SINGLE-MEMBER DISTRICTS ARE NOT CONSTITUTIONALLY REQUIRED.

• Date: 22 June 2018
• Author: Ross, Robert E.

INTRODUCTION

The Constitution is silent on the method for electing representatives, as it only requires the apportionment of seats in the House following the decennial census. Congress and the states determine many of the electoral rules affecting the House, such as the method of apportioning seats, the manner of electing representatives, and the size of the House. As such, Congress, the courts, and state legislatures have become central actors in determining apportionment law that dictates the institutional design and representative nature of the House. After ratification of the Constitution, states experimented with different methods for electing representatives based on representational preferences and needs. It was Congress that ultimately required that states uniformly use single-member districts, creating institutional rules that profoundly affected the composition of the House of Representatives. Article 1, Section 4 stipulates that "Congress may at any time by law make or alter [election] regulations." Does this language include the ability to require states to adopt a uniform method for electing representatives? Can the single-member district requirement be constitutionally justified through an understanding of congressional power to make electoral regulations? These questions are the result of the broad language in the Elections Clause. Given the lack of judicial interpretation on this matter, understanding the constitutional development of single-member districts requires a focus on the constructed meaning of the Constitution that emerged within the political debates over preferred electoral rules.

Gill v. Whitford is a recent case of the Supreme Court entering the "political thicket" of redistricting. The case centers on Wisconsin's redistricting plan, following the 2010 census, passed by a Republican-controlled legislature in 2011. A district court declared the plan violated the Constitution because it favored one party, while disadvantaging the other--an unconstitutional partisan gerrymander. Voting results in the Wisconsin elections help substantiate this claim because, in 2012 and 2014, Democrats received more votes (just over a majority) than Republicans, yet the Democrats only won 39 of the 99 seats in the state-assembly. Wisconsin Republicans maintained that they did not intentionally create partisan districts, but the disparity emerged because of a natural geographic advantage they have in rural areas, where their voters are evenly distributed, compared to the Democrats, who are clustered in urban areas. (1) In this case, drawing geographical district lines mattered for the partisan composition and representativeness of the state legislature.

While Gill v. Whitford focused on state-level redistricting, in 2015, the Court ruled on a case dealing with congressional redistricting and the use of independent redistricting commissions to reduce partisan gerrymandering at the federal level. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court considered if a popular initiative could empower an independent commission to draw district lines for the state. State legislatures are constitutionally empowered to determine "the manner of holding elections" for the House, including drawing district lines. Writing for the 5-4 majority, Ruth Bader Ginsburg argued that the "Legislature" in the Elections Clause could also refer to any body capable of making laws, including "the people." (2) According to this understanding, the concept of legislature was expanded, allowing for additional avenues to drawing district lines other than state legislatures, the common practice based on the interpretation of the Elections Clause. Like many previous cases, the Court's ruling constructs an understanding of Article I, Section 4 and the scope of congressional power under the Times, Places and Manner Clause, specifically related to creating constituencies and determining the nature of congressional representation.

These cases are but two examples of the Court's engagement with the concept of representation and how it is determined through institutional design. Currently, the House of Representatives utilizes a system of single-member districts as the required method for electing members to the House. That is, every state is apportioned representatives based on population, and each state is divided into a corresponding number of geographically based voting districts, with one representative elected from each district. The decision to require single-member districts raises important questions regarding how and where these geographic voting boundaries are drawn. As seen in Gill v. Whitford, this matters for who votes, for whom they get to vote, and the electoral connection between voter and representative. When the Court is called upon to adjudicate cases involving redistricting, it primarily addresses the process and outcomes of drawing (or redrawing) district lines. However, the deeper institutional question of the origin and constitutionality of single-member districts is never addressed.

Scholarship on the development of single-member districts in the United States has rightly focused on the 1842 Apportionment Act, which was the first time Congress required states adopt a particular method for electing representatives. This Act was important in the development of Article I, Section 4 because the Whig Party's interpretation of the Times, Manner, and Places Clause shifted power from the states to Congress in determining the manner of electing representatives. Accordingly, research has provided explanations for why the Whigs pursued this particular electoral reform, including arguments from partisanship or self-interest (3) and concern for representation. (4) These accounts are useful for understanding an important moment in the institutional development of the House of Representatives and the nature of federalism. However, they do not capture subsequent developments beyond the 1840s and how the 1842 understanding of the Election Clause remained settled, even amidst legal challenges that emerged during the "apportionment revolution" of the 1960s.

This article will focus on two separate but interrelated developments: 1) the origin of using single-member districts as a method of representation and 2) how the meaning of the Election Clause was settled to legitimize congressional authority to require states to use single-member districts. The Supreme Court's interpretation of the Election Clause, while important for understanding contemporary voting rights, does not address the broader, historical meaning of the Clause. In other words, relying on the Supreme Court for understanding the Elections Clause provides relatively little guidance for understanding the origin and constitutionality of the congressional single-member district mandate. (5) In this article, we provide a brief historical account of the origin of using single-member districts as a method of political representation, a discussion of the development of the Election Clause and how Congress interpreted it to justify their requirement that states use single-member districts, and an account of how the Supreme Court has yet to address the constitutionality of congressional power over the method of electing representatives. Answering the questions of the origin and constitutionality of the single-member district requirement has important bearing on the concept of representation, as single-member districts often fail to provide representation to political and ethnic minority groups. (6) It also has implications for understanding the political process by which constitutional meaning is constructed absent judicial interpretations. (7)

1. ORIGIN OF SINGLE-MEMBER DISTRICTS

   After independence from Britain was declared, states began developing their own constitutions, and, following English Whig political thought (and John Locke), many of them limited the prerogatives of the governor and ensured the legislatures reigned supreme because it embodied the people. American legislatures were to be the government, and the people were empowered through legislative bodies and their representatives. The nature and scope of representation was perhaps the most important political controversy leading up to the revolutionary war and after. The concept of representation emerged from the impossibility of convening the whole people to make legislative decisions, particularly in areas that were both demographically and geographically dispersed. The challenge became designing a constitutional system that translated the voice of the people to the legislative body through representation, one that could not be based on English institutional design.

   A system of representation could not be derived from experience with English representation. If anything, the American system of representation needed to learn from the failures of the English model. The British system of representation was designed to accommodate limited geographic and social mobility and a constituency that was relatively small and static. Geographically based representation, then, was utilized to represent geographically distinct communities. (8) During the seventeenth century, as the population increased and mobilized, England's existing system of representation derived from community-based district lines no longer sufficed. Although England used a form of electoral districts, the problem of rotten boroughs and a small number of those choosing representatives created systematic inequalities in representation. The English House of Commons, the branch of Parliament intended to represent the people, had become so unequal, irregular, and inadequate in its representation that by the middle of the eighteenth century, it hardly reflected the voice of the people and was separated from the interests of those it was supposed to represent. (9) The House of Commons represented...