Academic journal article Harvard Journal of Law & Public Policy

Perpetuating "One Person, One Vote" Errors

Academic journal article Harvard Journal of Law & Public Policy

Perpetuating "One Person, One Vote" Errors

Article excerpt

"One person, one vote" has no plausible basis in the text or original meaning of the Fourteenth Amendment of the United States Constitution. (1) More than fifty years after Baker v. Carr, however, this mantra remains essentially inviolable. (2) It remains widely hailed as one of the Supreme Court's greatest achievements. (3) "One person, one vote" is so esteemed that even a stray remark critiquing it is enough to cause a judicial nominee to receive the wrath of members of Congress. (4)

The Supreme Court entered the "political thicket" (5) with fanfare, invoking no specific constitutional text at the time but relying upon penumbras (6) from the Declaration of Independence and the amendments to the Constitution/ dismantling the structure of the state legislatures with the stroke of a pen. Among other consequences of its political interventionism, the Court compelled "that the seats in both houses of a bicameral state legislature must be apportioned on a population basis." (8)

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 that 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. (9) 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 under-theorized) 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 States. The Article identifies a lost footnote in an early draft of Burns v. Richardson that would have articulated the most lucid basis for deferring to the States as 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.


The Founders' design included multiple theories of representation at the federal level. It permitted election by the people for the House of Representatives; (10) it permitted election by the state legislatures for the Senate; (11) and it permitted election by electors for the President and Vice President. (12) The House would be accountable directly to the people and be apportioned on the basis of total population; (13) Senators would represent the several States, as each state received two Senators; (14) and the President was the product of a complicated series of mechanisms that largely deferred to the state legislatures. …

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