The false promise of one person, one vote.

• Author: Hayden, Grant M.

INTRODUCTION

It has now been four decades since the Supreme Court stepped into the political thicket with its groundbreaking series of reapportionment cases. (1) Those cases rather quickly brought about radical changes in the structure of our national, state, and local governments and, in so doing, reshaped the political landscape of the country in many, mostly beneficial, ways. The reapportionment cases also signaled the beginning of a revolution in the way we view the rights associated with meaningful participation in a democratic society, a revolution that continues to this day. We now enjoy a right to vote that is much more comprehensive--both in terms of who has the right to exercise the franchise and what that right entails--than at any other time in out history.

Despite this record of success, one of the most important and least controversial aspects of the right to vote--the one person, one vote principle--has never been adequately theorized. Academics, politicians, and the general public have, instead, taken it as an article of democratic faith. We are utterly confident that the one person, one vote principle rests on firm democratic foundations, that it is, in some sense, objective, and that it is a judicially manageable way of parsing out political power. The thesis of this Article is that this confidence is wholly misplaced.

The right to vote now embodies three conceptually distinct types of rights. (2) First, it includes the right to cast a vote. (3) This right of access to the polls is, quite obviously, a necessary component of any conception of the right to vote, and represents the right at its most fundamental level. But the ability to register and vote, taken alone, does not secure meaningful political participation because district lines may be drawn in ways that effectively dilute the power of that vote. Such vote dilution comes in two forms, quantitative and qualitative, and the rights associated with casting an undiluted vote are the second and third types of voting rights. (4) Quantitative vote dilution occurs when votes receive unequal weight, and thus the power of some votes is numerically diluted. (5) Qualitative dilution, on the other hand, occurs when a voter has less opportunity to elect a representative of her choice, most often as a result of gerrymandered district lines, despite the fact that her vote is weighted equally with all other votes cast. (6) Of these three types of rights, the right to a quantitatively undiluted vote is the least controversial. A vote is numerically diluted whenever districts are drawn in ways that deviate from a standard district size. Take, for example, a three-member governing body representing three single-member districts in a county of 30,000 people. If district lines are drawn such that the first district has a population of 5,000, the second 5,000, and the third 20,000, then voters in the third district have an obvious disadvantage in voting power as a result of the unequal district sizes. The norm used to measure the extent of their dilution is the equiproportional standard, captured by the appealing phrase "one person, one vote."

The one person, one vote principle was at the heart of the early reapportionment cases and has since become the sine qua non of democracy. (7) One of the primary reasons for its success is that it appears to be an objective or neutral way of parsing out political power. That is, unlike the other two types of voting rights--which involve the normatively loaded issues of who receives the right to vote and which groups deserve the right to a qualitatively undiluted vote--the quantitative cases can be resolved by mere reference to what is viewed as an elemental component of democracy. For that reason, the one person, one vote standard enjoys tremendous popular support, and legal challenges to districts that deviate from it are both temporally and doctrinally privileged.

The main thrust of this Article is that this accepted way of viewing quantitative vote dilution is misguided. A close examination of recent work in analytic philosophy and social economics makes clear that a decision to apply the one person, one vote standard is no more neutral or objective than decisions made with respect to the other two types of voting rights. In addition, removing the aura of objectivity from the standard helps reveal the connection between the three different types of voting rights that we now recognize. This, in turn, may allow us to restructure the law in a way that reflects the fundamental nature of the underlying rights.

I will develop my argument in three stages. Part I of the Article involves an account of some of the basic concepts involved in quantitative vote dilution. It begins with a brief historical survey of the legal status of population and voting, followed by a discussion of the contemporary appeal of the one person, one vote standard. I conclude this Part with a review of some of the arguments advanced for and against the standard, concluding that most arguments neither justify nor undermine the standard, and certainly do little to link it to the other types of voting rights.

Part II explores what I think is the key to understanding the claim of neutrality for the one person, one vote standard: the enduring problem of making interpersonal comparisons of utility. Utility, for our purposes, is best defined in terms of preference satisfaction, and thus in order to figure out the social utility of a particular state of affairs, we must be able to compare (and, ultimately, sum up) each individual's level of satisfaction. If, for example, I have a box of cookies and a box of crackers to distribute to my two children at the start of a long drive, I would want to know the relative strength of each child's preferences with respect to those treats in order to choose the distribution of cookies and crackers with the largest aggregate utility (or lowest decibel level).

Other, seemingly more important policy and distribution issues also require this sort of assessment of people's preferences. Such an assessment is also built into our acceptance of the one person, one vote standard, which, after all, instructs us how to weigh voter preferences in our political system. Thus, in this second Part, I will work through various attempts made by positivist philosophers and economists to compare the strength of individual preferences. As it turns out (much to the chagrin of those theorists), comparing the strength of the preferences of two or more people can never be done in a value-free, "objective" way.

Finally, Part III argues that the value-laden process of making interpersonal utility comparisons means that attempts to weight votes--which, after all, are revealed preferences--are similarly tainted. That is, any quantitative vote dilution standard, including one person, one vote, necessarily involves normative judgments. This results in the somewhat counterintuitive conclusion that the avoidance, not acceptance, of interpersonal utility comparisons may be what drives us to the equiproportional standard. When faced with the difficulties in assessing the strength of voter preferences with respect to most matters, we, in effect, have thrown up our hands and opted to assign them all equal weights. I also explain how the concept of interpersonal utility comparisons informs our view of deviations from the standard, and how it ties the three aspects of voting rights into a more unified whole. I conclude this Part, and the Article, with some preliminary suggestions for changes in voting rights law.

1. QUANTITATIVE VOTE DILUTION AND ONE PERSON, ONE VOTE

   1. The Legal Status of Population and Voting

      Like the history of the franchise generally, (8) the relationship between population and voting did not involve smooth and inexorable progress toward a particular goal (with the franchise, universal suffrage; with populations and voting, equally weighted voting). Nor did it involve a sudden moment of enlightenment in which the Court swept aside centuries of dimwitted political thinking and constitutionalized the equiproportional standard. Instead, the notion that people exercising equally weighted votes should elect representative bodies had been central to our notion of government from the country's inception. (9) Then, over the first half of the twentieth century, the common practice of placing voters in equally sized districts fell by the way-side as a result of restrictive state-constitution provisions and state legislators' unwillingness to relinquish power in the face of substantial demographic change. (10) The constitutionally groundbreaking reapportionment cases of the 1960s, Baker v. Carr, (11) Reynolds v. Sims, (12) and Wesberry v. Sanders, (13) were less a revolution than a rebirth--albeit one with a vengeance--of a practice long part of American political institutions.

      While the Declaration of Independence proclaimed it "self-evident" that "all Men are created equal," (14) there was no language to that effect in the original Constitution. Nonetheless, there are many signs that proportional representation, if not the norm, was at least a benchmark for democracy at the national level in the late eighteenth and nineteenth centuries. For example, there is evidence that the Framers intended members of the House of Representatives--the only popularly elected federal office at the time (15)--to be elected by people with equally weighted votes. (16) The sentiment could also be found in the Northwest Ordinance of 1787, which, when providing for future governments of the Northwest Territory, said that its inhabitants "shall always be entitled to the benefits ... of a proportionate representation of the people in the legislature." (17) Thus, there is some indication that population-based districting was an accepted practice on the federal level at the time the country was founded.

      The situation was similar at the state level. (18) Six...