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

Professor Gary Stein

The Law of Democracy Fall 2016

Textbook: The Law of Democracy: Legal Structure of the Political Process Third Edition

An Introduction to the Design of Democratic Institutions

Chapter 1:

· Many experts believe that partisan gerrymandering is responsible for the current polarization of congress, because incumbents invariably win and primary elections result in nominees that appeal to the conservative wing of the Republican Party and the liberal base of the Democratic Party.

· Partisan gerrymandering is the drawing of electoral district lines in a manner that discriminates against a political party. Partisan gerrymandering challenges to redistricting plans, like racial bias challenges, allege violation of the Equal Protection Clause.

· Rules to drawing districts- Contiguity, political boundaries, compactness, and communities of interest

o Contiguity- A district is contiguous if you can travel from any point in the district to any other point in the district without crossing the district’s boundary. Put differently, all portions of the district are physically adjacent. Most states require portions of a district to be connected by more than a single point, but don’t further require that a district be connected by territory of a certain area.

o Political Boundaries- The next most common state rule is a requirement to follow political boundaries, like county, city, town, or ward lines, when drawing districts.

o Compactness- Few states define precisely what “compactness” means, but a district in which people generally live near each other is usually more compact than one in which they do not. Most observers look to measures of a district’s geometric shape. In California, districts are compact when they do not bypass nearby population for people farther away. In the Voting Rights Act context, the Supreme Court seems to have construed compactness to indicate that residents have some sort of cultural cohesion in common.

Ways to measure compactness generally fit into three categories.

1. In the first category, contorted boundaries are most important: a district with smoother boundaries will be more compact, and one with more squiggly boundaries will be less compact.

2. In the second category, the degree to which the district spreads from a central core (called “dispersion”) is most important: a district with few pieces sticking out from the center will be more compact, and one with pieces sticking out farther from the district’s center will be less compact.

3. In the third category, the relationship of housing patterns to the district’s boundaries is most important: district tendrils, for example, are less meaningful in sparsely populated areas but more meaningful where the population is densely packed.

o Communities of interest- Preserving a “community of interest” is just a group of people with a common interest (usually, a common interest that legislation might benefit). Kansas’ 2002 guidelines offered a fairly typical definition: “social, cultural, racial, ethnic, and economic interests common to the population of the area, which are probable subjects of legislation.” Alabama adds the helpful reminder that “it is inevitable that some interests will be recognized and others will not, but the legislature will attempt to accommodate those felt most strongly by the people in each specific location.”

· Being able to cast a vote is not the same as being able to cast a meaningful vote, which depends on each person’s vote being aggregated (combined) with those of other like-minded citizens.

· Practices that weaken certain groups of voters are known as vote dilution.

o Quantitative vote dilution- these claims focus on the number of people in different legislative districts.

Ie. Malapportionment of legislative bodies- exists when districts with different populations have the same representation.

· People in larger districts, typically urban unrepresented due to population.

· For a long time, malapportionment was considered to be a nonjusticiable “political question”-one that was left to the political branches of government and thus deemed beyond the power of the federal courts to decide.

· Political questions: Not all questions involving politics are “political questions”. Political questions refer to questions that are nonjusticiable because they are for the political branches of the government, not the federal judiciary, to resolve. This is also known as a “political thicket”.

o Qualitative vote dilution- these claims have to do with the quality of representation different groups of voters receive, rather than the raw numbers of people in particular districts.

Ie. Partisan gerrymandering and minority vote dilution- correct numbers but districts are apportioned to dilute ideologies.

1. Colegrove v. Green (1946) (textbook) Famous explanation of why malapportionment challenges were deemed “nonjusticiable”. Stein: Colegrove said courts cannot get involved and baker said yes we can get involved. Baker doesn’t say what we are going to do about it. The authors of textbook say it is a maddeningly difficult opinion to teach.

Procedural Posture- Appellant voters challenged the judgment of the United States District Court of the Northern District of Illinois, which dismissed their complaint against appellee government officials. The action sought to restrain the officials from taking proceedings for an election under laws governing congressional districts

Facts: The voters argued that congressional districts lacked compactness of territory and approximate equality of population.

Issue: Challenge the malapportionment of Illinois’ congressional districts-Illinois’ failure to reapportion the Congressional districts.

Held: The Court affirmed the lower court’s judgment that dismissed the voters’ complaint against government officials. The Court held that Congress had exclusive authority over the matter of securing fair representation by the states. The Court found that the basis for the action was not a private wrong but a wrong suffered by a state as a polity. 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.

“This is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens. The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity.”

Reasoning: Congress is the answer: Constitution makes textual commitment to give this issue to Congress through the Qualifications Clause. Frankfurter stated that the case was beyond the competence of the federal judiciary to resolve because it was of particularly political nature. The opinion noted that Congress had the ability to fix the problem by virtue of its power to make or alter regulations governing congressional elections, under the elections clause.

Most cited statement of this opinion: “Reapportionment is embroiled in politics; “Courts ought not to enter this political thicket.”

The Court held that Article I, section IV of the U.S. Constitution left to the legislature of each state the authority to establish the time, place, and manner of holding elections for representatives, and that only Congress (and thus not the federal judiciary) could determine whether individual state legislatures had fulfilled their responsibility to secure fair representation for citizens.

“We are of opinion that the appellants ask of this Court what is beyond its competence to grant. This is one of those demands on judicial power which cannot be met by verbal fencing about “jurisdiction.” It must be resolved by considerations on the basis of which this Court, from time to time, has refused to intervene in controversies. It has refused to do so because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination.”

*Even today, the idea that the courts should stay out of the “political thicket” is invoked by those who believe in judicial restraint when it comes to laws regulating elections and politics. *

Dissent: Stein says pay close attention to this dissent. Right to vote implies that votes should have relatively equal weight. Black argued that the Constitution required each citizen’s vote carry equal weight. Black thought it wrong that a citizen living in a district of 900,000 people had as much or less political power than someone living in a district with 112,000. (This is malapportionment).

“While the Constitution contains no express provision requiring that congressional election districts establis

olitan areas, with over two-thirds of the State’s population, could elect only a bare majority of the Senate. When a three-judge District Court upheld the plan, stressing its recent approval by the electorate, the Supreme Court granted Lucas certiorari. Plaintiff sued the state legislature and state officials alleging that amend. 7 violated their right of equal representation.

Issue: Is a majority-approved state apportionment plan that permits one house of its congress to be largely apportioned on the basis of factors other than population distribution in violation of the Fourteenth Amendment’s Equal Protection Clause?

Held Struck down in Colorado’s malapportioned state senate districts

Reasoning: On appeal, the court reversed the judgment; remanded the case for further proceedings; and held as follows: Under amend. 7 the variance between the most and the least populous house districts was minimal but the variance between the most and least populous senate district was so great that amend. 7 gave the voters in certain districts greater weight than the voters in other districts. The provisions for the apportionment of the house and senate were not severable, Thus, amend. 7 violated the equal protection clause of U.S. Const. amend. XIV. The electorate’s approval of Colo. Const. amend. 7 was insufficient to sustain its constitutionality because the voters’ right of equal protection could not be submitted to a vote.

In a 6-to-3 opinion, the Warren Court held that the Equal Protection Clause requires all districts to be substantially apportioned on a population bases. While noting that some deviation from strict population considerations may be permitted to offset minor under representations of one group or another, the wholesale neglect of population considerations is unconstitutional. The Court added that although a majority of the Colorado electorate approved its apportionment scheme, this cannot override even a single individual’s constitutionally protected right to cast an equally weighted vote. The apportionment of Colorado’s Senate rendered population considerations virtually insignificant, and was therefore unconstitutional. The Court reasoned that constitutional rights may not be infringed by a majority acting through direct democracy any more than by the state legislature.

Dissent: Justice Stewart’s dissent, joined by Justice Clark, emphasized that the people of Colorado had actually approved of the challenged state legislative districting scheme through the initiative process. This fact seemingly belied the claim that this scheme was designed to benefit incumbent state legislators at the expense of a majority of the electorate. Given the electorate’s awareness of apportionment problems and their approval of the challenged scheme, Justice Clark argued that there was no justification for federal judicial intervention. A majority of voters in every county had approved Colorado’s apportionment initiative. Justice Stewart accused the majority of “converting a particular political philosophy into a constitutional rule” and rendering most state legislative bodies unconstitutional.

Stewart emphasized that what constitutes a rational plan is likely vary from state to state. He criticized the Court for failing to take into account the distinctive characteristics of each state and instead imposing a one-size-fits-all rule: that both houses of the state legislature in all fifty states must be apportioned on an equal population basis.

Stewart’s ’s analysis is an argument in favor of the non justiciability claim.