Traditional Districting Principles: Judicial Myths vs. Reality

Abstract

One person, one vote. With this principle, the Court permanently changed representation in the United States. Equal population requirements changed the face of legislative redistricting in the 1960s, when the Supreme Court applied it to congressional districts in Wesberry v. Sanders, 376 U.S. 1 (1964), and to state legislatures in Reynolds v. Sims, 84 S. Ct. 1362 (1964). Equality in district population was valued not only as instrumental to other goals but also for itself, as Justice Black explained in Wesberry: “As nearly as practicable one man’s vote in a congressional election is to be worth as much as another’s. . . . To say that a vote is worth more in one district than another would . . . run counter to our fundamental ideas of democratic government.”As Justice Brennan made clear, the Court based its decision in large part on a particular understanding of the historical meaning of the Fourteenth Amendment and of article 1, section 2, of the Constitution. And as widely accepted as this principle has come to be, it has been subject to severe historical criticism, criticism that has never been resolved. For example, Berger (1977) claims that malapportionment was historically present and accepted before and during the creation of the Fourteenth Amendment and hence that the equal protection clause could not have implied the equal population principle (from chapter 5): “Certainly there was no disclosure that such intrusion [on apportionment] was contemplated; there is in fact striking evidence that malapportionment was an accepted practice.”