I long for the days when federal courts distanced themselves from political and societal matters. Thanks to scotus, the federal judiciary is wrapped around the axle of several issues that do not lend themselves to judicial standards but toward personal policy preferences that, if they are the proper province of government at all, are best dealt with by the political branches of the state or national governments.
The shape, size and composition of state legislative and congressional districts is one such matter.
Congressional and state assembly/senate districts of unequal population were common until a couple of scotus decisions in the early 1960s. “One Man One Vote” (OMOV) emerged from these decisions. On the surface, who can disagree with the concept? What roils originalists is the never-ending involvement of the judiciary in political matters, and few things are more political than electoral district design.
Such is the modern judicial mess of representation, gerrymandering, and race/party considerations as applied to congressional districts, I encourage the reader to scan at least the first few paragraphs of Gill et al. v. Whitford et al., a June 2018 scotus decision. In Gill, some Wisconsin Democrats challenged a statewide redistricting plan because they felt that legislative seats held by democrats should reflect the state-wide party registration. Despite admitting, “It is a case about group political interests, not individual legal rights,” scotus kept this nonsense alive by remanding the case back to the district court “to give the plaintiffs an opportunity to prove concrete and particularized injuries using evidence that would tend to demonstrate a burden on their individual votes.”
Before OMOV, electoral districts of equal population just weren’t that big a deal and certainly weren’t the business of any court. Our colonial ancestors adopted, more or less, the English parliamentary approach of allotting legislative seats. Counties and the few towns sent an elected rep to colonial assemblies. Only twelve years after replacing monarchy with a representative federal republic, our Framers did not specify congressional electoral districts of equal populations. Given the all-important “consent of the governed” clause of the Declaration, the absence of an equal-sized congressional districts clause in the Constitution is fair proof of the Framers’ nonchalant regard of OMOV. To read otherwise into the Constitution, which the scotus did in the early 1960s, is to amend it.1 Our Constitution left the design of congressional districts where such matters had always been, with the states.2
As the US grew and industrialized in the early 19th century, large distortions appeared among the population sizes of some state electoral districts. In 1840, Rhode Island still governed itself under the 1663 English Charter of government in which towns and rural areas shared legislative power. What was a fairly equal distribution of voters (white, landowning) in the mid-17th century was very one-sided by the 19th century as European immigrants and the native population swelled the factory towns. Despite popular demands for redistricting, the rural elites in power refused. Thomas Wilson Dorr led efforts to form an extra-governmental convention to draw a new state constitution. Dual elections were held. Violence broke out. The Charter government governor declared martial law. As the Dorr Rebellion wound down in the face of superior power, President John Tyler decided not to send federal troops.
Martin Luther, a Dorrite revolutionary, was subsequently arrested by Luther Borden, a state official. At his trial, Luther argued that the 1663 Charter form was not republican, and scotus was responsible to enforce the guarantee of republican government in Article IV § 4 of the federal Constitution. No dice. In Luther v. Borden (1849), scotus found the “republican form of government” clause was not justiciable. Imagine that. Scotus recognized its proper limits and left politics to politicians and the people. Despite the violence, Rhode Islanders had to work out their differences on their own. It wasn’t up to the scotus to determine the composition of republican government nor to solve political disputes.3
In the next couple of squibs I hope to look closer at the Dorr Rebellion and scotus abuse of the 14th Amendment which gave the nation OMOV.
2. This isn’t to say Congress cannot statutorily require congressional districts of equal size. Article I § 4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.”
3. Article IV § 4: “The United States shall guarantee to every State in this Union a Republican form of government, and shall protect each of them against invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.”