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Democracy Law
Rutgers University, Newark School of Law
Stein, Hon. Gary

Law of Democracy
Justice Gary Stein
Fall 2007
                                                           
Section I: Gerrymandering
 
Karcher v. Daggett (1983) (United States Supreme Court) (Good faith effort to achieve relative equality of population is constitutional standard)
Facts:After the 1980 census, the state was entitled to 14 rather than 15 representatives, causing it to reapportion its congressional districts. The resulting plan had small deviations (seven tenths of one percent) among the populations of the districts. Appellee citizens group alleged that the apportionment plan violated U.S. Const. art. I, § 2 and the district court declared the plan unconstitutional. On appeal, the Court held that there were no de minimus population variations that were practicably avoidable but which met the standard of art. I, § 2.
Held:
Opinion written by Brennan and joined by Marshall, Blackmun, Stevens, and O’Connor
In this case the court did intervene but not on the gerrymandering issue – they invalidated the map because this was not a good faith effort to achieve population equality in violation of Art. I Section II.
Art. I Section II Standard: Equal representation for equal numbers of people
Equal means as nearly as practicable and there has to be a good faith effort to get to as nearly as practicable.
Two basic questions shape litigation over population deviations in state legislation apportioning congressional districts.
First, the court must consider whether the population differences among districts could have been reduced or eliminated altogether by a good-faith effort to draw districts of equal population. Parties challenging apportionment legislation must bear the burden of proof on this issue, and if they fail to show that the differences could have been avoided the apportionment scheme must be upheld.
If, however, the plaintiffs can establish that the population differences have not been the result of a good-faith effort to achieve equality, the state must bear the burden of proving that each significant variance between districts has been necessary to achieve some legitimate goal.   
The court deemed the plan was not a good-faith effort to achieve population equality.
The population deviation could have been reduced by shifting a handful of municipalities from one district to another, the citizens group met its burden of showing that the plan did not come as nearly as practicable to population equality.
The state tired to justify population deviations on the ground that they preserved the voting strength of racial minority groups.
The court determined the evidence did not support this assertion.
Brennan notes that any number of consistently applied legislative variances might be justified including the objective of avoiding contests between incumbents.
If there is any deviation the state has to justify and explain the deviation. 
Concurring:
Stevens, while joining in the court’s opinion, filed a concurring opinion declaring that the New Jersey plan violated the equal protection clause (rather than Art. I Section II). He believes this partisan gerrymander is the issue rather than the one person one vote standard. He says there is a way to measure when the equal protection clause has been violated – when you draw a map that deliberately disenfranchises a party the members of that party have their rights violated under the equal protection clause. 
 
Dissents:
White joined by Burger, Powell, and Rehnquist dissented, expressing the view that the population deviations in the plan were statistically insignificant and had no relevant effect on relative representation. White goes on to say that just because there is population equality that does not mean there is not gerrymandering – there could be a terrible gerrymander even if the population districts are equal. Powell,dissenting, expressed the view that the population variances were neither appreciable nor constitutionally significant.      
 
Note:
None of the courts since Karcher have focused so much on variation. If population inequality is the argument the analysis is under Art. I Section II of the Constitution based on the Republican Form of Government provision. If the argument is a person in a rural area does not have his/her vote count as much as a person in an urban area the argument is based in Equal Protection. 
The court did not have the votes to invalidate this case based on a partisan gerrymander
O’Connor is of the opinion that partisan gerrymandering is non-justiciable. 
Additionally, because of the jurisprudence in this area the claim of political gerrymandering was not brought in front of the Supreme Court.
The S. Ct. has never invalidated a partisan gerrymander like Karcher v. Daggett – this case was so egregious the court wanted to step in they just did not do so under a political germander but rather under population equality and the republican form of government provision.
The majority in Karcher is asserting a one-person-one-vote standard associated with the constitutional guarantee of the republican form of government. The Stevens concurrence is arguing this standard only stems from the equal protection clause and not Art. I Section II. 
 
In Karcher why did the district court proceed under Art. I Section II? How is the analysis different from one person one vote of the equal protection clause? This seams to be Stevens point in his dissent in Karcher.
 
Note on the New Jersey Constitution:
Art II Section I of the NJ Constitutional dictates that the committed which draws the district map has 12 members – the members are bipartisan and drawn from both the senate and the house – the process is politically motivated. There is a 13th member which is considered an independent member.
 
Note on the current NJ District Map:
The 1983 NJ Congressional District map is not substantially different than today’s district map.  The map exposed no incumbent to serious danger – the two parties got together and said lets protect the incumbents of the house and the senate and in 2002 when the map was voted on it passed unanimously. The logic is it is good for NJ to have members of the Congress that are incumbents – there is more political clout with seniority.     
 
The Court has traditionally viewed the matter of districting as non-justiciable.
 
Colgrove v. Green (1946) (United States Supreme Court) (Later overturned, but initially held that Congress had exclusive authority to secure fair representation of House of Reps, and that “courts ought not to enter that political thicket) (Case was decided right after the 2nd World War)
Facts: Three voters brought the complaint – the voters in the largest counties had votes that were worth 1/9th the votes in the small counties. The voters argued that congressional districts lacked compactness of territory and approximate equality of population.
 
Held: Frankfruter (incredibly involved in the New Deal Legislation) wrote the opinion for the Court and was joined by Burton and Reed.
The dismissal by the district court was upheld and found that the basis for the action was not a private wrong but a wrong suffered by the state.
The Court held that U.S. Const. art. I, § 4 provided that the times, places, and manner of holding elections for representatives, were prescribed in each state by the legislature thereof, but Congress could at any time by law make or alter such regulations.
Congress had exclusive authority to secure fair representation by the states in the popular house and left to that house the determination of whether states had fulfilled their responsibility.
The Court held that to sustain the action would cut very deep into the very being of congress and that courts ought not to enter that political thicket.
The duty to see to it that the laws were faithfully executed could not be brought under legal compulsion.
No court can affirmatively re-map the district to bring them into conformance with an acceptable system. The result would be to leave the state un-districted and there would be the necessity for a statewide redistrict. 
Additionally what would happen if the house refused to redistrict:
When judges are involved in controversial decisions there is a risk that if the judge goes to far the institution is compromised.
This might have been the case in 1946 but in Baker v. Carr and Reynolds v. Simms 16 plus years later the court was able to decide this case.
Dissent:
Black (Joined by Douglas and Murphy) brings this up in dissent that it would be unconstitutional if there were a law that said one person’s vote were worth nine time that of another.   J. Black says this policy violates the equal protection clause of the 14th amendment.
 
à Colgrove is the law from 1946 Baker v. Carr (1962) and Lucas (1964) are decided.
 
Lucas v. Forty-Fourth General Assembly of Colorado (1964) (United States Supreme Court) (Raises the question of who decides how democracy works – note this case is about apportionment of the state legislature; see also Harlan’s dissent; see also, Steins note)
Facts: There were two amendments for apportionment which were to be voted on based on referendum. 
The referendum approving Amendment 7 passed in every county in CO.
The main difference between Amendment 7 and Amendment 8
Amendment 8 had both members of the CO legislature based on population were as amendment 7 the senate was based on population and the house was based on population as well as geography. 
The plan led to a situation where votes counted more in rural areas.
To properly apportion the districts by population numerous rural districts would have to be combined that did not have like interests and the rural communities would not have clout in the legislature to represent their interests. 
There was something about amendment 8 that was unappealing – if there was more than one representative of the district the vote would be at large and not by district. 
The citizens of CO made a conscious choice to say it is better for the rural counties to have a little more to say than the more populous areas.
It was the people that chose this method and not some diplomats in the state of NJ making this case distinguishable from the situation where the legislatures are trying to keep their power and pass these apportionment bills rather than allowing the people to decide. 
This is not as clear cut as when the legislature continues to not reapportion to keep their power.
Held:
Warren wrote the opinion for the court joined by Black, Douglas, Clark, Harlan, Brennan, Stewart, White, and Goldberg. 
In this case the US Supreme Court invalidated the plan because it was not representative of the one person one vote standard of the 14th Am. Equal Protection Clause.
It is important to note Reynolds v. Simms was decided on the same day which held that every legislature must be apportioned according to the population. 
Reynolds v. Simms invalidated every state apportionment method in the country – essentially Lucas tested Reynolds.
Reynolds v. Simms directly applies to those states that have not redistricted for years.
At the time Lucas and Reynolds were decided it is important to note states were not reapportioned for a long time – reapportionment was delayed because incumbents wanted to protect their positions.
The court is essentially saying we don’t care that the people of CO voted for this system – the general population can’t take away constitutional rights – personal rights are to be protected against the will of the majority.
Warren uses West Virginia v. Barnett as a basis for this finding. Barnett was about students saying the pledge of allegiance – Jehovah’s witnesses brought the suit – the majority held it was unconstitutional for kids to say the pledge of aligiance in class.
You can’t diminish one person’s vote consistent with the Equal Protection Clause.
Dissents:
Harlan (Wrote his dissent in Reynolds –both cases were decided on the same day) dissented on the ground that state legislative apportionments were wholly free of constitutional limitations except the guaranty to each state of a republican form of government, which cannot be the foundation for judicial relief. The Equal Protection Clause was never intended to inhibit the states in choosing any democratic method they pleased for the apportionment of their legislatures. (It is unclear how Harlan is dissenting in Reynolds and still concurring in the Lucas opinion argument he makes in dissent in Reynolds is not consistent with the majority’s holding in Lucas).
 
Stewart joined by Clark, dissented on the grounds that a state legislative apportionment scheme is constitutional if it is (1) rational in the light of the state’s own characteristics and needs, and (2) not such as to permit the systematic frustration of the majority’s will; and that the Colorado apportionment provisions were valid under this test.Justice Clark wrote a separate dissent stating further that the Colorado apportionment should not be held invalid, particularly because of (1) the frequency of reapportionment in that state, (2) special geographic and economic considerations justifying the present apportionment, and (3) the necessity for granting some latitude within the limits of rationality for the apportionment of seats in the state senate, since the state house of representatives was apportioned on a population basis.
 
Stein’s note: The thing that makes the Lucas case so hard is the fact that the people of the state of CO decided to implement No 7 which did not apportion strictly based on population. At the other end of Lucas and Reynolds spectrum is how poorly the one person one vote apportionment has worked – it really invites gerrymandering. The New Jersey congressional apportionment was significantly much better than the apportionment in Lucas if you are looking at the variations between the largest and smallest districts- although the population is right the Karcher Daggettt map is ugly – it is heavily gerrymandered and it is obvious the map was drawn to protect congressmen.      
 
Note on Baker v. Carr:
J. Frankfruter and Harlan make an impassioned argument in Baker v. Carr as dissenters that this does not violate the equal protection clause.
They explain the status of apportionment when the fourteenth amendment was ratified and astonishingly no state apportioned their state legislature based on population. 
Even more astonishing after the passage of the Equal Protection clause the states did not apportion their legislatures or congressional districts based on population. 
This begs the question is the Constitution static or living a breathing. 
 
Voting and the Constitution
The Constitution does not say a lot about who votes – when the constitution was adopted senators were elected by state legislatures and the citizens did not directly have a say. 
Per the constitution the House of Representatives – who ever can vote for the lower house of the state legislature can vote for the federal legislature. 
At the time the constitution was ratified there were all kinds of rules the states had in place to restrict those people that were allowed to vote.
ie. Only property owners could vote, women were not allowed to vote… 
One of the fascinating arguments against the equal protection clause requiring one person one vote is the 3/5th compromise contained in Art. I Section II paragraph 3 of the constitution. 
From a historical prospective it could be argued that the judgment the framers made giving two votes to the Senate is inconsistent with the idea that the right to vote is so coveted that the one person one vote standard will not apply to the federal constitution. 
In Lucas Warren disposes of the three-fifths compromise argument by saying that it was the price of creating a unified country and is not applicable to this situation.           
Warren argues if the court is not able to step in to correct apportionment the 14th Amendment is toothless.
In Reynolds Harlan’s dissent looks to the historical context of the fourteenth amendment to dete

ust be written in a language other than English when the 5% of the population speaks only one language and it is not English.                       
 
Harper v. Virginia State Board of Elections (United States Supreme Court) (1966) (Poll Taxes are held unconstitutional)
Facts: The state of Virginia had a poll tax of $1.50 in 1966. State residents filed an action against voting officials, seeking a declaratory judgment that the tax violated the Equal Protection Clause. (It is important to note that the 24th amendment was already passed and made poll taxes unconstitutional in federal elections – this case was only decided because Harper is a state election).
 
Held: A majority written by White and joined by Douglas, Clark, and Brennan held the state violated the equal protection clause whenever it made the affluence of the voter or payment of any fee an electoral standard. 
Voter qualifications have no relation to wealth or to paying or not paying a tax. 
The use of wealth or payment of a fee as a measure of a voter’s qualifications was to introduce a capricious or irrelevant factor. 
The majority rejected the state’s argument that the poll tax is synonymous with charges for a driver’s license or other state provided items or services. 
The right to vote is implicit in the first amendment although not explicitly stated in the Constitution. 
Distinguishable from Lassiter ability to read and write indication of the educated ballot where as the Poll tax is not an indication. 
The equal protection clause is not shackled to the historic notions of equality and treatment – for the purpose of the equal protection clause we change. 
For the first time the court is suggesting voting is a fundamental right. Douglas did not call voting a fundamental right in Lassiter – this case really shows the evolution of voting rights.
 
Dissent:
J. Black’s dissent – there is a rational basis for the poll tax – a person with more money has a greater interest in the election. People are more likely to pay taxes if payment is a prerequisite to voting. Equal Protection Clause itself is the product of a person’s desire to amend the Constitution. Congress has the power to pass legislation to effectuate the 14th amendment Equal protection section 5.
 
Harlan & Stewart dissent – the majority’s holding departed from long-established standards governing the equal protection clause and there is a rational basis for poll tax as voting qualification.
 
Kramer v. Union Free School District No. 15 (United States Supreme Court) (1969) (Evolution of strict scrutiny; bachelor living with parents sued b/c he could not vote in school board elections)
Facts: A NY statute limited voting for school board officials to those who could vote in state or federal elections and either owned or leased taxable real property or had a child in the school system. A bachelor who neither owned nor leased taxable real property filed suit in claiming the NY statute denied him equal protection of the laws.   The age, residential statutes in the school district and citizenship in the US requirements are not challenged by this case. The requirements that school district voters must (1) be citizens of the United States, (2) be bona fide residents of the school district, and (3) be at least 21 years of age are not challenged. Appellant agrees that the States have the power to impose reasonable citizenship, age, and residency requirements on the availability of the ballot. 
 
Held:
A majority written by Justice Warren and joined by Black, Douglas, Harlan, Brennan, Stewart, White, and Marshall held that the NY Statute did not meet the exacting standard of precision necessary to survive strict scrutiny. 
Any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. Chief justice Warren’s majority was applying strict scrutiny. 
The classification must be tailored so the exclusion of the plaintiff is exactly tailored to meet the ends necessary. 
The classifications include many individuals that are only remotely interested in the outcome and excludes others that have more of an interest. 
Although information is sent home with kid’s parents – meaning the parents of school children would be more informed than non-parents and those who are paying taxes have an interest to learn – the court still holds this is not a sufficient justification. 
 
Dissent:
J. Stewart dissent – A legislative classification is invalid only “if it rest[s] on grounds wholly irrelevant to achievement of the regulation’s objectives.” There is no difference between the constitutional status for poll tax in Harper and the literacy test in Lassiter. The statutory classification involved here is clearly valid.
 
Note on Evolving Level of Scrutiny:
Lassiter might have come out differently if decided under strict scrutiny – These three cases show the Congress as well as the court are expanding voting rights. Lassiter – rational relationship standard; Harper and Kramer – Strict Scrutiny.                                                                                    
 
Missed class – September 11, 2007 – Fill in Outline (See Jennifer’s Notes Below)
 
9.11.07
 
[last week more on Ch.2]  
left off at about p. 66 w/ where homeless people and college students reside
 
Nonresidents cases:
–          These cases seem to divide court
–          tenn statutes allowed nonresident, property owners to vote in general elections
o   court applied rational basis (and not strict scrutiny) bc it expanded rather than limited the right to vote
o   declared charter provision invalid (not the state law)
–          Savannah Beach case
–          Holt v Tuscaloosa (Rehnquist uses rational basis to okay extra-territorial regulations without those people being able to vote; Brennan believes in strict scrutiny; major divide)
o   People who live on fringe of main town wanted to be able to vote
o   Either extra-territorial enforcement of police and sanitary regs is illegal, or else let us vote
o   Court said lots of towns do this and though it is probably not the best way to do this, it is, under rational basis, ok
o   Rehnquist applied rational basis; Brennan applied strict scrutiny
o   Court hasn’t decided which is the test/scrutiny level applicable yet
o   Court divides 6-3 bc they find these issues troublesome
 
Overseas Voters:
–          must allow overseas military personnel to vote in federal elections