Apportionment and the Right to Vote "Fair and Foul"
Thompson, Kenneth R., Devience, Alex, Forum on Public Policy: A Journal of the Oxford Round Table
Article I of the American Constitution vests all legislative powers granted therein to a Congress which consists of two chambers: a Senate composed of two Senators from each state elected, after 1913, by the people in statewide elections, and a House of Representatives. (1) The Article specifies three rules regarding the elective process of members to the House. Section 2 provides that the number of representatives to be elected from each state shall be apportioned by Congress to the states on a population basis and that the representatives shall be chosen by the people of the several states. Section 4 states that times, places and manner of holding elections for representatives "shall be prescribed in each State by the Legislature thereof, but the Congress may at any time by Law make or alter such Regulations ..." (2)
The Framers were not unaware of the difficulties attendant to drafting an equitable election law and believed that under the concept of federalism and inherent differences in national and state interests, a discretionary power ought to reside in one or the other legislative bodies. (3) Alexander Hamilton, in The Federalist, saw the need for compromise on who would have the constitutional authority to regulate elections:
It will, I presume, be readily conceded that there are only three ways in which this power [regulating the right to vote] could have been reasonably modified and disposed: that it must either have been lodged entirely in the national legislatures, or wholly in the state legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been preferred by the Convention ... but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interpretation necessary to its safety. (4)
Although the Framers of the Constitution considered the right of the people to vote one of the fundamental articles of a republican form of government, no other singular constitutional term has engendered a higher political furor or created more disparate U.S. Supreme Court decisions than the controversies that surround the right to vote. (5) Legal commentators and political scientists for decades have inveighed against perceived voting abuses in apportionment cases as unconstitutional artifices enacted by state legislatures to dilute the voting strength of other political groups to protect an incumbency or advantageously affect the election of favored candidates. A historical review of the Supreme Court's response to the controversy and restatement of current law on the subject present a perplexing study of one of the most fundamental and seemingly inviolate rights of the people in a democratic government. (6)
The controversy is centered generally on one of the structural principles of the Constitution, the doctrine of separation of powers. In its most dogmatic form, the doctrine is based on the notion of three distinct functions of government that ought to be exercised respectively by three separate branches of government, which should be equal and mutually independent. (7) Montesquieu joined the notion to the idea of a "mixed constitution" of "checks and balances;" it being desirable, the celebrated political philosopher said, to divide the powers of government, first, in order to keep to a minimum the powers lodged in any single organ of government; and secondly, in order to be able to oppose organ to organ. (8)
Historically, the legislative and the executive branches of government under the Constitution were the political branches with whose exercise of constitutional and political powers granted to them, the judiciary would not interfere. It was not within the province of the Courts to inquire into the policies underlying action taken by the political branches in the exercise of their constitutionally conceded powers. (9) In 1803 in Marbury v. Madison where the Court declared for itself the power to determine the constitutionality of federal legislation, Chief Justice John Marshall wrote rather conclusively: "The province of the [Supreme Court] is solely to decide on the rights of individuals, not to inquire how the executive or its officers perform duties in which they have a discretion. Questions in their nature political, or which are, by the Constitution and laws submitted to the executive, can never be made in this Court." (10)
The Supreme Court has consistently held that as a matter of constitutional law sections 2 and 4 of Article I "gives the states primary responsibility for apportionment of their ... congressional districts" and by the text in section 4, Congress may set further requirements. (11) Congress has been traditionally reluctant to assert its oversight power and not until 1842 did Congress undertake to exercise that power when it passed a law requiring states to apportion voting of representatives in single-member districts. (12) Otherwise, Congress left it entirely to the states to define the territorial areas from which representatives would be chosen. The right to vote in state elections is nowhere expressly mentioned in the Constitution but unless a state election statute was discriminatory and violated a specific constitutional amendment, federal courts would refuse to hear voting challenges. (13)
Historically, virtually all state Constitutions require that elections for state bicameral legislatures and congressional representatives be situated in single-member districts of equal or nearly equal numbers of residents. However, by virtue of substantial population growth and shifts and the state legislature's reliance on districting plans adopted years earlier but not amended to reflect the population changes, districts resulted with glaringly unequal populations. (14) From 1901 to 1961 the Tennessee legislature, for instance, ignored the state constitutional requirement that districts be reapportioned every ten years, which inaction permitted minority groups of voters to gain majoritarian control over the state legislature and congressional representative seats. (15) In Alabama, one-quarter of the state population could elect a majority of the legislative members. (16) Many such malapportionments were challenged as unconstitutional on the grounds that they diluted the voting strengths of residents in the more populous districts and violated the equal protection of the law. Until the 1960s the challenges were considered by the Court to involve political questions and therefore beyond the reach of the Court.
The concept of "political question" is a well established judicial principle, first articulated by the Court in Marbury v. Madison (17) as to the executive and later in 1849 to Congress in Luther v. Borden. (18) In Borden, the Court was requested to resolve a dispute about the lawful government of Rhode Island that arose between two competing political groups. The Court held "[I]t is no part of the judicial functions of any court of the United States to prescribe the qualifications of voters in a state, ...; nor has it the right to determine what political privileges the citizens are entitled to, unless there is an established constitution or law to govern its decision." (19) Each House, in a State or Congress under Article I of the Constitution, said the Court, is "the judge of elections, activities and qualifications of its members." (20)
In Wood v. Broom the Court addressed the political question issue for the first time in a challenge to an apportionment map formed by the Mississippi legislature. Plaintiffs alleged that the voting district was purposefully not contiguous which created unequal populations and violated Article I, [section] 4 and the Equal Protection Clause of the Fourteenth Amendment. The Court held that there was no federal requirement that such congressional districts should be equal and therefore raised a question properly for the state legislature and Congress to resolve and thus it was nonjusticiable. (21) In 1946 in Colegrove v. Green, Illinois voters brought a malapportionment suit challenging a state districting plan that was relied upon by the state assembly in an unmodified manner since it was passed in 1900. (22) Plaintiffs claimed the plan failed to reflect the population growth and shifts, which created substantial voting inequalities between the districts and deprived voters of their equal protection under the law. The Court rejected the challenge on the basis that it was a political question and the courts had no viable standards on which to judge a matter that was entrusted to the states and Congress under the Constitution. Justice Frankfurter explained:
To sustain this action would cut very deep into the very being of Congress ... This controversy concerns matters that bring courts into immediate and active relations with party contests. [It] is hostile to a democratic system to involve the judicially in the politics of the people. [Courts] ought not to enter this thicket. (23)
Justice Black, in a dissent which cast the die in future case reasoning, argued:…
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Publication information: Article title: Apportionment and the Right to Vote "Fair and Foul". Contributors: Thompson, Kenneth R. - Author, Devience, Alex - Author. Journal title: Forum on Public Policy: A Journal of the Oxford Round Table. Publication date: Summer 2007. Page number: Not available. © 2008 Forum on Public Policy. COPYRIGHT 2007 Gale Group.
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