Electoral Districting, Fairness, and Judicial Review

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ELECTORAL DISTRICTING, FAIRNESS, AND JUDICIAL REVIEW

Democratic governance requires that governors be accountable to the voters. As political thinkers from Condorcet to Kenneth Arrow have noted, however, the will of the voters can only be determined through institutional channels that imperfectly reflect the electorate's preferences. Those institutional channels are controlled by incumbent officials who, unfortunately, have every incentive to resist change that may threaten their sinecure. The Constitution responds to this problem only partially by requiring a population-based apportionment of the Congress every ten years, but saying little else about the mechanisms for selecting governors.

Even the limited apportionment constraint is not self-executing. For example, the 1920 census revealed that, for the first time, a majority of the population was found in urban areas and was concentrated in the manufacturing centers of the North and Midwest. The incumbent Congress simply refused to reapportion itself out of office and the constitutional command of reapportionment was disregarded for an entire decade. The same pattern was repeated in most states, despite comparable state constitutional commands for apportioning legislative seats. By the time of the reapportionment cases of the 1960s, disparities in the population base of state legislative districts exceeded 40 to 1.

In colegrove v. green (1946), Justice felix frank-furter, writing for a plurality of the Supreme Court, forbade any judicial intervention lest the courts be dragged into the "political thicket" of apportionment. Despite the Court's invocation of institutional limitations, no other actor could address the maldistribution of political opportunity. The election of federal and state legislatures was contaminated by malapportionment and officials so elected saw no gain in disrupting a beneficial status quo. State courts proved as unresponsive as the Supreme Court, leaving underrepresented voters no channel through which to wrest back political power.

The stalemate ended abruptly with the landmark cases of baker v. carr (1962) and reynolds v. sims (1964) which, in turn, rejected the political question doctrine and announced the one person, one vote rule of apportionment. Together with their companion cases of the early 1960s, Baker and Reynolds quickly undid the most visible and egregious affront to fair distribution of political opportunity. The sweep of these cases cannot be underestimated: the reapportionment cases were arguably the most far-reaching pronouncement of judicial review since the first enunciation of that power in marbury v. madison (1803). Within only a few years, the system of representation in virtually every state in the country had been radically overhauled under an exercise of judicial power that was as popularly accepted as it was effective.

While malapportionment was the visible target, the reapportionment cases introduced a more substantive concern with what Reynolds termed "the achieving of fair and effective representation for all citizens." The early reapportionment cases reveal a fundamental concern that control over the redistricting process could distort the outcomes of a legitimate electoral process. In the first blush of its reapportionment revolution, the Court entertained the idea that numerical equality could guarantee fundamental political fairness. Over the next two decades, that illusion fell victim to computer-driven gerrymandering through which partisan aims could be achieved consistent with the equipopulation principle. The legacy of Baker and Reynolds was a readily justiciable one person, one vote principle that served as a mild constraint on partisan distortions of the political process. The promise to deliver a broader conception of "political fairness" was largely unrealized.

The limits of that legacy were apparent in Karcher v. Daggett (1983), a clear partisan gerrymander of New Jersey that was, at bottom, faithful to the equipopulation principle. The Court refused to undertake a more searching inquiry into political fairness, and instead struck down the plan under an absolutist requirement of numerical exactness among districts—even though the population deviations involved were less than the margin of error of the underlying census numbers.

In Davis v. Bandemer (1986), the Court finally unmoored the issue of political fairness from numerical mal-apportionment by creating an independent constitutional cause of action for partisan gerrymandering. However, the Court's evidentiary standard of proving "consistent degradation" of political opportunity has proven impossible to meet in light of the limited number of elections available within the decennial redistricting cycle. Unlike Baker, whose Delphic musings were quickly followed by the easily applied one person, one vote standard of Reynolds, Bandemer has yielded no progeny capable of operationalizing its efforts to constrain excesses of partisan manipulation of the political process. The unenforceability of Bandemer stands in marked contrast to the more aggressive enforcement of the prohibition on racial gerrymandering under equally uncertain constitutional standards, as evidenced by shaw v. reno (1993) and its progeny.

The Court's elusive search for appropriate judicial review of political fairness hesitates between the need to police abuses in the political order and uncertainty over how to avoid unseemly judicial immersion in pure politics. So far, the Court has resisted the appeal of Justice john paul stevens to a uniform albeit complex test for self-serving dealing that focuses on procedural irregularities and outward appearances of improper consideration. Perhaps inspired by the ready application of the equipopulation principle, the Court appears stuck awaiting the next appearance of an easily applied justiciable standard.

Samuel Issacharoff
(2000)