Congressional Redistricting: A Public Information Monograph (American Bar Association)

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CONGRESSIONAL
REDISTRICTING

A Public lnformotion Monogroph

AMERICAN BAR ASSOCIATION
Speclol Commlttee on Electlon Low ond Voter Portlclpotlon



Addltional Publlcetlons of ABA Speciel

. Commltlee on Electlon lrw and Virter Pertlcipation

The Vice Presidency. Proceedings of Symposium held December 1976, in New York City.

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CONGRESSIONAL REDISTRICTING

ABA Speclal Committee
on Election Law and Voter Particlpation

John D. Feerick, Chalrmrn 1979-t0
Steven J. Uhlfelder, Chrlrmrn f9m{l
Cherles G. Armstrong
Judlth Areen
Mrrvln S. Arrlngton
Joel L. Flelshmen
Scott M. Matheson
Abelerdo I. Perez
Dele W. Rerd, Jr.
Ellssa C. Llchtensteln, Steff l)lrector

DIVISION OF PUBLIC SERVICE ACTIYITIES
AMERICAN BAR ASSOCIATION

WASHINGTON, D.C. JUNE 19El



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C.opytght @1981 Arncrican Bar Association

Ubrrry of C,ongrcsr Caraloe Card No. gXD,l8t
S@al Conmitree on Elcc{ion Law end yotcr participqtion
Coprcssional Rcdistricting
Wuhfuion, D.C.

Acknowledgements

Appreciation is hereby expressd to Elena Cohen, former Research Assistant,
and to Daniel L. Skoler, former Director of the Public Service Activities Divi-
sion, for their principal authorship of this monograph. Elissa C. Lichtenstein,
Staff Director of the Committee, provided invaluable assistance in editing,
organization and publication, and Administrative Assistant Prudence B. Kestner
in manuscript preparation. The Committee is also grateful to its Legislative
Assistant and advisor, Craig Baab, and to Bruce Adams and Bernard Grofman,
non{ommittee authorities on congressional redistricting, for valuable review,
critique and advicc on msnuscript drafts and content.



II.

TABLE OF CONTENTS

PREFACE

I. INTRODUCTION
How Congressional Seats are Now Allotted .... I
ABriefHistoryofRedistricting... ..... I

THE CURRENT REDISTRICTING SYSTEM ......... 3

Gross Population Inequality: Past Injuries Healed . . . . . 3

Current Redistricting Problems: The Gerrymander .. ...... 3

Why Gerrymandering Harms . .. . .. ' . 5

AnOverviewof ReformProposals ,,..,.7
Comrnon Cause Proposal: Model for State Self-Improvement . . . . . 8

Federal Cuidelines with Redistricting Commissiotr Requirement . .. 8

Federal Guidelines Without Commission Requirement . . ... 8

THEISSUES:ARESTANDARDSNEEDED? ......... 9
To What Extent Should Standards be Articulated? .. . . . .. . . . 9

In Defense of Standards .... . . 9
In Opposition to Standards - Encroachment on States' Rights . . . . .10
Absence of Standards Throughout the Nation's History . . . ' l0
Encouragement of Litigation ........10
Standards: Conflicts or Priorities? . . . .10

Examination of Specific Standards ......11
Population Equality ....11
Politicalsubdivisions .........12
ContiguousTerritory ..,......12
Compactness .........13
"Antigerrymandering" Standards ....13

Other Considerations: "Affirmative Gerrymandering" Practices . . . . . 15

Time Provisions .. . ,,. .17

THE ISSUES: WHO SHOULD MAKE THE
REDISTRICTING DECISIONS? ........18

WhoShouldbetheRedistrictingRulemakers? ........18
ContentionsastoCongressionalAuthority .........18
Contentions as to State Legislative Authority . . . . . . .18 

t

Who Should bethe lnitial Apportioning Authority? .........19
Accountability Provisions: Who Should Judge the Plan? . ....23

V. CONCLUDING OBSERVATIONS . ,....U

Appendix A: Important Dates in Redistricting History . . . . . .27
Appendix B: American Bar Association Resolution on Fair Redistricting . .30
Appendix C: ABA Special Committee Report on Redistricting ... ........32
Appendix D: Further References .. . .. .36

III.

IV.



PREFACE

The American Bar Association Special Committee on Election Law and Voter
Participation is now entering its second decade of service as one of the Associa-
tion's major public service undertakings. Its work has been marked by a dual
tradition of policy leadership and guidance to the ABA and of education for the
bar and public on contemporary issues in election system improvement. The
former is reflected in a number of formal ABA policy positions (popular election
of the president, vice-presidential selection, voter registration by mail, amend-
ment of the Federal Communications Act's "equal time" provisions, campaign
financing reform, an independent federal election commission, and a presidential
study commission on declining voter participation) by which the bar has con-
tributed to the national dialogue and endorsed specific proposals for election law
reform. The latter has borne fruit in a variety of conferences, symposia, and
publications on current electoral system problems.

This monograph is a new addition to our public education tradition. It ex-
plores the important issues of congressional reapportionment theory and practice
which still face the nation notwithstanding the "one person, one vote" giant step
of the early l96Os. The message is particularly timely with our federal system on
the brink of the major redistricting initiative that comes with each decennial cen-
sus, and will be an important determinant of the fairness and equity accorded in
the decade ahead of all citizens and all segments of society in their representation
within the Congress of the United States.

The monograph was designed with a non-technical approach in mind. Despite
its character as a "primer," informational appendices and literature references
will be found to direct readers to relevant case arrd statutory law, analytical
studies, and historic evolution and thereby permit more intensive study of the
problem.

Fair redistricting is not just a priority of our Special Committee. It is a com-
mitment of the entire American Bar Association. In 1979, the Association's
governing body, its House of Delegates, in considering a variety of voter par-
ticipation initiatives, formally supported the enactment of legislation that "pro-
vides lbr fair redistricting pursuant to the 1980 census without regard to partisan
advantage." While no specific method of reapportionment was endorsed at the
time, the concept itself was engraved in formal Association policy. Specific
measures were weighed and explored at a conference cosponsored by the Com-
mittee in June 1980 with the National Science Foundation and a distinguished
group of academics and practitioners at San Diego, California.*

tSee conference volume, Representation ond Redbtricting in the 198k, Crofman, Lijphart, McKay,
Scarrow, eds. (1981, forthcoming)



The Committee would, therefore, welcome views, reactions, and suggestions
ffom all readers of this handbook, whether or not Association members, on how
best to ensure implementation of the "fair redistricting" concept. If the pamph-
let stimulates and informs this kind of dialogue-in bar, civic, and other forums
of concerned citizen activity-it will have well served its purpose and the cause of
good government.

Washington, D.C.
June l98l

John D. Feerick
Steven J. Uhlfelder

Charles G. Armstrong
Judith Areen
Marvin S. Arrington
Joel L. Fleishman
Scott M. Matheson
Abelardo I. Perez
Dale W. Read, Jr.

I. Introduction

Fair and equal representation, a cornerstone of the American political system,
depends largely on the fairness of the process for selecting representatives. One
of the most important factors in this process is the drawing of congressional
districts from which members of the United States House of Representatives are
chosen.r State legislatures traditionally have been responsible for establishing
district lines.

Alterations in congressional district lines after the 1980 census promise to be

extensive. According to its 1980 figures, the Census Bureau estimates that
population movement among states will cause about 14 states to gain or lose seats

in the House of Representatives. This shift, combined with population move-
ment within states, may force virtually all of the 435 existing district lines to be

redrawn. Even though redistricting inequities have been reduced in the past two
decades, under the 'one person, one vote'mandate, many citizens are dissatisfied
with current methods of reapportionment.

How Congresslonal Seats rre Now Allocated

No matter how small its population, each state must have at least one represen-
tative in the House of Representatives. The remaining 385 seats are to be allotted
so that each representative speaks for approximately the same number of people,

thus attempting to provide each person with an equal share of representation in
the nation's lawmaking processes. r*

The population figures used are those provided by the decennial U.S. census.

The President transmit's these figures to Congress during the first week of the
first regular congressional session after the census. Within fifteen days after
receiving these figures, the Clerk of the House settds the chief executive of each

state a certification of the nurnber of representatives to which the state is entitled.
Each state, according to rules in its state constitution or statutes, then creates the
same number of districts as the number or representatives to which it is entitled.
While states are required to redistrict every ten years, no formal time limit exists
for the completion of the redistricting plan.

A Brief Hlstory of Redistrictlng***

While state legislatures traditionally have been the main bodies responsible for
redistricting, the Congress and the courts have played varying roles in the line-

fThe drawing of tegislotive districts (those from which representatives to a State House or Senate are

chosen) is atso central to fair representation, yet entails certein issues separate from those involved in
congressional retlistricting. For a more detaiied discussion of legislative redistricting, se Towird o

System of Fair ond ElJeclive Representotion, Common Cause (Washington, D.C., 1977)' Unless

otherwise indicated, "redistricting" will refer only to congressional linedrawing.
rtU.S. Constitution, Article l, Section 2, clause 3; 2 U.S.C. $ 2a.
..r"Reapportionment" refers specifically to distributing seats in established units of Sovernment,
while "redistricting" signifies line-drawing to establish districts within these units. States receive an

apportionment of congressional seats, after which districts are drawn. Both terms will be used inter-
changeably throughout this monograph to discuss how congressional seats are distributed within each

state,



drawing process. congress was sirent on the issue before lg4r. However, sincethat time, it has enactecl several pieces of legislation to alter trre-congressionalreapportionment system, with congressional-involv.tn.ni p.uling lnin. ."rrvtwentieth century. The-current congressionar redistricting r"r" *", p?rred in 1929.It con-tains very few directives buidoes ,ii,a"t. tt rt ,".pier.nt"tir., u" appor-tioned every ten years according to tt. then most recent U.s. decennial census,based on rhe principre.o-f equar-rep..r"oirtio, (see Appendix A). Except for anact passed in 1976 which banned at-large erections ri.e., ttos. irhere the entirestate votes for alr seats to which the state is entitredi, c;";ress r,", not recentryim-posed any redistricting rules on the state legislatuies.* "
until 1962, in the randmark case of Bakeri. Carr,369 u.s. rg6, the courtstrailed far behind state. regisratu-r_e1 and Congress in their inrotr..eni with reap_portionment.rt Indeed, in the 1946 case, cilegrove v. Green,32g u.s. 549, theSupreme court asserted that it had neither a judiciar r.roo^i6iiir, *. 

" 
.igr,iioaddress the redistricting question, on the grlunds ttrat'it was a poiiticat issue.Baker v. carr, however, offered a dramati-c departure from the pi."ious stan.eof judicial "laissez-faire," in ruling that federal tou.ts ao tr"re ruir,oilty to juage

whether. districts are apportioned fairry. Some controversy, however, stiil existsconcerning the appropriate roles of congress and the couris in this area.

12 U.S.C. g 2c.

"See Appendix A for summaries of major cases affecting redistricting.

2

lI. The Current Redistricting System

Gross Populalion Inequatity: past Injuries Heeled

Despite the requirement that congressionar districts be redrawn every ten yearsso that each district has..approximitery the same population size, many stateshave had congressionar districts whose popurations'variJ ai"."ti"rily. A studyby the Brookings Institution revealed tii"[ in ].962 half of rhe states with morethan one- congressional district (21 states out of 42) had constituencies in whichthe smallest district contained less than tifiy per cent of the population of thelargest district.*
In the 1964 case of Welbeyt v. Sonders,376 U.S. l, the Supreme Court con_demned this gross inequity. It voided Geoigia,s redistricting pran, deciding thatthe.pop-ulation disparities among .org..rriorrl districts ;ril;l Ine spirit orArticle I, section 2 of the Constitutionl Articurating *r,at i, r..qrentry referredto as the "one person, one vote" or "as nearry aJ p.a"ti.uui.i-siandard, thecourt wrote that "as nearly as practicable, one lperson'sl vote in a congressionarelection is to be worrh as much as another's." Forro*ini ilr. i6zo *aistricting,most districts adjusted to this mandate: 402 of the a3icongrerrionur districtswere within I per cent of the districr popuration 

"r"rr!. i.i-it "ii'rt",..
Current Redistrlcting probtems: The Gerrymander

Even though major inequities in the area of popuration disparity have beengreatly reduced, redistricting reformers contend that substantial and avoidableinjustices remain. These detects resurt rargert irom the p;;;ti*;,t.i.y*rna..-
ing."

llhat is "Gerrymonderinq?" rn rgl2, the Massachusetts state regisrature cre-ated a dragonlike district to benefit the [iemocrarrc party over which then Gover-nor Elbridge Gerrv had tremendous influence lsei riiure /r. Dr"*i;g a head,claws.and.winSs on a picture_of.the district, painter Gilbert stuart exclaimed thatit looked like a salamander. Editor nenja-ii iussefl, however, noi.J that .,ger-
rymander" would be a more appropriate name, in-.,5ono.,,'ofirra goua.ro..
Since then, the term has generairy referred to the d.a*;n! or oist.i"i boundarylines for the purpose of giving some individu"l o. g.oup a poriticar advantage. Itis important to note that gerrymandering is aitectatrte in teims of itiimpacr, notnecessarily by the shape of the district.ir
. .Gerrymandering typically involves the use of one of two techniques to dilute theinfluence of "minorities" in the electoral process.r*r It may concentrate minority

hilffLx: ?.t'.w" Districting: The Issue oJ Equat Representotion,(Brookings Institurion:
ttA strangely shaped district may, for exampre, merery be forowinc nalurer rnndor.h]

tr*:[iT.lJ*t"*ii;i""_, 
,.Representarion 

"", ijllli,.i.,,liJil1f: ffilT]ii,?lrlT,,,l#;
"'ln this discussion, "minority" refers.generally lo any group whose influence the line-drawers areattempting to reduce. Thus. ir can inctride r".irr 

"nJ'.ir,nic 
minoriries, cha[engers, mcmbers ofminoriry facrions wirhin the party rhar is in conirotii,i. ,,",. regisrarure, and minoiiry parties.

3



Reprinted from Congressionol Districts in the t97k (2nd Ed.) wirh permission of Congressionol
Quarlerly.

strength in a few districts, thus wasting minority votes. To illustrate, a state with
ten districts and a minority comprising 30 per ient of the state's population dis-
tributed as shown in Figure 2 could draw district lines in at leastiw'o ways. oneof these would be less beneficial for minorities. For example, instead of the
minority comprising 75 per cent of the constituency in four districts (as in Figure
3), gerrymandered districts might be drawn so th;t minorities would constitute
100 per cent of the population in three districts (asin Figure {,;, thus reducing the
changes_ of a minority candidate being erected in othlr aisfiicts. lt should be
noted, however, that the courts have rarely concluded that this minority-
concentrating technique violates minorities' constitutional righis. 

-

Figure I
The Original Gerrymander

Figure jFigure 2 Figure 4

Note: j_ 
denotes minority

A second .technique is the conscious dilution of minority strength. By this
strategy, aminority group that is concentrated in one g.ogr"phi. area'(and which
thus would comprise a majority if that area were a congressional district) would
be split among many districts, losing a majority voice i-n any.

4

Wy Gerymanderin^g Harms.,Many individuals denounce any type o[ gerry_mandering. Indeed, a former director of the Nationar Mild;iiiigue,s regis_lative redistricting information service contends that the evils which are meanr tobe alleviated by requiring popuration .qu"riii are simpry accomprished throughgerrymandering:

It was inevitable that this gerrymandering problem would becomeworse' not better, as a direct result of ttri supreme c;rr, ruringsregarding popuration e.quity during the '60s and i70s. me incentire rorresort to the gerrvmander was much ress when the hgisdtil;;;ii easrtyaccomptish the same thing bv simpry making aistricis oi*iiaiil'ilr"."ntpopulations.r

In addition to general condemnation, however, the following specific chargeshave been leveled at gerrymand"ring p."cti".r,
It relucgs the opporrunity lor ethnic minorities to be etected: thepreviously described. techniques have often contributed to minorityunderrepresentation in congiess. while' biacks *;p;il;p;;oxi'matety
13 per cent of the nation's population, ress than l i.. ."ni'oiJongr.r-sional represenratives weri 6rack 

"i tt. beginn-ing ,i tr,.-isst.Hispanics constitute angro^xipalgty r pei cent of the popuration, butmake up only r per cent of the Housetf Representativls:----'-''
Ityduys the opportunityfor poriticat minorities to be erected:membersof parties not controilingiheitate legisraiures, or members of the ma_jority party who break with prevailini p".ty views, arso have faflen vic-tim to the gerrymandering sword. noiii";, 1972 rcapportionment plan,for example, resulted in Democrat, *i*ing ?r*ru;;;;;';; 

"rr_gressiorral seats, while receiving onry 53 per cent of the statewide vote.rfAnd at least two recent poriticit mirericrs n"r. L""n tirJ-t"rgiioiil,"i.
own party's gerrymandering initiatives. In 1975, ct icago;s Semtraticboss, the late Mavor Richaid.oarey, iroposea'"n oai-rmp.J Jirtri"tplan, remarkabry simirar to- ttre oiigil"i iv"rr""t ur"ti, g.'.rJ-iia..,
which was- narrowty rejected by the-Democratic<ontrore? ri"i"l.gir-lature, and which many observirs ferr 

",ar 
oerign"a io-*""r.n'"r, or,-spoken Dhley opponeni lDemocrat auner t"tikva) who went on to winthe contested congressionar seat (see Fr! ir" sl. rni r gzz carifoini"i"up_portionment apparently 

_was designed,""rorig ott ei rerr*r, a i-r.",incumbents of both parties. yet, ii *a, n"ia.signea to benefit a minori-ty among incumbents, a riberar, anti-war RepuSrican tpaur rr,tclloskevlwho nevertheless was reelected.
It unduly protecrs incumbent seats: this reduces competition and enablesparties to fierd weak cand.idates. I-f potentLl candiaa'te;p.;;;ir; it u, in-cumbents are drawing districi ii";;;;rrre their own reelection,clallengers may be ress titety to enier it. r""". In 197g, , per cent ofthe winners in congressionar iaces r"n ,*ppored. Moreover, even new-

'congressionol Anti'cerrymandering Act o! t979; Hearings on S.i96 Before the scrate committeeon covernmental Affairs. xtt congr.si, rrr s*i.-ib? trczcl cli;ini'J'liiui",, soya,
9.I11rl!.r circd as t99 Hearings).

"199 Hearings at 50 (statement of David Cohen, prcsidort, Common Causc).



Figure 5

Reapporlionment Plan
(Illinois Tenlh Congressionol District)

comers who enter may confront additional barriers where lines have
been consciously rearranged in an incumbent-protecting fashion. Plans
designed to protect incumbent seats usually achieve their goals. In 1978,
over 95 per cent of congressional incumbents seeking reelection were
reelected. r

It discourages voter participotion' redistricting reformers argue that
gerrymandering disenfranchises voters not only directly, by discourag-
ing challengers from entering congressional races, but also indirectly,
by discouraging other campaign involvenrent. For example, odd-
shaped districts covering broad geographical areas increase the dif-
ficulty for both candidates and canvassers of undertaking neigh-
borhood and door-to-door campaigning. Perhaps more importantly,
gerrymandering may be contributing to the unfortunate decline in voter

tThis is not to imply that preservation ofexisting district lines is necessarily undesirable or harmful.
From the incambent legislator's perspective, a familiar constituency nray bc valuable if he or she is to
represent constituents' views accurately.

EVANSTOI.T

NORTHFIELD

CHICAG0

participation.t While voter turnout in House of Representatives races
was about 440/o in 1970, it fell to approximately 3590 in 1978. Voters
may reason that since gerrymandering has predetermined election re-
sults, their individual ballots hardly count. Furthermore, voters may be-
come confused when they reside in a "strategic location', which is re-
located for each major election, depending on the line-drawer's goals. A
former Congressman from New York complained:

I was redistricted in the sort of ongoing flow that occurred
sufficiently often that I found that I ran for Congress three
times from the same house but each time I was in a different
congressional district. And the third time it was impossible
for me to gct from my house to the rest of my district
without paying a toll.rr

In addition, once candidates are elected, they might show more respon-
siveness to the needs of the linedrawers who created districts favoring
their candidacies than to those of the citizens who elected them.

An Overview of Reform Proposals

while there exist defenders of the current system,rrr advocates for improving
reapportionment cite the significant injustices just discussed and demand a mori
equitable system. The call for reform is bipartisan and nationwide.

various groups and opinionleaders in the nation are demanding that the
redistricting system be improved. The washington post, the woll street Journal,
and the Boston Globe all have run strong editorial messages stressing the need for
change in reapportionment procedures. some states have adopted modifications
on their own in rirent years. California, Colorado, Hawaii, Iowa, and Oregon
have adopted strict redistricting standards, and colorado, Hawaii and Montana
have established redistricting cornmissions. organizations expressing support for
redistricting reform include the American Bar Association, the NationalAssocia-
tion for the Advancement of colored People (NAACP), the Mexican American
Legal Defense and Educational Fund (MALDEF), and the National Municipal
League. The League of women voters has mounted a public education cam-
paign on reapportionment issues and options and has left its individual state
leagues free to consider and support corrective options that best meet local needs.
An estimated ten to fifteen state leagues have endorsed reapportionment com-
missions. A common Cause questionnaire sent to congressional candidates in
the 1978 elections showed that 271 representatives favored federal redistricting
standards, with only 4l opposed.

tSee ABA Special Committee on Election Reform. The Dbappeorance ol the American Voter
(Washington, D.C., 1979).
r'1979 Hearings at 312 (statement of the late Allard Lo*enstein, Representative from New York's Sth
Congressional District, 1968-70).
tttE.g., the National Conference of Stat€ Legislatures, (NCSL) a national organization of appror-
imately 7m state legislators and their staffs.



Examples of the major national initiatives are:

The Common Cause Proposal-A Model for Slote Self-Improvement. This
public interest group, a grass-roots "good government" organization with more
than 225,000 individual members and offices in over 45 states, has developed a
model amendment to state constitutions with an accompanying act which states

can choose to adopt. The two enactments (constitutional amendment and
statute) apply to both legislative and congressional districts and are designed to
balance stability with flexibility. The Common Cause plan proposes among other
things:
r a commission to draw district lines. Commissioners (five in number) must

meet certain qualifications for "impartiality;" Four are appointed by specific
members of the state legislature, and the four select a fifth to serve as Chair;

o redistricting standards. These arb rules which the initial apportioning author-
ity must follow in its plans. It is suggested that districts embrace approximate-
ly the same size population, respect political subdivisions, be composed of
contiguous territory, be compact, be drawn so as to avoid giving any group or
individual political advantage, and be drawn so as to avoid diluting minority
voting strength;r

. accountability provisions. ln addition to requiring public hearings on
redistricting proposals, the plan provides the opportunity for qualified voters

to challenge the plans, and for federal courts to adjudicate these claims.

Federol Guidelines with Redistricting Commission Requiremenr' Senate Bill
596 and its House companion H.R. 2653 (96th Congress, lst Session) embody
this approach. Although the bills differ slightly from each other, both support
the tripartite Common Cause approach: commission-standards-accountability.
The primary difference lies in the Common Cause models' presumption of state
action which gives the individual states a choice on implementation, unlike the

congressional bills, which, once enacted, require states to adhere to their provi-
sions. On the other hand, because the Common Cause Act is meant to be a state
statute, it contains many specific provisions which the congressional options
omit. The congressional bills afford states the ofportunity to decide individually
on a number of "specifics " in the way in which they will adhere to the more
general federal mandates.

FederatGuidelines without Commission Requirement H.R. 1516 and its com-
panion in the Senate, Amendment23T (96th Congress, lst Session) offer another
reform approach. Although the two bills vary slightly, both are based on sugges-

tions from the House Wednesday Group.rr The major differences between these

bills and the previously mentioned congressional proposals is that H.R. l516 and
S. Amendment2ST do not recommend the establishment of commissions, as the

sponsors feel that the choice of approach in ensuring equitable application of
federal standards should be left to the states.

Rather than address the totafit;", u*rr,n, and weaknesses of each major
proposal, it may be more valuable to review individually major components or

'For further discussion of standards, see Part lll.
..Comprised of thirty-two moderate to liberal Repdblican members of the U.S. House of Represen-

tatives.

concepts. As might be expected, many proposals share some provisions and
differ on others. The following discussion, therefore, takes up the key remedial
options and touches on the significant arguments from various perspectives in an
attempt both to foster a better understanding of the issues and to facilitate
informed decisionmaking. The discussion treats two major issues: who should
make the decisions, and what role might standards play in this process. Our
intent is to illuminate rather than to advocate particular stances on specific
provisions.

III. The Issues: Are Standards Needed?

In examining the redislricting process, several basic issues must be addressed.
One fundamental set of questions revolves around the need for and character of
standards to guide and order the development of reapportionment plans.

To What Extent Should Stnndsrds be Artlculrted?

Some groups claim that the most important aspect of redistricting reform is the
establishment of specific rules which must be followed when clrawing congres-
sional district boundaries. Indeed, if fair redistricting standards are made so ex-
plicit that line-drawers cannot abuse their discretion in interpreting theIn, the
matter of who has the responsibility for applying the standards may well become
less important. Yet, even those endorsing clear standards may disagree about the
extent to which certaiu standards should be defined by the law. The narrower the
definition, the less flexibility is available to accommodate factors affecting the
fairness and soundness of plans which are not yet in existence when the definition
is formulated. Moreover, as might be expected, some electoral experts are op-
posed to explicit standards, particularly federal ones.

In Defense ol Standards. A 1979 editorial inthe Woshington Post stressing the
need for standards (particularly to provide courts with reviewing guidel;nes) em-
phasized one of the common rationales for this approach: "Since the federal
courts are already deeply into this 'political thicket,' [of judging the fairness of
redistricting plansl it might be useful to them-as well as to the cause of ending
the more indefensible forms of the gerrymander-for Congress to spell out how
it believes congressional district lines should be drawn."* lndeed, many have
viewed standards as perhaps the most itnportant agenda items in the fair
redistricting "portfolio." As a former AFL-CIO advisor on reapportionment
matters and the plaintiff in Wells v. Rockefeller has stated:

The most effective way to prevent gerrymandering is not to . . . vest
special power in some judicial umpire or even in a nonpartisan author-
ity. Rather it is to make sure that whoever draws the district lines cannot
do so in a manner calculated to bestow special advantages on any . . .

group . . . And the best way to do this is to establish firm, explicit . . .

ground rules.*r

'|lashinglon Posr, June 21,1979.
..Wells, 'Aflirmotive Genymandering'Compounds Districling Problems, National Civic Review
(January 198) at 17.



Equity, uniformity, visibility and accountability-at first blush, all appear to
make the case for articulate standards. Few seem to quarrel with the idea, at teastii principle. Yet, there is a significant measure of opposition.

In opposition to slandards-Encroachment on states' Rights. The National
conference of state Legislatures has expressed concern thai if congress man-
dates that commissions draw plans according to specific federal standards, the
state legislatures will be accorded little voice in the redistricting process. The stan-
dard response to this objection is that state legislatures wouldrltain a significant
influence in appointing commission members. of courser this influence would be
limited by reform proposal restrictions on who could be appointed.

Absence of standards throughout the Nation's Hbtory. ii is true that federal
redistricting standards have not been employed throughout most of u.s. history
and that many states have set no standards for either iegislative or congressional
redistricting. standards supporters, however, assert thit (i) perhaps the federal
standards which were renewed and embellished from lg42 to l9l I ultimately ex-
pired simply because they were not judicially enforced, and not because they were
unnecessary or because congress did not have the authority to impose them, and
(ii) states are now increasingly adopting standards. These observations cast doubt
on the argument that the relative absence of standards in the past implies that
they are unnecessary to fair and effective operation of our redistricting appa-
ratus.

Effect on volume of Litigalion some have expressed wariness of standards
without commissions, suggesting that such a combination may ,.open the flood-
gates to litigation" and entail lengthy bureaucratic red tape. An underlying prem-
ise is that many plans will-be unable to satisfy fully the variety of standarJs being
proposed, and dissatisfied parties may be encouraged to find some inconsistency
worthy of court contest. Yet others have speculated that the articulation of stan-
dards could reduce frivolous litigation, since challengers would use standards as
guidelines to determine the types of deficiencies thi courts will recognize and
would assess their prospects with greater care.

standards: Contlicts or Priorilies, Focusing on the dilemmas of definition and
differing social and political values that underlie many of the standards propos-
als, some authorities suggest that the task of reconciling and ordering meaningfut
standards may be unmanageable. For example, drawing districts with the same
size population in order to fulfill the "population equality" standard may require
odd-shaped districts which fail to meet the frequently asserted ,,compactness,'
requirement. NCSL has,complained, in this vein, that many congressional bills
"impose a litany of substantive and inconsistent stanclards to govein redistricting
plans."r

Proponents of standards generally respond to such assertions not by disagree-
ing. that standards may conflict, but by arranging them according to prioiities
which can operate to mitigate the problem: the less important standaids need
only be met to the extent that the plan they affect is also iaithful to the more im-
portant standards. Indeed, several experts suggest that priorities should be

t1979 Hearings at 4(X) (statement on behalf of NCSL of State Senators S.H. Runyan, Arizona, Ross
Doyen, Kansas, and Charles Vickery, North Carolina).

l0

made explicit in any reform proposals which espouse redistricting standards. The
Supreme court seemed to advocate this priority approach at least with respect to
legislative districts, in Reynotds v. sims,377 u.s. 533 (1964) where the court
wrote that although the state must attempt to construct districts in both houses
of its state legislature as nearly equal in population as practicable, some popu-
lation deviations were permissible if "based on legitirnate considerations incident
to the effectuation of rational state policy" such as a desire to respect political
boundaries. It should be noted that placing standards in order oi importance
does not eliminate all difficulties. Additional questions which need to be
answered include what the precise order should be among any given set of stan-
dards, whether there should be a range within which sbnre standards can be
modified to accommodate others and, if so, what these ranges might be.

Examinstion of Speclfic Standards
Against this backdrop, it is appropriate now to exanrine individual standards

which have heen proposed, where on the priority scale each might be placed, how
clearly these can and should be defined in law, and how nruch a givin standard
should be modified to accommodate other standards.

Population Equolity. Past congressional statutes, supreme court decisions,
and virtually all major reform proposals agree that congressional districts shoutd
strive for equal population size. According to the congressional euarterly, 3g5
of the existing 435 congressional districts are within I per cent of the average
district population within their states, thus confirming the efforts of stateslo
adhere to this requirement.r Nevertheless, many issues with regard to this stan-
dard remain unresolved and a good number turn on definitioni of .,population
equality." Most definitions ser forth a percentage of population diviation
allowable from a state's average population in a congressibnil district. various
advantages and disadvantages are claimed for this approach. The ..deviation
range" concept is meant to eradicate gross population since any deviation outside
the stipulated range would be impermissible. This approach seems to offer a bet-
ter solution than precise mathematical equality since it allows other relevant con-
siderations to be taken into account in a way that mathematical equality may not.
Thus, districts would be presumed to be within constitutional tirlerances lf the
maximum deviation were within the permitted range. yet this presumption might
be overcome by showing that a given plan, nevertheless, "opeiated unreasonably
to minimize the voting population," see Kirkpatrick v. preisler,394 u.s. 526, at
531 (1969).

Among those standards defining "population equality" according to range,
there exist alternatives concerning the amount of deviation allowed. one tizi
Senate proposal, for example, (s. 516+*1 allows the largest district to be 4 per cent
greater than the smaller district (r'.e. permits deviations from the are.age district
ofrp to 2 per cent). Advocates defending the broader ranges assert that they pro-
vide a greater opportunity to accommodate other relevani standards and, t-hat in
any event, small ranges may require census figures to be more accurate than is
now the case. Indeed, the census Bureau admits to a margin of error of

'congressional Quarterly, "congressional Districts in the 1970s" (2d ed. !974) at l.rr96th Congress, lsr Session.

ll



approximately 2 per cent in its estimates, and a census authority testified in mid-
. 1979 before a House subcommittee that many state representatives had en-

countered problems using census figures to draw redistricting lines.*
Thus, although debate continues concerning the precise dCfinition of .,popu-

lation equality," there seems to be a consensus that iome standard of this liina is
a necessary (albeit not alone sufficient) requirentent for fair redistricting. It
appears that a range of standards would pass constitutional muster although
Supreme Court decisions are not fully clear on the extent to which states tnust at
least strive for strict mathematical equality.

Politicol subdivisions. over 200 counties are split up among congressional
districts more than is required by their state's population averagelMany of those
concerned with improving the redistricting process feel that the boundaries of
political subdivisions (counties, municipalities, and other units of local govern-
ment) should be respected in the line-drawing processes, although not all of them
agree on whether the term "political subdivision" should be defined in the federal
law or left up to the states to define. They propose that political subdivisions
remain undivided whenever possible not only because unneclss".y fragmentation
undermines the_ability o[ constituencies to organize effectively, but also because
it increases the likelihood of voter confusioniegarding other elections based on
political subdivision geographics. Futhermore, preserving political subdivisions
tends to foster a sense of community.

Still not settled, howevcr, is the priority this standard should be assigned.
While it is generally agreed that boundaries should only be respected to the extent
that they are consistent with the "equal population" siandard, the issue becomes
more controversial when this standard conflicts with the .,compactness" 

stan-
dard which discourages odd-shaped districts. Many political subdivisions are
odd-shaped; if the compactness standard is given a high priority, the political
subdivisions should only be respected when both .,population equality" and the
"compactness" requirement are furfifled. Most iroups place preservation of
political subdivisions qec91d only in importance to .,pbputation equality."

Other criticisms of the high priority accorded pr.r.r""iion of poliiical subdivi-
sions boundaries cut more deeply than those juit mentioned. I[ is charged that
honoring subdivisions preserves the "starus quo,,, a change in which may
sometimes be needed in order to eliminate unduiincumbent piver in fair distric-
ting situations. Representatives from MALDEF, for example, have expressed
concern that this standard may jeopardize minority voteri: :.1T1h. standard
which requires maintaining the boundaries of political subdivisions is unwar-
ranted. In order to maximize the voting strength and enhance the opfortunity for
minorities to be elected, it is often nec-ssary io split cities or counti; which irave
large concentrations of minority citizens.'tr

Conliguous Terrilory. Rarely has it been suggested that congressional districts
not be composed of contiguous territory. Generally, a clistrictls considered con-
tiguous if none of the territory included within it is entirety separated from the
remainder of the district by intervening territory assigned to anbther district. In-

deed, even though not required by the Constitution or by federal law, contiguity
is almost always observed in congressional districts.r Perhaps this practice is
common because, like compactness, it seems inherent to the system of represen-
tation upon which the U.S. House of Representatives system is based. Although
there has been questioning of the incorporation of contiguity into federal
legislative standards because of difficulty of definition, the almost self-evident
character of the concept suggests that detailed definition may not be needed.

There are, nevertheless, problematic situations for assessing contiguity. For
example, the question might be raised whether districts are necessarily contiguous
if they are comprised of territories joining only at one point or connected only
by bridges or tunnels, or separated by unconnected waterways. Some plans,
therefore, propose "convenient contiguous" territory, a concept that is designed
to permit searching scrutiny of these marginal situations and to afford some rec-
ognition to travel and communication barriers.

Compaclness. The "compactness" requirement is designed to prevent gerry-
mandering districts into odd shapes. one measure of compactness is to determine
the smallest circle in which the district can be circumscribed and to compare the
ratio of the area of the district inside the circle to the area of the circle itself, with
the closer to l-l the better. Like contiguity, compactness is required neither by the
constitution nor by federal law, but scholars and politicians alike have acknowl-
edged its value and many states have established compactness provisions.

Defenders of the compactness requirement maintain that it is central to the
theory of geographical representation upon which U.S. House of Representatives
selection is based. Ceographically compact districts also tend to reduce electoral
costs in time and money, since candidates and campaign workers can more read-
ily cover smaller districts. Nevertheless, a compactness standard which woutd be
logical for one district might be quite inapplicable to another. Thus, genera!
language requiring the aggregate lengths of district borrn6s1l"r in the state to be
as short as possible might be more appropriate in federal standards than more
detailed or narrow definitions. states, however, could choose to define the term
more narrowly in their own constitutions or code.s. This level of generality is seen
as preventing the arbitrary shifting of lines for political advantage while permitting
minor departures from compactness to accommodate important companion
standards. virtually all proposals suggesting this standard place it below the three
previously mentioned in terms of priority.

"Antigenymandering" Standords. Some endorsers of standards believe that
even if the previously mentioned requirements are carefully articulated and eu-
forced, there should also be explicit "antigerrymandering" standards. These gen-
erally prohibit the drawing of lines for the purpose of gaining political advantage,
and currently exist under the laws of Colorado, Delaware, Hawaii, and Oregon.
Such requirements serve as an added safeguard against linedrawers who, while
devising a means of fulfilling the previous requirements, still intentionally manage
to structure district lines which establish an undue political advantage.t*

'Remarks by Marshall L. Turner, Jr., U.S. Bureau of the Census, testifying before the House Sub-
committee on Census and Population, May 4, 1979.

"Letler dated september 27, 1972, Abelardo perez, rhen Associate Counsel for MALDEF, to
Senator Danforth (R-lllinois) sponsor of S. 596.

tln fact, a federal court, in Kopold v. carr, 14! F. supp. sl (M.D. Tenn. 1972) imposed a re-
quirement of contiguity where that requirement was not mantlated by state rt"tut.u. ln addition,
redistricting expert Bruce Adams has noted that, ... two state statutes and twenty seven
constitutions require contiguity." ('1A Model Reapportionment Process: The Continuing euesr for
fFa]r and Effective Represcntation'," 14 Hamord J. on Legislotion, Jrrnc l9?7 ar g74).

'f Sae Backstrom, Robins and Eller, " lssues in Cerrymandering: An Exploratory Measure of partisan
Gerrymandering Applied ro Minnesota," 62 Minn. 1,. Rev. No. 6, Ju[y 197g, which points out rhal

l3t2



The "political advantage" type of standard has encountered some opposition'
Jt is seen by some as an attempt to make the line-drawing process politically
neutral, an impossibility since every district line favors some political party, per-

son or group. Proponents respond, however, that the standard is not meant to
void a plan merely because it favors some group or individual. The Common
Cause model, for example, does not void a plan merely because it resrlrs in
favoritism. Rather, it requires that challengers demonstrate that districts were
drawn for the purpose of favoring some person or group.*

In addition, problems may arise under an antigerrymandering standard with
regard to determining which entities should explicitly be prohibited lrom gaining
political advantage. Among those suggested by various proposals are: political
parties, incumbents, economic groups, certain racial minorities, certain language
groups, and specific individuals. While it seems laudable to attempt to eliminate
the possibility of any entity gaining political advantage, an effective standard may
be so difficult to articulate that the resulting attempt could create more problems
than it would solve. Indeed, Common Cause redistricting expert Bruce Adams
has advanced this criticism with respect to the protection of certain socio-
economic communities (as has been attempted in Alaska, Colorado, Hawaii, and
Oklahoma). ln a 1977 article, he wrote:

The notion of "socio-economic communities of interest" is so broad
that a reapportionment authority could knowingly demark geograph-
ically overlapping communities. As a result, the reapportionment au-
thority would have to favor some communities of interest over others.
It is possible, therefore, that under the broad provisiotts those com-
munities of interest that have been the traditional victims of discrim-
ination will gain no additional protection."

Another frequent criticism of the antigerrymandering standard is that it weak-
ens the thcory of geographical representation. If a "fair system" is defrned as one
which guarantees that groups receiving a certain percentage of the total vote are
awarded a similar percentage of seats in Congress, the United States would have to
adopt a mechanism for proportional rather than geographical representation.*r*
Many potitical scientists assert that the U.S. electoral system could not readily
make this change because it would entail political conditions (e.g., the growth
of a multi-party system) which are foreign to the nation's political system and
traditions. Yet, it is possible to focus only on geographic information in the initial
formulation of redistricting plans and then to apply a "political influence" concept
in checking a plan to ensure that it does not unduly benefit some specific group or
individual. fur antigerrymandering standard might decree that such a check is

desirable although the type of data to be used in making this test and its manner of
application would have to be carefully worked out.

one can measure the extent of gerrymandering by looking ai any proposed districting in lerms of
statistical calculations on how likely the cxpccted seals-votes relationship it would give rise to could
have occurred by chance.
rCommon Cause, "Toward a System of 'Fair and Effective Representation'," (Washington, D.C.,
1977) at 55.

"Adams, "A Model Reapportionment Process" supra, aL879.
t'rSee Backsirom, "lssues in Gerrymandering," supro. As measured in Backstrom's terms, fair
representation is zol proportional rcpresentation.

Some groups oppose any express prohibition of political gerrymandering, ar-
guing that the Supreme Court has never found it unconstitutional to take certain
considerations into account when drawing initial redistricting plans.r However,
advocates of this standard, in addition to questioning the validity of case pre-
cedent here, suggest that it is precisely for the reason that constitutional strictures
may permit some accommodation of political considerations that federal stan-
dards must be articulated in this area in order to prevent abuse.

Other Considerations: "Afllrmstlve Gerrymendering" Practlces

Most authorities and organizations advocating antigerrymandering standards
disapprove of the use of statistics about a district's racial or linguistic composition
to dilute the voting strength of certain racial or language minorities. Indeed, both
Supreme Court decisions (e.g. Gomillion v. Lightfuot) and federal legislation
(the Voting Rights Act of 1965) prohibit such practices.r*

A more controversial question, however, is whether such information should
be taken into account to afford minorities an advantage so as to compensate for
past redistricting injustices (hence the name "affirmative gerrymandering"). In
this vein, an expert on the effect of redistricting on black voters has suggested the
following language for inclusion in redistrictirrg proposals:

There shall be an affirmative duty on the part of the [initial reap-
portionment authorityl to insure that there is no discrimination on the
basis of race or color in the drawing of congressional district lines.r*.

This approach seems to be supported by Supreme Court pronouncements
lUnited Jewish Organizotions v. Carey,430 U.S. 144, (1977)l; the NAACP has
also gone on redord in support of "affirmative gerrymandering":

Whereas, courts, including the Supreme Court, have recognized that it
is sometimes ne{essary to take race into consideration in the shaping of
voting districts to correct violations of the Constitution and of the
Voting Rights Act; . . .[Tlhe NAACP opposes any law that woutd
restrict legislatures or other entities in their efforts to correct the under-
representation of blacks in Congress.frr*

Some minority interests (e.g. MALDEF) suggest that a diluting effect in a re-
districting proposal (with or without proven intent) should be sufficient proof of
discrimination to invalidate it or, at least, to create a presumption of defec-
tiveness in any state and not merely in those jurisdictions with a history of dis-
crimination. The rationale, drawing on experience with respect to efforts to
establish discriminatory intent in matters of minority employment and educa-
tion, is that proving such intent is difficult if not impossible.

ln City of Mobile v- Bolden the U.S. Supreme Court dealt with the intent issue
in the context of a redistricting challenge based on Section 2 of the Voting Rights

'NCSL; See Gatfney v. Cummings,4l2 U.S. 735 (1973) and White v. Reguter,4l2 U.S. 755 (1973) in
support of Supreme Court neutrality in this area.

"42 U.S.C. g0 1971, l97l et xq.
"r1979 Hearings at 342 (statement of Crcorge Bundy Smith),
tt'rluthea Simmons, Director, Washington bureau, NAACP, quoting statement of the Association
enunciated during NAACP's 70th annual convention.

I

I

I

I

t5t4



Act.* Mobile's at-large system of elections was alleged to cause discrimination
against minority groups. The supreme court ruled against plaintiffs, finding that
fhe intent to discriminate had not been proved as required in a section zltrat-
lenge. | * This particular election system had been established in I 9l t , before the
date_of-applicability. of Section 5 of the voting Rights Act. Had section 5 ap
plied, the system when proposed might not have passed muster during the
statutorily mandated preclearance procedure which requires that a covered
jurisdiction must prove that a proposed change has neithei the intent nor the ef-
fect of discriminating against minority groups. Thus, a paradox exists with respect
to the relationship between the voting Rights Act and electoral systems. while
section 5 jurisdictions generally may not establish at-large systems, such existing
systems and systems adopted by non-section 5 jurisdictions may be imposed ani
perp-etuated regardless of their effect on voting strength.wlle a requirement which prohibits dilution oiminority voting strength
would lean toward Plan B instead of Plan A in an illustrative fourdistiict urban
area such as graphically portrayed in Figure 6, the "affirmative gerrymandering"
approach might favor Plan c (at the cost, it is noted, of somJgeographic gIr-
rymandering).

the.practical impact of such "affirmative gerrymandering," some political
analysts seriously question its theoretical foundition, maiiiaining that while
redistricting should not contribute to discrimination, neither shoulj it carry the
burden of compensating for past discriminatory practices. In the words oi one
exp€rt:

[A] racial quota [affirmative gerrymanderingt courd easily be super-
imposed on a legislative body which is elected by a systern of propor-
tional representation. It could simply be required ihat a paiticular
group's proportion of the total population be reflected in the member-
ship of the legislative body. But to attempt to apply a quota to a
legislative body which is geographically based (as are it.r. u.s. Congress
and every one of the state legislatures) is to mix two fundamentally in-
compatible concepts..

Time Provisions. Throughout the redistricting process, there exist steps which
may become obstacles to timely action if time limits are not imposed. These in-
clude:

o completion of a proposed redistricting plan;. voter challenge;
o initial court review;
o formulation of an acceptable plan if the initial plan is rejected;o final judicial decision on acceptance of the plan.

some improvement advocates believe that there should be few, if any, specifica-
tions of time limits since they may be unenforceable if emergencies arise which
preclude attention to redistricting matters. These individual-s endorse the ,,as
soon as practicable" approach. others believe that a maximum time limit should
be set for some, if not all, major steps. This would help avoid the problern of
ultimate plan acceptance after census figures have become outdat;d or after
crucial elections have passed.

Perhaps the most crucial time problems arise in connection with drafting of
initial and final plans. some experts sugg,est that a time limit be set only foithe
final product. Interim time limits are unnecessary, they assert, if the final plan is
accQted before political interests can predominate. The voter challengi tir"
period is also a subject of controversy. Some proposals allow voters to challenge
plans up to 6o days after they have been made public, while others allow up io
nine months after establishment of the last district after a decennial census (e.g.,
s. 596 and Amendment-237 plans, respectively). The shorter period attempts to
ensure that litigation will conclude before the next major congressional election
takes place. The longer time provision, on the othei handJ offers citizens a
greater opportunity to participate in the apportionment process and to hold line_
drawers accountable. cenerally speaking, iome articulated time limits, perhaps
more as a target than as a rigid goal, would seem desirable in reapportionment
standard-setting.

Plan A
Figure 6**r

Plan B Plan C

Note: T denotes minority

These points of view have been criticized on several grounds. First, there has
been questioning of one assumption upon which affirmative gerrymandering
rests, namely, that minorities make up an essentially unified voting block that
will rally behind a minority candidate. It can be argued, of coursi, that even
though minority constituencies will not necessarily elect minority representatives,
thelarger the percentage of a minority population in a district, the more likely it
is that the district will elect a minority candidate. More intensive studies of
minority voting behavior may shed light on this issue. However, regardless of

'42 U.S.C. 1973, Section 2: "No.voting qualifications or prerequisite to voting, or standard or pro-
cedureshall be imposed or applied by any State or political subdivision to deny or abridge the right of
any citizen of the United States to vote on account of race or color, or in the contravention of the
guarantees set forth in Section ln3b$)2 of this title." Section 2 is interpreted as a restatement of the
Fifte€nth Amendment which requires a showing of purposeful discrimination...64 L. Ed. 2d I t9 (t980).
tttEach bor represents a stste; divisions denote districts. Equal population distribution is asoumed.

tt't**t

'-Wells,- "'Affirmative Gerrymandering' Compounds District problems,,' Notionol Civic Review(Jan. t978) at 16.

t7

Z, Z
w, a

l6



I

This discussion has explored the major options under consideration with re-
spect to standards for congressional redistricting. While the options remain open
to debate, it appears that virtually all reform interests view nrandated redistrict-
ing standards as an important element for improving the electoral process.

IY. The Issues: lVho Should Make the
Redlstrlcting Decisions?

In addition to a determination of the need for and character of standards, the
reapportionment "rulemakers" must be identified, i.e., the body or governmen-
tal entity which determines where responsibilities lie for making subsequent deci-
sions. This body possesses the authority to determine whether commissions, state
legislatures, or other governmental officials draw district boundaries. If the
rulemakers decide that specific processes and specific protections should be in-
cluded in initial plans, such reviewing responsibility must be allocated. The main
candidates for these key duties in the reapportionment process will be discussed
separately.

TVho Should be the Redlstrlctlng Rulemrkers?

The ultimate authority to decide how subsequent redistricting decisions should
be made lies with either Congress or the state legislatures.

Contentions as to Congressionol Authority. It can be readily argued that the
Constitution grants Congress this ultimate authority. Article I, Sections 4 and 8
are cited in support of this view. Article I, Section 4 declares that Congress "may
at any time by law make or alter" [regulations about thel "times, places and
manner of holding . . . [congressional] elections" and Section 8 grants Congress
the power "To make all laws which shall be necessary and proper . . ." for car-
rying out its constitutional powers. This basic authority as well as.subsequent
judicial interpretations suggest that regulation of redistricting is within Congress'
constitutional prerogatives. Indeed, the Supreme Court, on several occasions,
has interpreted the Constitution as giving Congress authority over rules affecting
congressional elections.i Another argument supporting this view is the pragmatic
contention that Congress has exercised such authority in the past on several occa-
sions without encountering serious objections.

Contentions as to Stole Legblative Authority. The National Conference of
State Legislatures (NCSL) is perhaps the leading advocate of preeminent author-
ity in state, legislatures over reapportionment, and has officially opposed any
federally rnandated procedures, structures, or substantive standards on redistrict-
ing. Those, like NCSL, who favor the current system (which accords state
legislatures an essentially free hand, subject, of course, to Supreme Court con-
stitutional interpretations) advance several arguments. First, they maintain that
the framers of the Constitution intended that state legislatures have ultimate con-
trol, noting that Article I, Section 4, provides that "the times, places and manner

tSea Appendix A, Boker v. Con, Ex Parle Siebold, Oregon v. Milchell.

of holding Congressional elections shall be prescribed in each State by the
Legislature thereof." Testifying before the Senate in 1979, NCSL spokespersons
contended that congressional power in Article I, Section 4 to "make or alter"
such rules is misinterpreted when applied beyond the most compelling emergency
situations:

Congressional authority to oversee national elections was controversial
and was accepted only as an extraordinary device to be used in extraor-
dinary circumstances. It was not intended to grant the national
legislature plenary power over elections or to permit that body to inter-
pose its notion of political fairness.*

Although Congress has legislated some standards, state legislatures historically
have been responsible for making redistricting decisions. This relative congres-
sional inactivity on redistricting stems largely from a history of lack of enforce-
ment of congressional mandates rather than from any irrelevancy of the rules to
improving the process or from an absence of congressional authority to make the
rules in the first place.rr

The debate about "ultimate rulemaking" authority is of greatest moment
where the U.S. Congress and state legislatures would assign subsequent respon-
sibilities in a different manncr. Perhaps, then, the most crucial question to be
answered is who should have responsibility for drawing district boundaries.

Who Should be the Inltisl Apportloning Aulhorlty?

This is perhaps the most controversial issue in the reapportionment debate, for
it affects a power exercised by state legislatures since the inception of our
republic. The two major candidates for the responsibility are commissions and
state legislatures. The "commission" concept has generally attracted the
"reform" label, yet even some "reformers" hesitate to support it.

Advocates of the "commission" approach feel it has appeal because the
"legislated" system allows a great degree of self-interest to operate in the
redistricting process. A former lllinois Congressman testified in 1979 that taking
redistricting out of legislative hands "greatly reduces the inherent confllct of in-
terest which now exists when the same peoplc who draw a new map and vote on it
also have a personal stake in its outcome."trr State politicians have occasionally
admitted to this self-interested motivation; many legislators dislike the redistric-
ting responsibility, but use it in "self-defense," with knowledge that if they do
not succumb to the temptation of drawing lines favorable to their political in-
terests, their opponents will certainly seek to do so.

Those groups skeptical about commissions suggest that commissioners might
be just as subject to political pressures from congresspersons as are state legis-
lators. If the commissioners are political appointees, they may even be more vul-

rl99 Hearings at 40[ (statement on behalf of NSCL of State Senators S. H. Ru-
nyan, Arizona, Ross Doyen, Kansas, and Charles Vickery, North Carolina).
"8.g., see discussion of Standards, at page 10.ttt1979 Hearings at 302 (staicment of Abner Mikva, formerly lOth Congres-
sional District, lllinois, presently a member of the Circuit Court of Appeals for
the District of Columbia).

l9l8



nerable to political pressures than a legislature elected by the public. Commission
slpporters respond by endorsing the introduction of safeguards into the appoint-
ment process to eliminate "special interest" commission members. In a 1977 arti-
cle, one redistricting expert pointed to the Arkansas legislative cornmission (com-
posed mostly of legislative leaders) as a biased body that could not "exercise the
independence sought by the advocates of reapportionment reform." He strongly
commended, therefore, the "impartiality" restrictions incorporated in the Com-
mon Cause proposal.i

Critics of the conrmission approach also assert that creating commissions
unrealistically attempts to remove politics from an inherently political process. It
is impossible, the argument holds, to apportion political power by a non-political
process, Further, the fact that citizens can vote directly for legislators but not for
commissioners may cause voters to feel disenfranchised and removed from the
electoral process. Pro-commission authorities concede the importance of a sensi-
tivity to the danger of removing the redistricting process too far from the
legislature. They typically stress, however, that the reform is designed not to deny
the legislature its interest in reapportionment, but rather to buffer the process
from cohflict of interest.**

Some experts contend that entrusting redistricting to a commission may bring
the process closer to the voter, as many plans implemented in the recent past were
drawn by the courts, a body over which voters have even less control than over
commissioners. However, proponents of the current system assert that commis-
sions boast no better "track record" than do legislatures in terms of producing
plans acceptable to the courts. While there exist few statistics relating to commis-
sions drawing congressional lines, the information about state legislative com-
rnissions and reapportionment commissions in other countries may shed light on
the issue. According to NCSL, only a "handful" of states have seen their con-
gressional plans redrawn by the courts, and one recent study of redistricting prac-
tices suggests that the overall record of some bipartisan commissions has thus far
been shown to benefit the pariy controlling the state legislature more than have
the other methods.'r'i'i Furthermore, according to 1974 data, about a third of the
plans initially proposed by both state legislatures and the courts were rejected in-
itially by appellate courts.

While these statistics offer meager support, if any, for the commission ion-
cept, commission proponents point to other data that tend to corroborate the im-
proved commission track record. First, many reforrners take issue with the
"handful of states" estimate. In fact, most estimates are that between 25 percent
and 35 percent of current house district linis were drawn by the courts. A 1973
study by the Council of State Covernments concluded, moreover, that commis-
sions seemed to establish better track records than state legislatures.***r Other
analysts point to commissions in other countries (e.g., Australia, Canada, and

rAdams, "A Model Reapportionment Process: The Continuing Quest for 'Fair and Effective
Representation, at 868. Adams is a principal architect of the Common Cause models.

"It is worth noting that the most direct conflict of interest concerns legislative districts. While state
representatives may run for congressional seats (and thus benefit directly from congressional lines),
they more often run for reelection in their state house and senate.

'tr1979 Hearings at 424 (statement of Eric Uslaner).
rffiCouncil of State Governments, Reopporlionment in the Seventies I I (1973).

Great Britain), suggesting that their record of electoral equity is better than that
of those in the united states. Although the controversy about actual perfor-
mance may be resolvable only with further study, it does seem clear that more
than a "handful" of congressional redistricting plans initially drawn by state
legislatures have been found unacceptable in the courts.

A collateral consideration in assessing performances is economy, l'.e., whether
commissions can save time and money. Because commissions would be created
for the specific purpose of efficiently and equitably preparing redistricting plans,
their entire organization could be shaped toward that end. Such specialization is,
of course, extremely difficult in a state legislature with numerous and diverse
responsibilities. Unfortunately, reliable estimates of the comparative costs of
commission versus state legislature formulation of plans are not readily
available. Yet, there are some figures which provide an initial framework. From
l97l to 1973, the california legislature invested approximately $l million
developing a redistricting plan (which was ultimateiy replaced-by a court-
appointed Special Masters' Committee plan) and in l97i theie were over 26 full-
time legislative staff members working on the california redistricting. Hawaii's
reapportionment commission spent about $200,000; Montana's rp.-nt appro*-
imately $20,000.* These figures suggest that the dollar dimension of the debate,
even if not an overriding consideration, merits some study.

In addition to criticism of the "commission" apploaih, advocates of state
legislature line-drawing advance several positive claims. It is commonly asserterl
that state legislatures have not abused their discretionary powers. It is argued that
since forty-two states have a population deviation of less than I per cent (i.e., in
these states, the population of the greatest district does not exceed by more than I
per cent that of the smallest district),** this demonstrates that legislatures have
made a concerted effort to draw fair districts. Thus, since the only constitutional
requirement of fairness articulated by the Supreme court is population equality,
and since the legislatures are adhering to ttrat rule, they have made a 1,goor1

faith" (and largely successful) effort to establish fair district lines. As noted
earlier, reformers caution that although population equality is necessary for fair
redistricting, it is not alone sufficient.

Even if the commission concept is accepted, controversies can arise concerning
both the method of selecting commission members and their number. The greater
the number, the more likely it is that the commission will take into account
minority views. However, a large membership may increase financial costs while
reducing the likelihood of a consensus. An equally troublesome question is, who
should mandate the commissions-congress or the states? Those supporting the
congressional approach maintain that it will ensure that all states establish com-
missions whose members are selected in the most impartial and uniform way
possible. critics, however, question both the political and constitutional advisa-
bility of federally mandated commissions. They voice the view that the redistrict-
ing mechanism should be left in state hands, where it can be held accountable to
the citizens. They also express concern that members of a federally mandated com-

rAdarns. "A Model Reapportionment Process: The Continuing Quest for 'Fair and Effectivc Rep.
resentation'," supro at 856, n. t 15.r*1979 Hearings at 401 (siatement o[ North Carolina State Senator Charles Vickery, citing Congres-
sional Quorterly).

20
2l



. mission may view themselves as ultimately accountable to the federal govern-

ment, to thi detriment of viable state government'

constitution"r qu.riiJr, "i* t are Gen raised in this area, especially with re-

,e.Ji;;;;;r;rridn"r ;;ii;"rrtt io speciry the method of commissioner selection.

iirrn, i.qrir'ing certain state legislators to appoint commission members, for ex-

ample, might violate ;h; ,Lil"iliments.dause" of the constitution which re-

quires that certain .,Oin"..r ii the United States" be nominated by the President

and confirmed bY the Senate'*
Threecongre,,..n"d,"ncedthisargumentinlgTgbeforeaHouseSubcom-

mittee, pointing out th;;it $,; their unierstanding that (i) commission proposals

do not specifically a"nie'*fr.tt "ia 
commission w-ould be a state or federal agen-

;'ittiii" i"J.rir agency has more-than investigatory and.informatory powers'

its members must be,.i"itJin.onformity with-the'iappointments clause," and

iiiti';i;;;ih; commisriors woutd be responsibte for making reapportionment

decisions (clearlytnor",f,* inu"rtig"tor-y and informatory powers), the constitu-

tionality of their r"1j;;1t;;fi,g;fus.in the state legislatures would clearlv

be put into question.;;i[if 
"r." 

suggested that congressional specifications as

to commission selection;; ;;;#;hip might violate states' rights under the

Tenth Amendment, uJ'r.qriiirg rather than authorizing state officials to per-

form federal duties. itr.ri views are questioned by legal experts for groups

i.i"rJf-"g 
-[airi.rcting 

commissions .who see no "appointments clause" issue

where purely legislativ? iu*liont 
".. 

invoived (as in pieparing district plans) and

discern in the broad f",#;i;;iil;iiiy ie"ognized by the iourts over con,ressional

elections the legitimate po*.i to specify redistricting procedures. such as commis-

sion mechanirrr....'if,[;,; il;il ;hat the issuJof congressionallv mandated

reapportionm"n, .on,*iJrilnt fi;t await judicial interpretation for final con-

stitutional ,"fiO"tion i"it-ftougtt litite constitutional question exists that the states

;;;;;;J *iirt tnii technique on their own initiative)'

A further line of *,i*i"e ii this vein merelydismisses commissions as lacking

,.f.""i"V'"nJ..""i"g *ii"n i"rii*1lo tne prbUlems of fair apportionment. On

the one hand, it is cffiea that if there are fair and clearly defined redistricting

standards ana ir tnerJaJ."..ount"bility" provisions rg*ing."r..a check on the

redistricting authoriti,iiLateslittteaiffirence what body holds the redistricting

responsibility. rr,ur, l".ii indiridual state should choose whatever method of

e,.l.l.r,,s*.ion2,cl.2:..Hcshallhavepower'byandwiththeadviceandconsentofthesenate'to
maketreatics,providedtwo.thirdsofthcsenatorspresentconcur;andheshallnominate,andbyand
with the advice and 

"onr..i 
oiitt. t naic, shall appoint ambassadors, other public ministers and con-

suls, judges of tf,. ,upr....io*, ,"i "ii.,f,", 
oiiicers of the United States, whose appointments are

not herein other,ri* pro"iiJioi, 
""a 

*iri.rt rr,"ll be.established bv law. But the conSress may by law

vest the appointment "r.r"i'iii.ii* 
officers, as-they think propcr, in the president alone. in the

-uttt-of itre ta*, or in the heads of departments'"
..1,,9 Hcarings at 35-3i (stat.."rt, L_f Representatives James t-each, Robert Kastenmeier, and

William Frenzel ,.rving on'irJiiii. vitrr,aZ U.S. I (1976), interpreting the case.as holding in part

that if a federal agcncy t 
". 

more irr"n invcsii8atory and informarory powers' member selection must

conform to the "appointments clausc'")'
...5a., e.g., rylc Hca.ii;s'aiii-zji.t"t"r.nt of 

-Common 
Cause General Counsel K' Guido, Ifte'

Consriutionalitv oI ne )Ttie"v^oiai'W la o! 1979' rclving on Ex Porte &ibold (188o)' Smilev

v. Hotm 1t9t2l, *a orreii";.' ;iir.l,rTiticiol, ,r ttablishing congress's clear power to divest statcs

of all control ore, ,edistriiing 
"nJ, 

,rto.ror., alro to exetcise tnorelimit.d prerogatives of specifying

procedural rules and methods for that function')'

reapportionment would, in its political context, be consistent with fulfilling these

lit'., *".i", ,"qui..r.nir.-onit. other hand, there are those who remain skep-

ti."i 
"u"rt 

articulating anyi.ror* measures, feeling that those wh.o. wish to ex-

oloit the redistricting p-..tt for reasons of potitical self-interest will find a way

io-.ir.urnr.nt even ihi most clearly defined rules'

Accountrbility Provlsions: Who Should Judge the Plan?

Eveniftheinitialreapportioningauthority.hasbuilt.infairnesssafeguardsin
terms of character, i"d;;;;;;;, itpitttnt"iiveness' and procedural standards'

it must be recognized d;i;;i;;.en injustices may srill result. Thus, the major

reform proposals all incorporate some accountability provisions. These include:

oprovidingforopenhearingswhenthelinedrawersareconsidering
redistricting oPtions;

. requiring p-ublic notice of redistricting hearings;

. making the recorj ii any nearings publicly available (perhaps bv

publicition in legislative journals); 
.

o affording tt. oppoitunitvio qu"fihed voters to challenge a proposed

pian ,,it[in 
" 

,iiton"Uf. period (affording sufficient time to become
-a.quaint.a 

with the line-drawing proposals and to prepare necessary

information for tnJcttJfeng", Uit'noi to long as to delay unduly final

determinationtl 
"nO, 

potsiLli, with waiver or reimbursement of at-

torney's fees for successful challenges;
. ;l;;l;s-;;ttrority in i.a.r"f courtJ for expeditious review of plans,

!ith.iitttoueh cirallenge initiatives or automatically; and

o allocating ,"tponril'if-ii, ioi .epta"ing inadequate or. objectionable

pr."*_t[" ,.d.r*ing t6 be accomplished by initial redistricting bodv'

new group, or the courts.

With respect to judicial review measures' questions.arise.concerning what

,p";in; time prouisio; rhilld be included in tlie authorizilrg bills, and whether

there should be autonialtic:rai.i"r review as opposed to-review.only of those

*r", *ti"f, are ctrattenged. Automatic review now (rccurs for legislative reappor-

tionment plans in Cr[;;; Fl.rida and.Kansas. It offers the advantage of a

routine and more th;;; ;i;;k ;" initiat plans, as courts mav catch im-

proprieties which puuiic ,J*tinv misses. However, automatic review also raises

[""lil"rt. f" p"rti.uhrl iiit iniltpt.ted as permitting the courts too great a role

in the redistricting prJiess.ift. ,ina.tlying argumenl stresses that the legislative

and not the judicial b"r;i, of go""intnlnitt oirta possess the primary authority

over redistricting; the;ourts sf,ould not operate ai t5e ultimate arbiter and ap-

pr"r"i "i "f..t&uf 
r,tt".ii-;;;rg.,".nts bf ttris kind. An additional problem

identified witfr respecii;;;;;;tL judicial review is that the courts must make a

ffifi;;i *itt out'tf,. U;fia;i th";dversarial process' a role for which thev are

not optimallY suited.

.s,","a-wnikv.webler,4l2U.s.783(1973)wheretheCourtrejectedaTexasredistrictingplan
on the basis of "aroidablei' ;;;;ii."t. FLur justices dissented, asserting that the ruling in effect

established a de minimusrrf. f"i ti"i. i.i*i"tur.. *h.t. the state was not even required to justify

population variances.

22 23



The problem of revision or redrafting where initial plans are rejected has also
generated some differences of approach. One option dictates that courts redraw
plans themselves or appoint other apportioning authorities if they reject the first
plan proposed. Others follow this course only when the initial apportioning
authority fails twice; such a "second-try" approach is usually defended for plans
which call for redistricting commissions. An underlying rationale reflects the
concern that members of a nonpartisan commission, knowing that a court of
their political persuasion will take over the reapportionment process should the
commission fail to act, might be inclined to force a deadlock. Moreover, the
commission would likely have at its disposal staff, resources, and experience not
readily available to the court, which it could employ in formulating a new plan.

Although many of the accountability provisions remain subject to debate, par-
ticularly in their detailed content, most redistricting reformers agree that this is a
crucial component for improvement. Sirnilarly, while influential groups may dif-
fer as to who should make redistricting decisions and how critical these decisional
bodies are, most seem to join forces in recognizing the importance of accoun-
tability factors to an equitable reapportionment process.

V. Concluding Observatlons

This monograph has attempted to identify problems associated with the cur-
rent congressional redistricting system and to review the various proposals for
improvement along with major arguments which have been advanced in favor of
and against them. It is hoped that this analysis will enhance understanding of the
important issues involved, and that it will motivate groups and individuals both
within and outside the legal profession to formulate their own views, consider
remedial action and resist deterrence to change by traditional obstacles in this
field.

The improvement proposals under consideration and debate fall into two
broad categories-structural change (argely focused on the use of special com-
missions for developing reapportionment plans) and promulgation of standards
to help ensure fairness and equity in line-drawing (based on a handful of prin-
ciples running from population equality through encouragement of minority in-
fluence). Concurrently, two levels of legislative initiative for such reforms are
under consideration and debate-federal and state.

It is not the intent or function of this pamphlet to advocate specific reform
positions. However, redistricting equity remains a problem for the nation and
optimal solutions and conditions do not yet appear to have been devised, no less
incorporated in existing processes. Thus, a measure of experimentation with the
new reform concepts seems desirable; the American Bar Association has formal-
ly endorsed such a posture in relation to the 1980 census redistricting process.r

The nation's experience with redistricting commissions has not been sufficient-
ly widespread or intensively evaluated to draw final conclusions as to universal
value or the most desirable subfeatures and characteristics. Thus, it would seem
that those who call for state initiatives in jurisdictions so inclined, rather than for
a mandate that all states establish commissions, would offer the most promise
and the best opportunity to evolve optimal structures for reapportionment.

Federal rules governing redistricting standards, rather than governing methods
to apply these standards, however, may be beneficial, although existii,g uncer-
tainties as to the best "mix" and order of priority among the most commonly
cited standards (e.g., population equality, compactness, contiguity, avoidance of
intentional political preference) sugSest that such formulations might do well to
leave some room for state flexibility and experimentation in detailed definition
and ordering of any standards articulated.

Whatever the case, carefully studied and soundly conceived redistricting
reform promises to aid many sectors of society:

. voters in general whose voice will be heard more clearly when election results
are not predetermined by gerrymandering, when competition for congres-
sional seats is maximized, and when representatives must focus their respon-
siveness on voters rather than on line-drawers;

o racial and ethnic minorities whose interests have often been subordinated in
past redistricting practices;

. congressional candidates from minority parties and challenger groups who
no longer need hurdle undue barriers of self-protection constructed by in-
cumbent politicians;

. state legislators who will be liberated from political pressures which may in-
fluence them to manipulate the line-drawing process;

. courts which will have clearer guidelines concerning the acceptability of
redistricting plans; and

o rural and suburban communities (when gerrymandering has been used to
strengthen unduly the urban voice) and urban residents (when line-drawers
have attempted to increase unduly rural representation).

Indeed, virtually all sectors ofsocietycan benefit from congressional redistrict-
ing improvement which aids the American electoral machinery in functioning ac-
cording to our highest ideals of lepresentative government. The time is right-for
thought, for decision, and for new levels of achievement.

tSee Appendix B.

24 25



APPENDIX A

IMPORTANT DATES IN REDISTRICTING HISTORY

STATE

DA'E ACroR EvENr DEscRrprroN lBRtSlt$t'(n,
t842

t872

I 880

t9l I

1929

1932

t946

t9@

1962

t96/.

U.S.
Congress

U.S.
Congress

U.S.
Supreme
Court

U.S.
Congress

U.S.
Congress

u.s.
Supreme
Court

U.S.
Supreme
Court

U.S. i

Supreme 
I

Court 
I

U.S. I

Supreme I

Court I

u.s. I

Supreme I

Court I

5 Stat. 491

17 Stat. 28

Ex Porle
Siebold

1,2,37 Srat.
1 3,14

46 Stat. 2l

Ex. Rel.
Smiley v.

Holm
(Minnesota)

Colegrcve
v. Green
(lllinois)

Gomillion v.

Lighttoot
(Alabama)

Baker v,

Carr
(Tennessee)

Wafuny v.

funden
(Georgia)

First federal statute requiring states
to establish congressional districls.
First congrcssional ancmpt to im-
posc standards in congressional re
districting: compaclness, conti-
guity, single-mcmber districts.

Reiterated IB42 standards; s€t
forth populatbn cquality stan-
dard. Reiterared in 1882, lB9l,
t90t.

Congress has suprane authority
over congrcssional election rules.

Reiterated 1872 requirements.
Fixed numbcr of U.S. Housc
members at 435.

Rcquired automatic reapportion-
rncnt on basis of population aft6
cach deccnnial census.

Congress has "authority to provide
a complete code for congressional
elec{ions."

Courts lack authority to judge
fairness of a political matter such
as redistricting plans.

Crrrymandering of city boundaries
with a clearly defined racial motive I

is unconstitutional. 
I

Federal courts t"r. ,rthority to I
judge fairness of legistarive I
redistricting plans. 

I
"One man, one vote" ("as nearly I
as practi(uble") standard: strio I
numcrical equality among popula- |
tions in congrcssional disrricts. I

C

C

C

C

C

c

C

27



STATE
LEGISLATIVE/

DATE ACTOR EVENT DESCRIPT@

STATE
LEGISLATIVE/

r po{

1964

r 965

r966

1967

I 967

1969

I 969

I 970

U.S.
Supreme
Court

U.S.
Supreme
Court

U.S.
Congress

U.S.
Supreme
Court

IJ.S.
Congress

U.S.
Supreme
Court

u.s.
Supreme
Court

U.S.
Supreme
Court

U.S.
Supreme
Court

Reynolds v.

Sinls
(Alabama)

Wrighl r,.

Rocketeller
(New York)

Voting Rights
Act.42 U.S.C..
t97 I . t973
et seq.

Burns v.

Richardson
(Hawaii)

2 U.S.C. $ 2c

Swann v,

Adoms
(Florida)

Kirkpatrick
v. Prebler
(Missouri)

Wells v.
Rockefeller
(New York)

Both hous€s in state legislature
must meet the "as nearly as Prac-
ticable" standard; some deviation
is allowed to accommodate olher
relevant considerations. (e.g., pre-

serving political subdivisions).

To prove gerrymandering un-
conslitutional on grounds of
discrimination, challenger musl
show eviderce of discriminatory
effect and purpos€.

States wiih pasl history of
discrimination must submit elec-

C.

C,L

C

L

C

C

toral changes to DePart
ment of Justice for preclearance.

State plan may be rejected if
either intent or effect is to dilute
minority power. Protected
language minorities include
Alaskan natives, American ln-
dians, Asian Americans, Persons
of Spanish heritage.

Redistricting plans are nol
necessarily unconstitutional if
merely designed to reduce com-
petition among incumbent
legislators.

Banned at-large congressional
elections.

Although rejecting legislative ap
portionment plan, the court
recognized thal de minimus
numerical deviations are
unavoidable in state legislative ap
portionment.

States rnust make "good faith ef-
fort" lo achieve "Precise
mathematical equality" and tnust
justify all population deviations.

Strict mathematical equality is re'
quired. lnvalidated plan which set

up a New York congressional

district with maximum deviation
of 6.690.

Reiterated Congress's ultimate
authority over congressional elec-

tions.

DATE ACTOR EVENT DESCRIPTION CONGRESSIONAL
t91t

197 I

t973

t973

1913

1973

t9't7

t980

U.S.
Supreme
Court

U.S.
Supreme
Court

U.S.
Supreme
Court

U.S.
Supreme
Court

U.S.
Supreme
Court

U.S.
Supreme
Court

U.S.
Supreme
Court

U.S.
Supreme
Court

White v.
Weiser
(Texas)

Whitcomb v.

Chavis
(lndiana)

Connor v.

Johrson
(Mississippi)

lAhirc v.
Regesler
(Texas)

Gatlney v.

Cummings
(Connecticut

Mahan v.
Powell
(Virginia)

United
Jewish
Orgoniza-
tions v.

Carey
New York

City oI
Mobile v.

Bolden
(Alabama)

Multimember state legislative
districts are not unconstitutional
perss,'challengers must prove un-
constitutional dilution of voting
strength.

Where a federal court fashions a

redistricting plan, single-member
districts are preferable to multi-
member districrs.

Certain population deviations are
permissible in legislative redistric-
ting plans if effected to accom-
mo<Iate rational state policies
(e.9., preserving political suMivi-
sions). Multi-member districting is

unconsiitutional if it dilutes the
votes of a racial minoriiy.

Deviations of 2.4lio above
average and 1.790 below averagc
in Texas congressional districting
plan deemed unacceptable. sincc
districts were not as
mathematically equal as prac-
ticable.

States not required to justify
minor population deviation in
legislative disricts; a legislative
district plan may constitutionally
bc drawn with inlent to reflect
political make-up of state.

Upheld a Virginia legislative plan
which produced a maximum
population deviation of 16.490,
decming the plan a ralional means
1o prescrve political subdivisions.

Racial criteria may be used in
drawing legislative district lincs if
designed to comply with Vuting
Rights Acr.

Public officials may be elected at-
large even lhough preclusion of
election of minorities may thereby
result, where plaintiffs in non-
Voting Rights Acr jurisdiction fail
to show inteflt to discriminate in
the election mcrhanism or pro-
ccdure.

c

28
29



APPENDIX B

AMERICAN BAR ASSOCIATION RESOLUTION
ON FAIR REDISTRICTING

(House of Delegates: February 1979)

Note: The following resolution relates to voter participation initiatives extending
well beyond legislative reapportionment. While the comptete resolution is set

forth, only that commentary from the underlying report which relates to
redistricting has been excerpted.

RECOMMENDATIONS

BE IT RESOLVED, that the American Bar Association urges the President of
the United States to appoint a commission of distinguished persons from various
walks of life to study the decline in voter participation in the electoral process and
to make appropriate recommendations, such study to culminate in a White
House conference on the subject of declining voter participation; and

BE IT FURTHER RESOLVED, that the American Bar Association supports
the enactment of legislation that encourages voter participation, eliminates
mechanical barriers to voting and provides for fair redistricting pursuant to the
1980 census without regard to partisan advantage; and

BE tT FURTHER RESOLVED, that the state and local bar associations be

urged to support and join with the American Bar Association in this program to
improve and enhance voter participation.

REPORT (Excerpts)

3. Redistricting Pursuant to the 1980 Census

Many of the participants in the Palo Alto conference' stated that persons fre-
quently do not vote because politically motivated manipulation of the borders
of legislative districts has prevented citizens from developing a sense of com-
munity identity with the area in which they vote. Also, such districting practices

actively skew the voting power that does exist, such as when cohesive com-
munities are broken into several legislative districts. Such gerrymandering was

said to have resulted to a large extent from the judicial prescription of "one man,
one vote." The sense of the conferees was that legislative districts can comply
with that principle and still represent cohesive communities. Accordingly, they
suggested that, at the next chance for redistricting, the ABA take an active role in
supporting fair and representative legislative districts, drawn without regard to
partisan advantage.

Among our recommendations for action is that the Association support the

concept of fair redistricting pursuant to the 1980 census. We believe that there

.Symposium on Citizen Participation in Government, sponsored by the Special Committee on Elec-

tion Law and Voter Participation, June 1978. See proceedings published in The Disoppeoronce of the

American Voler (19791.

should be a statement of principle at this time because of the proximity of the
census, following which virtually every state will be required to redraw the bound-
aries of congressional and state legislative districts. we believe that well in ad-
vance of the required redistricting the Association should be on record in support
of the goal of fair representation for all citizens without regard to partisan aduan-
tage. In this regard, we should note that one of the recurrent themes at the palo
Alto conference was that one of the side effects of gerrymandering was a lack of
competition in electoral politics, thereby decreasing the level of participation.
our redistricting recommendation does not endorse any specific method of reap-
portionment. Toward that end we plan to sponsor a future conference on the
subject of redistricting. *

'Held in San Diego, California, June 1980. Attended by approrimately forty election law experts,
state legislators, attorneys, citizcn groups and mathematiciins, thc thri{ayiession has bcen tran-
scribed for publication. s* Representation and Redbtricting in the l9gk, ed. by Grofman, Lijphart,
McKay, and Scarrow (Lerington Books, 1981, forthcoming).

3l30



A "N'""'II ::YJ L",E REPORT
ON REDISTRICTING

(Excerpts, August l9E0)

Since its last report to the House of Delegates in February 1980, the Special

Committee has focused its attention on three major areas of election law:

redistricting, absentee voting, and campaign finance.

REDISTRICTING: Introduction

In February 1979 the House of Delegates of the American Bar Association

adopted, on ih. recommendation of our Committee, a series of resolutions on

the subject of voter participation, among which was a resolution calling for "fair
redistrilting pu.suant to tlie 1980 census without regard topartisan advantage'"

In launching a program to encourage voter participatio-n,- the Association

authorized oirr Committee to co-sponsor, with the National Science Foundation,

a conference on representation and apportionment issues in the 1980s.

This conference was held in san Diego, california, June I l-15, 1980' It was at-

tended by distinguished political scientists, mathematicians, reapportionment

and election law experts, representatives of congressional and state legislative

committee staffs, lawyers, and representatives of various public interest groups

including the League of Women Voters, Common Cause and the Mexican

nm..ica-n Legal frfense and Educational Fund. The conference discussions

io.ur.J on sich districting subjects as the use of single-member. districts, the

i"g"f .iit".iu for determini-ng ttr" fairness of single-member districts' electoral

,r,"ectranisms other than singli-member districts, the policy consequences of reap-

portionment, representation within the political party system, and theories of
iepresentation. A number of scholarly papers were prepared for the-conference'

;hi"h, along with commentaries on the proceedings, will be published in a
t"put"t. volime.t We believe this volume will be an invaluable aid to members

of iigislatiue bodies, lawyers and judges, as they grapple with-the important

i"pr"i.nt"tion and appoitionment issues of the 1980s. How these issues are

handled will be of criiical importance to our nation and to the integrity, vitality

and effectiveness of our electoral system and government for the next ten years'

For that reason, we believe it of great importance that a national dialogue be

opened at this time on the mixed ligal and political issues of redistricting and

iJ"ppo.iionrnent. Although our examination of these issues will continue into

ig8i t". felt it valuable Io set forth in this informational report some of the

p..firin"ry conclusions we have reached as a result of our study of this area'

General Observations

We feel that the entire probtem of reapportionment and redistricting is ex-

ceedingly complex, and quite possibly does not permit a national solution that

.Or. p"p.r pr.sented at the conference, by Professor Michel Balinski, raised questions about the for-

*"1" ,irr should apply in allocating congressional seats among the states' Another paper' by Professor

Si."in Crrrr, ,rgg.ri.d the introiucrion of a new voting system called "approval voting"'

is either appropriate or realistic in all fifty states. Of fundamental concern is the
fact that reapportionment and redistricting are important aspects of deciding the
allocation of political power within an electorate.

Because the districting process amounts to an allocation of political power and
because of the obvious conflicts in having the legislatures control the process,
various proposals have been submitted, some of which would create independent
commissions to do the actual job of redrawing district lines. While these com-
mission proposals may have merit (a proposition on which we now express no
opinion, pro or con), it is probably utopian to expect that many legislatures are
now prepared to adopt such proposals.

We do feel, however, that the time is ripe for each state to consider the stan-
dards it will apply in its actual redistricting process. Adopting standards before
beginning the actual districting process has at least three advantages. First, it
would make more open and public the bases upon which political power would
be reallocated. Second, it would establish a framework for accomplishing the
redistricting itself. And third, it would establish the benchmark against which the
eventual districting plan could be evaluated by the public, the press, and (in the
event of judicial appeal) the courts.

An underlying assumption is that the redistricting process-both the adoption
of standards and the drawing of district lines-should be open and public. It is
certainly apparent that the conflicts of interest inherent in the process are reduced
by public and media scrutiny.

The Districting Standards

The next, and most fundamental, question is, specifically, what should these
standards be? While one scholar has identified at least sixteen standards, not all
possible standards will be relevant or appropriate in each state.i Nonetheless,
there are certain basic standards which deserve consideration in every state.

The most obvious standard is population equality. Ever since the "apportion-
ment" decisions of the U.S. Supreme Court, very close population equality has
been constitutionally required. Many states have set their own standards in this
regard, and it is worth noting that some states allow even less population variance
from district to district than do the federal court decisions.

Other standards include the extent to which electoral districts should be com-
pact andlor contiguous; follow local political boundaries; and be drawn to con-
centrate identifiable groups (whether political, ethnic, or economic) in the
district.

Two other standards, which have not received the indepth judicial scrutiny
that population equality has, pertain to the functioning of a democratic form of
government. The first of these is the principle that the party or faction receiving a
state-wide majority of votes should also receive a majority of the seats in the
legislature, so that it is able to carry out its mandate to govern. Another standard
involves an application of the principle of competitiveness so as to ensure voter
interest in district elections.

tThe San Diego conference volume will contain an cxtremely useful section on the criteria for
redistricting and reapportionment.

3332



rn considering the "o"o,,ll""lillj,:::,Jfi].ate 
wir.be r11d-with some

"#;il-;h;i"".r. 
1,irx u.."*., ry adopting and following one standard, a

state may in certain ."r* ,r"t" it i*irorriut. to folto* another. Therefore, the

adoption of standards iilti:;i1;"guire their prioritization' The critical point is

thatbecausetheprocessisaairncutton",no,uisthetimeforthestatestobegin
i"iiirg *it it. .o*pr.*ities of redistricting before the process is upon us.

Single-Member Districts as a Norm

As a result of its consideration of the consequences of using different types of

districting, ou, Co*rittee Uelieres that a iingle-member districting system

;;;;;;hy tt the best anJ most effective form of district representation'

Single_memb., airtriir'"ifor" ,oi"rc in a district to choose one representative,

i.e., one legislator or one county commissioner' Multi-member districting per-

mits a citizen to select more than one representative' The geographical area and

ffiJaii", ;f multi_mimber districts are usually much larger than those of a

single-member district.Eo*. rtut"t"na localities ise a combination of single and

multi-member districts,ji;ilii"";t:i";ge elections, where all-voters in a political

subdivision vote for ;;;;;i6t;sentitives. The impact of districtine is fun-

damentally the same no ,nrit.r'r"rrat type of governmental entity (city, county'

state) is involved.
Infavoringtheuseofsingle.memberdistricts,wenoteth.atsuch.adistricting

system has worked *.fiioi."orgtessional elections. Authorities who have studied

the subject point to a numbeiof advantages to the single-member. districting

.system:r a single-meriU.i ai.t.i"t is smallei than an atJarge or multi-member

iil.t.i, ,"t i"tri.rrni6 
"foto 

.ont"ct between the single representative and his or

her constituency. fhesm"tierdistrict also provides greater.accountability to the

electorate, who wilt U, il.ti.i irfrrmed of ihe activities and voting record of the

sole representative. tn-allition, poriti."r and racial minority groups who at times

have had their voting p;;;;a'rilngin aitutro by larger multi-member districts

will have greater irnpJ.t on the elections and a betler opportunity for election to

office from wirhin t#il;il: Fin"tty, 
"t""tion 

campaigns wourd also be affected

by the choice or singte+nemuer districting. It is likeiy t-hat campaign costs would

be decreased u, " 
,"r-Ji-of;;;irt thJ size of the area and population of a

districtandlimitingtheelectiontoonerepresentative.Thenatureofcampaign-
ing might atso ctrangelui iJargrrult e impact and necessity of extensive media

advertising.Moreeffortcouldthenbeexpendedonneighborhoodandlocalcam-
paigning, which shouid allow the electorate to become better acquainted with the

candidates.signincantlv,uy."au.ingthecostofcampaigns,itislikelythatmore
i.Oiriar"ft t 6uld be aLi" io tu' for office' thereby making the process more

comPetitive.
Whilesingle-memberdistrictingisbynomeansthepanaceatorepresentation

problems, we betieve it would g6 a tong wav toward t:tl'1i.9-1tre effective

I"pr"r..titi"n ana a gie"ter op-portuniti to participate in-g<ivernment and the

electoral Process
The foregoing discussion outlines the intricate nature of the redistricting ques-

tion. In view of th. ;;;il- itsuls which reqtdre resolution before "fair district-

*,r..s'"olo.conferencevolumewillcontainanextensivesectiononthissubject.

l4

ing without regard to partisan advantage" can take place, our Committee urges

thit legislators-, lawyers and all reapportionment experts take up the question at

this time.

Respectfully submitted,

John D. Feerick, Chairman

August 1980

35



APPENDIX D
Further References

Adams, Bruce. ,,A Model state Reapportionment Process: The continuing

a;;;t for ,Fair and Effective RepresCntation,' " Harvard Journal on Legis'

lation. June 1977, at 825-904.
Baier, Cordon. "Redistricting in the Seventies: The Political Thicket Deepens,"

National Civic Review. June 1972.

Barone, Michael, G?ant Ujifusa and Douglas Matthews. The Almanac of
American Politics. New York: E.P. Dutton,1979'

noyd, Williarn J.D. "Apportionment and Districting: Problems of Compli-

ance," National Civic Review. April 1971, at 199-203'

Common Cause. Reapportionment: A Better Wqy' Washington' D'C"
November, 1977.

Conlr.ssional Research Service. The Voting Rights Ac! o! 1965, as Amended:

H"istory, Effects & Alternatives. Washington, D'C', U'S' Government Print-

ing Office, June 1975.

Council of State Governments. Reapportionment in the Sevenlies. Lexington,

KY, 1973.
Derfner, Armand. ,,Nlulti-Member Districts and Black voters," 2 Black Law

Journal. Summer 1972, at 120-129.

Dixon, Robert, Jr. ..,One Man, one vote'-what Happens Next?" Notional

Civic Review, MaY 1971, at259'296.
Grofman, Bernard, Arend Lijphart, Robert McKay and Howard Scarrow (eds.).
- 

nrpirt ntotion & Redisiicting in the 1980s. Lexington Books, 1981.

X*i[n, Carotyn and Susan W. Wanat. "Reapportionment: The Issues," Srare

Government, Vol. 45, No.4. Fall1972, ar214'221'
McKay, Robeit. ,.Reapportionment: Success Story of the Warren Court," 67

Michigan Law Review 223 (1978).

Niemi, flicnard and J. Deegan, Jr. "Theory of Political Districting," American

Political Science Review 72. December 1978, at l3M-1323'
O'Rourke, Terry. Reapporlionment Law, Politics, Compulers' American En-

terprise lnstitute. Washington, D.C.' 1971.
pols6y, Nelson (ed.). Reop-portionment in the 1970s. University of California

Press, Berkeley, CA', 1971.

Smith, b"org" Bundy. i'The Failu.. of Reapportionment:-Th-e E{fect of Reap-- 
porii"rrJnt on thi Election of Blacks to Legislative Bodies," 18 Howard Law

Journal 639 (1975).
W.ir, David. i"Affirmative Gerrymandering' Compo_unds Districting Prob-

lems," Nalionat Civic Review. January 1978, at ll-17'
Woffo.i, Andrea (ed.). Reapportionment: Low and Technology' National Con-

ference of State Legislatures, June 1980.

36