Perpetuating "one person, one vote" errors.

• Author: Muller, Derek T.

"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.

1. MODEST STRATEGIES

   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. (15)

   Additionally, representation of the "people" might include all people, voters and non-voters alike. Even though states largely had limited the franchise to adult white male citizens who owned property, apportionment for the House of Representatives would occur after the census enumerated the number of "persons" in each state--voters and non-voters alike. (16) Many states embraced similar principles in their own constitutions and laws.

   Over time, the form of government altered as the right to vote expanded. By the middle of the twentieth century, constitutional amendments and state laws broadly expanded the franchise, leaving very few populations disenfranchised--in most places, non-residents, children, felons, some ex-felons, the mentally ill, resident aliens, and illegal immigrants. (17)

   Additional constitutional amendments and state practices have turned all of our federal elections into essentially direct elections by the people. The Seventeenth Amendment converted elections for Senators into direct elections, and the practice of the Electoral College means that the people directly elect presidential electors who pledge to support a particular presidential candidate. (18)

   In the early 1960s, finding even these changes to our political system insufficient, voting rights groups sought creative ways to enforce new theories of voting rights in the federal courts. One strategy principally cited state laws and merely asked federal courts to enforce those state guarantees through the Equal Protection Clause. It was a kind of federalism, one in which federal courts would enforce state legal guarantees that the states themselves had abandoned. It did require novel judicial intervention into areas of traditional state authority, but it turned upon state abdication of laws in ways that unequally impacted some voters.

   Additionally, seizing upon the Court's Fourteenth Amendment jurisprudence that required state laws to pass "rational basis" review, plaintiffs filed lawsuits arguing that some of the state redistricting practices were so arbitrary and capricious that they could not pass the Court's rational basis test. While the precise contours of the right to vote and composition of their legislatures would be left to the States, the States would need to articulate some modest basis to justify their systems of government. These two relatively modest strategies drove the litigation in Baker v. Carr.

   1. Early History and Briefs

      The buildup to Baker v. Carr (19) began in Tennessee. The Tennessee Constitution of 187) dictated that apportionment of representatives in the General Assembly should occur according to the "enumeration of the qualified voters" in the state. (20) No such redistricting had occurred since 1901. (21) Legislative districts yielded significant disparities in the total number of voters in each district as populations grew and shifted--urban districts had high numbers of voters, and rural districts had relatively few voters. (22) But questions about redistricting had long been deemed political questions, matters of the Guarantee Clause and long foreclosed from any remedy in the federal courts--that is, the federal courts would not enforce Article IV's requirement that each State have a "Republican Form of Government." (23)

      Plaintiffs, then, crafted a new theory under the Fourteenth Amendment instead of the Guarantee Clause. Appellants' jurisdictional brief in Baker v. Carr identified a violation of the Equal Protection Clause because "an enumeration of qualified voters was not made and the actual number of qualified voters in the state was ignored." (24) Tennessee required reapportionment to occur on the basis of "voting population." (25) The constitution, Appellants argued, "clearly contemplated that overall representation should, as nearly as possible, approximate relative voting population." (26)

      These arguments focus almost completely on what the Tennessee Constitution required. They did not include an independent understanding of what voting weight ought to look like under the Equal Protection Clause of the U.S. Constitution. That is because the original litigation strategy in Baker v. Carr focused on a state-based theory that the Equal Protection Clause could be invoked to enforce existing state law--law that the state legislature (and state courts) had refused to enforce and one that resulted in unequal treatment of voters.

      Indeed, Appellants' briefs went so far as to concede that their legal claims turned on enforcement of existing state law:

      [Appellants] claim equality in voting rights as provided by the Constitution of Tennessee, and charge that the legislative attempt (successful so far) to deny that equality results in a violation of the equal protection of the laws. This is an important distinction, which reflects the manner in which the Fourteenth Amendment operates. It does not in itself decree equality in voting rights. It says that if a state policy is to afford equal voting rights ... the attempt by state officers, under color of law, to deny such equality to some of the citizens is a denial of equal protection. (27) Baker v. Carr was hardly the first case to rely on this argument. Lower federal courts adopted similar tactics shortly before 1962. Consider the essentially advisory opinion in 1958 in Magraw v. Donovan. (28) Plaintiffs invoked the Equal Protection Clause and Minnesota state law in their quest to secure reapportionment of the Minnesota state legislature. (29) And while the federal court recognized it had jurisdiction over the matter because of the invocation of the federal constitution, the remainder of the opinion--brief as it is--was wholly devoted to an interpretation of the Minnesota Constitution. (30) While federal abstention doctrines (31) or discretionary jurisdiction (32) might counsel against the exercise of federal power in such situations, the federal court quickly dispatched concerns regarding jurisdiction in this case. (33) And, the federal...