Gerrymandering and Malapportionment

.. . In a democratic country nothing is worse than disfranchisement. And there is no such thing as being just a little bit disfranchised. A free man's right to vote is a full right to vote or it isno right to vote. 1

In most States, voting districts for Federal and State legislators are so

far from equal in population as to cause gross disproportion in representation. 2 This dilution of the votes of some citizens as compared to othersis not commonly defended on the merits. 8 Rather, the controversy hascentered upon the feasibility and appropriateness of particular methodsof rectifying a condition that is admittedly contrary to democratic ideals.

This chapter will examine the controversy and the two separate butrelated problems which give rise to it: "malapportionment," which ispolitical districting in which one group ^pf voters has disproportionatestrength as against other groups of voters in the same election; and"gerrymandering," which is political districting in which, althoughvoting strength may be proportionate, district lines are drawn in sucha way as to put particular groups of voters into, or out of, particulardistricts for the purpose of limiting the effectiveness of their votes. Eachof these problems has ramifications in terms of racial discrimination,and each may be a denial of equal protection of the laws. 4

The most famous example of gerrymandering with a racially discriminatory purpose involved Tuskegee, Ala. As indicated above, 5 the Alabama Legislature in 1957 changed the boundaries of this city in such away that all but 4 or 5 of about 400 Negroes formerly voting in municipalelections were beyond the city limits. A suit to challenge the gerrymander, Gomillion v. Lightfoot* was first dismissed by a U.S. districtcourt. The Supreme Court, however, in November 1960 ruled that"When a legislature thus singles out a readily isolated segment of aracial minority for special discriminatory treatment, it violates the I5thamendment." 7 On remand, the plaintiffs proved that the gerrymanderhad indeed been conducted for a racially discriminatory purpose, andon February 17, 1961, the district court held the statute to be unconstitutional and void. 8

"3

At least two forms of malapportionment have racial aspects. One occurs when, by reason of malapportionment, the political weight of anarea where many of the voters are Negroes (or members of other minoritygroups) is less proportionally than that of comparable areas where thereare few or no Negro voters. Another occurs when discrimination, bypreventing Negroes from voting, in itself produces or exaggeratesmalapportionment.

The significance of the racial aspect of malapportionment has beenstressed by V. O. Key (a southerner, and professor of government at Harvard University), who observed in 1950 that "by the overrepresentationof rural counties in State legislatures, the whites of the black belts gainan extremely disproportionate strength in State lawmaking." 9 This

gives excessive weight "to those areas in general the most conservativeand in particular the most irreconcilable on the Negro issue." 10 More

recently, G. Vann Woodward (a southerner and Sterling professor of history at Yale University) has pointed to malapportionment as a majorfactor in placing political control "in the hands of a small and often reactionary oligarchy," thereby "killing . . . needed social legislation"and fostering "interference with local public schools and their peacefuladjustment to Federal law." u

In analyzing malapportionment, the relationship between different

voting districts can be expressed in different ways: in terms of totalpopulations, or of numbers of registered voters, or of numbers of qualifiedvoters (i.e., registered voters plus those eligible but unregistered). Thefirst is commonly used and appears on the surface to be satisfactory.One would expect the ratio of total population to qualified voters to beabout the same from one district to another within the same politicalunit; insofar as the ratio of total population to registered voters mightvary from one district to another, the need (assuming equally populateddistricts) would seem to be one of education in civics rather than ofreapportionment. Using total population as the criterion for malapportionment is seriously defective, however, whenever the difference between qualified voters and registered voters results not from apathy butfrom disfranchisement. 12

THE LOUISIANA EXAMPLE

These conclusions are readily illustrated by voting statistics from Louisiana, where on the basis of extensive investigations and hearings, theCommission has found widespread racial discrimination in the voterregistration process. 18 In the parishes presented in table i, 14 at leastthree important points seem evident: first, serious malapportionment hi

terms of total population ratios 15 (col. 5); second, apparent disfranchisement of nonwhites in the rural, northern parishes of Madison and RedRiver (col. 7) ; and third, intensified disproportion created by apparentracial disfranchisement (col. 9).

Madison Parish, for example, has one representative for 16,444 citizens, while Calcasieu has two representatives for 145,475 citizens. Thismeans that the influence of a voter in Madison is potentially about 4^/2times greater than that of a Calcasieu voter. Since not one of the10,677 nonwhites is registered, because nonwhites are excluded fromthe franchise in that parish, 16 it is apparent that only the remaining5,767 whites in Madison enjoy representation there. The true extentof malapportionment as between Madison and Calcasieu, therefore, isnot 4}/a to i (col. 5) but potentially more than 12 to i (col. 9). Similarly, the true malapportionment between Red River (where there isalso discrimination against Negroes) 17 and Calcasieu is not 7 to i (col.

5), but almost 15 to i (col. 9); between Madison and Jefferson, not 3to i, but over 8 l / 2 to i; and between Red River and Jefferson, not 5 to i,but more than i o to i. Even as between the two rural parishes of RedRiver (northwest) and St. Helena (southeast) which have virtually thesame number of people, the effect of nonwhite disfranchisement in theformer parish is to give its white voters a 2 to i advantage in representation over voters in the latter. 18

Table 2, showing the representation of Louisiana's urban parishes,

suggests that malapportionment in Louisiana (as in virtually all otherStates) favors rural over urban communities. The 1,648,700 citizensin urban parishes have 40 representatives; for the State as a whole, totalpopulation is 3,257,022 and the total number of representatives is 105.This means that the predominantly urban centers have slightly over 50percent of the State's population, but only 38 percent of its votingstrength. Conversely, the predominantly rural areas have just under 50percent of the population, but 62 percent of its voting strength.

A similar demonstration can be made regarding disproportionaterepresentation in Federal elections. For example, the First CongressionalDistrict of Louisiana, which is in the southeast and includes OrleansParish, has a population of 682,256, while the adjacent Second Districthas a population of only 266,796. The Fourth District (in the northwest) and the Seventh District (in the southwest) appear in terms ofpopulation to be approximately equal: 391,541 in the former, and384,330 in the latter. But in the Fourth District, where discriminationis frequent, only 8.2 percent of the nonwhites of voting age are registered,while in the Seventh District the comparable figure is 67 percent. Thus,racial disfranchisement in the Fourth District 19 gives the whites in thatdistrict disproportionate voting power over citizens in other congressionaldistricts of the same State who do not deprive nonwhites of their votingrights.

Neither the Federal Government nor the States are without remedialpowers regarding malapportionment and gerrymandering. Thesepowers, however, are infrequently used.

Executive remedies

Section 2 of the I4th amendment provides that Representatives in Congress "shall be apportioned among the several States according to theirrespective numbers, counting the whole number of persons in eachState. ... " The basic constitutional standard of representation, therefore, is in terms of total population. However, in recognition of thepossibility of disfranchisement, section 2 further provides that when theright to vote is "denied .. . or in any way abridged" in any State orFederal election in any State, the basis of congressional representationin such State "shall be reduced in the proportion which the numberof such . . . [disfranchised] citizens shall bear to the whole number of

. . . citizens 21 years of age in such State." Apart from the qualification respecting age, the only grounds recognized in section 2 for limitinga citizen's right to vote are nonresidence and "participation in rebellion,or other crime."

Congress has provided that 20 2014

On the first day, or within one week thereafter, of the first regular session of the Eighty-second Congress and of each fifth Congressthereafter, the President shall transmit to the Congress a statementshowing the whole number of persons in each State .. . as ascertained under the seventeenth and each subsequent decennial censusof the population, and the number of Representatives to which eachState would be entitled under an apportionment of the then existingnumber of Representatives by the method known as the method ofequal proportions, no State to receive less than one member.

Pursuant to section 2 of the i4th amendment Congress has provided further that the number of Representatives thus determined "shall be reduced in the proportion which the number of ... [disfranchised] citizens shall have to the whole number of ... citizens 21 years of age insuch State." 21 Therefore, apart from the President's independent dutyto support the Constitution, Congress has required him to act in...