Urban and Rural Representation and State Legislative Apportionment
| Published date | 01 December 1964 |
| Author | Norman C. Thomas,John P. White |
| Date | 01 December 1964 |
| DOI | 10.1177/106591296401700409 |
| Subject Matter | Articles |
724
URBAN
AND
RURAL
REPRESENTATION
AND
STATE
LEGISLATIVE
APPORTIONMENT
JOHN
P.
WHITE,
Arizona
State
University
AND
NORMAN
C.
THOMAS,
University
of
Michigan
The
complexion
of
societies
and
civilizations
change,
often
with
amazing
rapidity.
A
nation
once
primarily
rural
in
character
becomes
predomi-
nantly
urban.
Representative
schemes
once
fair
and
equitable
become
archaic
and
dated.
(Chief
Justice
Warren,
in
Reynolds
v.
Sims.)
HE
SUPREME
COURT’S
full
acceptance,
in
the
Reynolds
case,
of
the
doc-
trine
of
&dquo;one
man,
one
vote&dquo;
will,
if
implemented,
unquestionably
result
in
JL
major
shifts
in
the
balance
of
power
in
state
legislatures.
The
precise
nature
of
these
shifts
is
as
yet
unclear,
and
depends
in
part
on
subsequent
judicial
construc-
tion
of the
court’s
somewhat
cryptic
comments
regarding
permissible
deviations
from
the
equal
population
standards
in
order
to
achieve
the
objective
of
&dquo;insuring
some
voice
to
political
subdivisions,
as
political
subdivisions.&dquo;
1 The
shifts
would
also
be
negated
should
legislation
be
enacted
or
a
constitutional
amendment
be
ratified
which
would
remove
the
matter
of
legislative
apportionment
from
the
jurisdiction
of
the
Supreme
Court.
The
immediate
popular
analysis
of
the
decision,
however,
stressed
a
major
political
victory
of
urban
majorities
over
entrenched
rural
minorities.
Some
of
the
remarks
of
the
Chief
Justice,
including
the
words
quoted
above,
indicate
that
the
court
shared
this
belief
to
some
extent.2
In
order
to
understand
whether
this
is
an
accurate
assessment
of
the
probable
effects
of
the
decision,
we
must
first
be
able
to
measure
effectively
the
incidence
of
over-and-under-representation
in
any
given
state.
The
courts,
including
state
and
lower
federal
courts,
have
significantly
lacked
any
precise
measuring
device
which
might
have
accomplished
this
purpose.
In
plunging
boldly
into
the
mathematical
quagmire,
the
court
placed
major
reliance
on
two
measuring
devices:
the
range
in
population
size
between
largest
and
smallest
districts,3
and
the
&dquo;majority
to
elect&dquo;
(Dauer-Kelsey
scale)
.4
Neither
of
these
devices
1
12
L.
Ed.2nd
506.
2
In
a
footnote
following
the
quoted
remarks,
Warren
qualifies
them
by
saying:
"Although
legislative
apportionment
controversies
are
generally
viewed
as
involving
urban-rural
conflicts,
much
evidence
indicates
presently
it
is
the
fast-growing
suburban
areas
which
are
the
most
seriously
underrepresented
in
many
of
our
state
legislatures.
And,
while
cur-
rently
the
thrust
of
state
legislative
malapportionment
results,
in
most
States,
in
under-
representation
of
urban
and
suburban
areas,
in
earlier
times
cities
were
in fact
overrepre-
sented
in
a
number
of
States...."
Ibid.,
at
530,
n.
42.
3
Cf.
National
Municipal
League,
Compendium
on
Legislative
Apportionment
(2nd
ed.;
Wash-
ington,
1962),
passim.
The
summary
table
(pp.
iii-iv)
in
this
publication
gives
two
items
of
information
for
each
state,
in
addition
to
the
average
size
of
districts:
one
is
the
Dauer-
Kelsey
scale,
and
the
other
is
the
range
of
population
size.
Range
has
apparently
been
almost
universally
cited
by
plaintiffs
in
suits
attacking
apportionments.
Most
apportion-
ment
opinions
have
referred
to
the
range
existing
in
the
litigated
apportionment,
but
there
is
nothing
approaching
unanimity
among
judicial
attitudes
toward
this
measurement,
though
a
majority
of
the
opinions
seem
to
regard
it
as
one
piece
of
evidence
to
be
con-
sidered,
and
a
few
apparently
regard
a
wide
range
as
conclusive
evidence
of
unconstitu-
725
can,
or
was
intended
to,
measure
the
representation
of
rural
and
urban
populations
as
such.
Of
course,
if
district
population
size
alone
is
to
be
considered,
such
meas-
ures
may
be
adequate
(leaving
aside
questions
of
statistical
appropriateness),
but
they
can
tell
us
nothing
about
probable
shifts
of
political
power
between
urban
and
rural
populations.
Nor
can
they
help
us
evaluate
the
decision
of
the
court
in
terms
of
the
&dquo;gravity
of
the
evil&dquo;
of
rural
overrepresentation,
which
quite
obviously
was
at
least
one
consideration
in
the
minds
of
the
majority
justices.
The
purpose
of
this
article
is
to
describe
a
technique
for
measuring
the
repre-
sentation
of
the
rural
and
urban
populations
as
such
in
all
of
the
ninety-nine
state
legislative
bodies.
The
technique
used
is
an
application
of
the
David-Eisenberg
indices,5
which
measure
&dquo;the
value
of
the
right
to
vote&dquo;
in
each
of
the
counties
of
the
United
States,
and
for
both
houses
of
bicameral
bodies.
David
and
Eisenberg
divided
the
average
population
of
all
districts
in
the
body
under
study
by
the
population
of
each
legislative
district,
and
multiplied
the
result
by
100.
Thus,
if
all
districts
were
of
tionality.
Dicta
in
Scholle
v.
Hare,
376
Mich.
176,
116
N.W.2d
350
Michigan
Supreme
Court
(1962),
is
to
the
effect
that
"When
a
legislative
apportionment
provides
districts
having
more
than
double
the
population
of
others,
the
constitutional
range
of
discretion
is
violated."
(Opinion
of
Kavanagh,
J.)
Similarly,
in
Moss
v.
Burkhart,
207
F.
Supp.
885
(1962),
Oklahoma,
the
court
appended
to
its
opinion
the
testimony
of
Dr.
Joseph
Pray,
a
political
scientist,
who
stated:
"...
to
the
extent
you
have
one
to
26,
you
have
a
diffusion
of
suffrage
power
which
is
as
bad
as
if
the
vote
was
not
counted
because
of
fraud...."
On
the
other
hand,
Judge
O.
Bowie
Duckett,
of
the
Circuit
Court
for
Anne
Arundel
County,
Maryland,
in
the
case
of
Maryland
Committee
for
Fair
Representation
v.
Tawes,
opinion
reproduced
by
photo
offset
in
Court
Decisions
on
Legislative
Apportionment
(New
York,
National
Municipal
League,
1962),
3 volumes,
rather
pointedly
rejected
the
argument
that
the
Maryland
range
was
much
worse
(33
to
1)
than
that
found
repugnant
in
Michigan
(12
to
1).
Judge
Duckett
included
this
plea
in
a
discussion
of
"points
of
little
merit."
The
Maryland
Court
of
Appeals
upheld
Judge
Duckett’s
decision,
182
A.2d
877
(1962).
Other
cases
in
which
range
has
been
utilized in
one
way
or
another
include:
Toombs
v.
Fortson,
205
F.
Supp.
248
(1962),
Georgia;
Sanders
v.
Gray,
203
F.
Supp.
158
(1962),
Georgia;
WMCA
v.
Simon,
202
F.
Supp.
741
(1962),
New
York;
Sims
v.
Frink,
208
F.
Supp.
431,
Alabama;
Sobel v.
Adams,
208
F.
Supp.
316
(1962),
Florida;
Wiscon-
sin
v.
Zimmerman,
209
F.
Supp.
183
(1962),
Wisconsin;
Caesar
v.
Williams,
371
P.2d
241
(1962),
Idaho;
Sweeney
v.
Notte,
183
A.2d
817
(1962)
Vermont;
Lisco
v.
Mc-
Nichols,
208
F.
Supp.
471
(1962),
Colorado;
and
Stein
v.
General
Assembly,
374
P.2d
77
(1962),
Colorado.
Similar
use
was
made
of
the
range
in
the
Reynolds
case,
and
in
the
accompanying
cases
decided
on
the
same
day.
A
good
discussion
of
the
problems
connected
with
the
use
of
the
range
may
be
found
in
W.
Allen
Wallis
and
Harry
V.
Roberts,
Statistics:
A
New
Approach
(Glencoe:
Free
Press,
1956),
pp.
245-47.
Wallis
and
Roberts
charge
that
the
Kinsey
report
came
to
some
of
its
more
interesting
findings
as
a
result
of
misusing
the
range.
Some
of
the
rough
evaluation
systems
proposed
and
actually
used
by
courts
seem
to
involve
a
failure
to
appreciate
that
overrepresentation
should
always
be
judged
by
look-
ing
at
the
other
side
of
the
coin:
the
effect
of
the
overrepresentation
on
those
underrepre-
sented.
We
feel
that
the
range
is
of
dubious
value,
both
statistically
and
historically.
Al-
most
any
elementary
statistics
textbook
warns
against
the
misuse
of
the
range
as
a
meas-
ure
of
dispersion.
4
Manning
J.
Dauer
and
Robert
G.
Kelsey,
"Unrepresentative
States,"
National
Municipal
Re-
view
(December
1955),
pp.
571-5, 587,
as
corrected
in
National
Municipal
Review
(April
1956), p. 198.
5
Paul
T.
David
and
Ralph
Eisenberg,
Devaluation
of
the
Urban
and
Suburban
Vote
(Char-
lottesville:
Bureau
of
Public
Administration, University
of
Virginia,
Vol.
1,
1961;
Vol.
11,
1962).
For
a
discussion
of
the
David-Eisenberg
indices,
as
well
as
a
proposal
for
a
statistically
sophisticated
method
of
evaluating
state
legislative
apportionment
(with
dis-
trict
population
equality
as
the
basic
sandard),
see
Glendon
Schubert
and
Charles
Press,
"Measuring
Malapportionment,"
American
Political
Science
Review,
58
(June
1964),
302-27.
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