed to appreciate the benefits of judicial unmanageability for dealing with election cases under the Equal Protection Clause of the 14th Amendment. Precisely because these cases require the Supreme Court to make (at least implicit) normative judgments about the meaning of democracy or the structure of representative government, the danger of manageable standards is that they ossify the new rules and enshrine the current Court majority's political theory. That enshrinement is precisely what happened in the one person, one vote cases.

We cannot be surprised that the Court adopted the manageable standard of equally apportioned districts in Reynolds; manageable standards lower administrative costs, decrease the chances of lower court deviation from Supreme Court preferences, and increase reliance interests of those involved in the electoral process. But we must recognize the cost of manageable standards as well.

In contrast to Reynolds, when the Court does not articulate a manageable standard, it leaves room for future Court majorities to deviate from or modify rulings in light of new thinking about the meaning of democracy or the structure of representative government, or based on experience with the existing standard. It also allows for greater experimentation and variation in the lower courts using the new standard. Following modification and experimentation, it then often will be appropriate for the Court to articulate a more manageable standard.

In Part I of this Article, I explore whether the Court adopted an appropriately precise standard in the "one person, one vote" cases. I argue that the Court adopted the most manageable of standards that in retrospect has been too restrictive of political realities. I further consider how politics and jurisprudence might have been different had the Court adopted Justice Stewart's alternative, unmanageable standard for judging malapportionment claims. Justice Stewart's standard would have provided greater flexibility in dealing with apportionment problems and provided greater information to the Justices as they refined the new constitutional standards.

In Part II of this Article, I explore three additional areas in which the Court has adjudicated election cases under the Equal Protection Clause: cases involving wealth qualifications (Harper), suffrage qualifications (Kramer), and vote counting (Bush v. Gore). I use these three cases to illustrate how the Court may increase the unmanageability of the equal protection standards as it faces a more controversial equal protection claim.

Finally, in Part III, I briefly show how unmanageable standards may counteract the possibility of court-imposed proportional representation, which lurks in the background of a number of election cases under the Equal Protection Clause. Unmanageable standards sometimes will be a better alternative than denying relief altogether. I make this point by contrasting two cases. In Mobile v. Bolden, the Court rejected a claim that an at-large districting plan violated equal protection. It did so at least in part because it believed that to hold otherwise would have imposed a system of proportional representation on the creation of legislative bodies. In Davis v. Bandemer, the partisan gerrymandering case, the Court recognized a claim of an unconstitutional partisan gerrymander under the Equal Protection Clause, but did so using an unmanageable standard. Contrary to the predictions of the Justices not signing the plurality opinion and of some commentators, the Court in Bandemer successfully avoided imposing a proportional representation test on partisan gerrymandering claims. Thus, the Mobile Court was incorrect that a decision under the Equal Protection Clause would have led inexorably to proportional representation.

Suggested Citation

Hasen, Richard L., The Benefits of 'Judicially Unmanageable' Standards in Election Cases Under the Equal Protection Clause. Loyola-LA Public Law Research Paper No. 2001-22. Available at SSRN: or

Richard L. Hasen (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Drive
Suite 1000
Irvine, CA 92697-1000
United States
949 824 3072 (Phone)
949 824 0895 (Fax)


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