Apportionment and the Right to Vote "Fair and Foul"

By Thompson, Kenneth R.; Devience, Alex | Forum on Public Policy: A Journal of the Oxford Round Table, Summer 2007 | Go to article overview

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. …

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Apportionment and the Right to Vote "Fair and Foul"
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