Redistricting principles for the twenty-first century.

• Author: Altman, Micah
• Position: Law Review Symposium 2011: Baker v. Carr After 50 Years: Appraising the Reapportionment Revolution

ABSTRACT

Baker v. Carr's elevation of new population equality criteria for redistricting over old geographic-based criteria reflected an evolution in how the courts and society understood the principles of representation. Twenty-first century principles of redistricting should reflect modern understandings of representation and good government--and also reflect the new opportunities and constraints made possible through advancing technology and data collection.

INTRODUCTION

The landmark 1962 United States Supreme Court decision Baker v. Carr (1) profoundly affected redistricting practices. Prior to the decision, the federal government imposed limited regulations on congressional districting that were weakly enforced. Congressional and state legislative redistricting rules and procedures were to be found primarily in state constitutions and statutes that were similarly rarely enforced. By declaring redistricting to be justiciable, the Court laid down a marker in Baker that federal constitutional and statutory criteria would be enforced upon the states. A flurry of redistricting activity commenced following subsequent decisions in Wesberry v. Sanders (2) and in Reynolds v. Sims (3) finding that the Fourteenth Amendment requires districts to be of equal population. The federal courts overturned many state redistricting provisions in whole, particularly when sections that favored minimum allocation of seats to local government administrative units would result in impermissibly large population deviations among districts.

At the time, observers cheered these decisions, believing that disarming the gerrymandering demon's tool of malapportionment--unequal district populations--would significantly constrain redistricting mischief. However, politicians reacted to the subordinance of traditional redistricting principles to population equality by using population equality as justification to draw noncompact districts that split existing political boundaries. The intent behind these oddly shaped districts was often to favor or disfavor a political party, minority community, or incumbent by finely slicing communities, and even isolate prospective candidates' homes, using district lines. The gerrymander evolved and continued to thrive in its new legal environment.

In the decades following Baker, reformers have struggled to forge new links to chain the dreaded gerrymander--and have had some notable successes such as the federal Voting Rights Act and the adoption of citizen redistricting commissions by ballot initiative in states such as Arizona and California. This Article's purpose is to categorize these efforts to regulate redistricting and to identify new opportunities made possible by emerging technological innovations. By doing so, we hope to illuminate potentially viable heretofore unexplored reform pathways enabled by technological innovations.

1. REDISTRICTING PRINCIPLES PRIOR TO BAKER V. CARR

   Early U.S. districting was based on principles of representation found primarily in state constitutions that recognized both individual interests and territorially organized (although not necessarily contiguous) communities. The primary operational constraints were the regularity of redistricting to equalize populations, and the integrity of administrative units, most often counties. Contiguity was a common, but secondary constraint. Often, districting was synonymous with the practice of applying a population formula to allocate a number of legislative seats to administrative units such as counties or towns, a process known as apportionment.

   The U.S. Constitution is silent on the use of districts as a means to select members to Congress, much less on the use and manner of redistricting. Article I, section 2 of the U.S. Constitution describes a method of apportionment of congressional seats to the states following the decennial census. (4) And, until the 28th Congress, 20 to 44 percent of representatives were not elected from single-member districts. (5)

   Using the authority granted under Article I, section 4, Congress mandated the use of single member districts in 1842. (6) Notwithstanding the prohibition on multi-member congressional districts, representatives continued to be elected from multimember/at-large districts in every subsequent decade before Baker. And, prior to the equal population standard articulated in the litigation subsequent to Baker, states would only be required to change their congressional districts in the event that apportionment resulted in a loss of a seat to Congress. Even then, political circumstances sometimes prevented a state from implementing a new districting plan, and attempts to enforce the law in the courts generally met with failure. (7)

   Through statute, the federal government prior to Baker also imposed some criteria on how the districts were to be drawn. The 1872 Act required that congressional districts have "practicable" population equality, and the 1901 Act added a general compactness requirement. (8) However, the 1929 apportionment compromise did not reinstate any of the past Acts' requirements for contiguity, equal-population, compactness, or single-member districts. (9)

   In the federal system, states are tasked with drawing districts. State constitutions often describe a mechanism for apportionment or redistricting their state legislatures, since that function is a part of organizing state government. However, with two exceptions--California's county integrity requirement and West Virginia's requirement for contiguity and compactness (10)--prior to Baker they were silent on congressional redistricting, perhaps because the federal government had primary oversight of congressional elections through Article I, section 4 of the U.S. Constitution. (11)

   All states use a district-based system to elect state legislatures. Today, all states award a seat to the candidate that receives a plurality of the vote in an election. (12) While most states use single-member districts, some elect multiple candidates from the same district, and some states have implemented what are known as floterial districts, where districts for the same legislative body may overlap. (13) In states that use multi-member districts, voters are typically given a number of votes equal to the number of seats and may vote for one or more candidates. Candidates are rank-ordered by the votes they receive and the top candidates for a given number of seats to be elected are declared winners. All states must redistrict their legislative districts, with the exception that no redistricting is required if a state is allocated a single congressional district.

   The state constitutional and statutory mechanisms by which redistricting for both congressional and state legislative redistricting occurs are varied as to the process, timing of redistricting, and criteria to be applied. (14) And unlike the federal courts, prior to Baker v. Carr, state courts occasionally weighed-in on state constitutional issues. For example, state courts adjudicated alleged state constitutional violations in California, Illinois, Michigan, New York, North Carolina, and Wisconsin. (15) But, even for states with state constitutional provisions guiding state legislative redistricting, deference by the state courts to the political process was historically the norm.

   Altman lists the formal criteria for legislative redistricting in each state and the time of their adoption. (16) To summarize, states were split on the primary method of apportionment--while some states based apportionment of state legislatures' seats on population, others explicitly apportioned by counties, cities or other pre-existing geographical and political units. Even in states where apportionment was based on population, many states required that districts respect county lines. A substantial minority of states also required contiguity, and only seven required compactness.

   An empirical analysis of historical congressional districts reveals a somewhat different picture: (17) Even in the absence of formal requirements, the vast majority of congressional districts followed county (or, more rarely, town and city) boundaries, at least up to the time of the 48th Congress in 1883. (18) With the exception of districts spanning large bodies of water, violations of contiguity were quite rare during this time. (19) Historical congressional districts were also compact (by common quantitative measures) compared to modern, post-Baker districts. (20)

   Congressional districts were also routinely malapportioned, even after the passage of the 1842 Reapportionment Act. In the most malapportioned states, population varied by a ratio of 9.5 to 1 prior to the Act (during the 18th Congress), although the average degree of malapportionment was substantially lower. (21)

   In large part, both the relative compactness of the districts and their relative malapportionment were a result of the formal and informal emphasis on counties as a unit of representation. Counties were often themselves relatively compact, but varied greatly in population. The widespread practice of forming districts from contiguous counties limited the potential for districts to be noncompact, while constraining the possibility for population equality.

   The stability of district boundaries also contributed to malapportionment. In practice, a state was forced to change its district lines only when a state's seat allocation changed. And, even in this case, the required changes were more limited than after Baker: the addition of a seat might be addressed by adding an at-large district, while the subtraction of a seat could be addressed only by modifying a few districts.

2. THE REAPPORTIONMENT REVOLUTION

   Baker was not the first acknowledgement by the Court that the right to vote went beyond the simple right to cast a ballot and to have that ballot counted. Two years earlier, in Gomillion v. Lightfoot, (22) the Court recognized the principle that...