Congressional Redistricting -- A Public Information Monograph

    CONGRESSIONAL 
REDISTRICTING 

A Public Information Monograph 

AMERICAN BAR ASSOCIATION 
Special Committee on Election Law and Voter Participation  



Additional Publications of ABA Special 
Committee on Election Law and Voter Participation 

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

Order from Fordham Law Review, 140 W. 62nd Street, 

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Public Financing of Elections: A Constitutional Division of the Wealth, 1975. Study by 
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CONGRESSIONAL REDISTRICTING 

: ABA Special Committee 
on Election Law and Voter Participation 

John D. Feerick, Chairman 1979-80 
Steven J. Uhlfelder, Chairman 1980-81 

Charles G. Armstrong 
Judith Areen 
Marvin S. Arrington 
Joel L. Fleishman 
Scott M. Matheson 

Abelardo 1. Perez 
Dale W. Read, Jr. 

Elissa C. Lichtenstein, Staff Director 

  

DIVISION OF PUBLIC SERVICE ACTIVITIES 

AMERICAN BAR ASSOCIATION 

WASHINGTON, D.C. JUNE 1981 

   



The views set out in this report 
have not been considered by the 

ABA'’s House of Delegates and do 

not constitute the position of the 
American Bar Association except 

where explicitly noted as such. 

Copyright ©1981 American Bar Association 

Library of Congress Catalog Card No. 80-69481 

Special Committee on Election Law and Voter Participation 
Congressional Redistricting 
Washington, D.C. 

  
Acknowledgements 

Appreciation is hereby expressed 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-Committee authorities on congressional redistricting, for valuable review, 
critique and advice on manuscript drafts and content.  



TABLE OF CONTENTS 

PREFACE 

I. INTRODUCTION 
How Congressional Seats are Now Allotted 
A Brief History of Redistricting 

II. THE CURRENT REDISTRICTING SYSTEM 
Gross Population Inequality: Past Injuries Healed 

Current Redistricting Problems: The Gerrymander 
Why Gerrymandering Harms 

An Overview of Reform Proposals 
Common Cause Proposal: Model for State Self-Improvement 
Federal Guidelines with Redistricting Commission Requirement . .. 
Federal Guidelines Without Commission Requirement 

11. THE ISSUES: ARE STANDARDS NEEDED? ............ccrv.van. 9 
To What Extent Should Standards be Articulated? ................ 9 

In Defense of Standards 
In Opposition to Standards - Encroachment on States’ Rights 
Absence of Standards Throughout the Nation’s History 
Encouragement of Litigation 
Standards: Conflicts or Priorities? .......... 0 ci eee ine inion: 10 

Examination of Specific Standards 
Population Equality 
Political Subdivisions 
Contiguous Territory . ic... sav ania srn snot va bons 12 

Compactness 

‘‘Antigerrymandering’’ Standards 
Other Considerations: ‘Affirmative Gerrymandering’’ Practices 

Time Provisions 

IV. THE ISSUES: WHO SHOULD MAKE THE 
REDISTRICTING DECISIONS? «iia. ivi ie ina vas 18 
Who Should be the Redistricting Rulemakers? .................... 18 

Contentions as to Congressional Authority 
Contentions as to State Legislative Authority 

Who Should be the Initial Apportioning Authority? ............... 19 
Accountability Provisions: Who Should Judge the Plan? 

V. CONCLUDING OBSERVATIONS 

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



  

  

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 1960s. 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 ail 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 and 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 for 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.* 

*See conference volume, Representation and Redistricting in the 1980s, Grofman, Lijphart, McKay, 
Scarrow, eds. (1981, forthcoming)  



The Committee would, therefore, welcome views, reactions, and suggestions 
from 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 1981 

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.* 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 Congressional Seats are 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.** 

The population figures used are those provided by the decennial U.S. census. 
The President transmits 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 sends the chief executive of each 
state a certification of the number 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 History of Redistricting*** 

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

*The drawing of legislative districts (those from which representatives to a State House or Senate are 
chosen) is also central to fair representation, yet entails certain issues separate from those involved in 

congressional redistricting. For a more detailed discussion of legislative redistricting, see Toward a 

System of Fair and Effective Representation, Common Cause (Washington, D.C., 1977). Unless 

otherwise indicated, ‘‘redistricting’’ will refer only to congressional linedrawing. 

**U.S. Constitution, Article I, Section 2, clause 3; 2 U.S.C. § 2a. 
*** Reapportionment’ refers specifically tc distributing seats in established units of government, 

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 silent on the issue before 1841. However, since that time, it has enacted several pieces of legislation to alter the congressional 
reapportionment system, with congressional involvement peaking in the early twentieth century. The current congressional redistricting law was passed in 1929. It contains very few directives but does mandate that representatives be appor- tioned every ten years according to the then most recent U.S. decennial census, based on the principle of equal representation (see Appendix A). Except for an act passed in 1976 which banned at-large elections (i.e., those where the entire 
state votes for all seats to which the state is entitled), Congress has not recently imposed any redistricting rules on the state legislatures. * 

Until 1962, in the landmark case of Baker v. Carr, 369 U.S. 186, the courts trailed far behind state legislatures and Congress in their involvement with reap- 
portionment.** Indeed, in the 1946 case, Colegrove v. Green, 328 U.S. 549, the Supreme Court asserted that it had neither a judicial responsibility nor a right to address the redistricting question, on the grounds that it was a political issue. Baker v. Carr, however, offered a dramatic departure from the previous stance of judicial “laissez-faire,” in ruling that federal courts do have authority to judge whether districts are apportioned fairly. Some controversy, however, still exists concerning the appropriate roles of Congress and the courts in this area. 

2 USC. § 2. 
**See Appendix A for summaries of major cases affecting redistricting. 

2 

II. The Current Redistricting System 

Gross Population Inequality: Past Injuries Healed 

Despite the requirement that congressional districts be redrawn every ten years so that each district has approximately the same population size, many states have had congressional districts whose populations varied dramatically. A study by the Brookings Institution revealed that in 1962 half of the states with more than one congressional district (21 states out of 42) had constituencies in which the smallest district contained less than fifty per cent of the population of the largest district. * 
In the 1964 case of Wesberry v. Sanders, 376 U.S. 1, the Supreme Court con- demned this gross inequity. It voided Georgia's redistricting plan, deciding that the population disparities among congressional districts violated the spirit of Article I, Section 2 of the Constitution. Articulating what is frequently referred to as the ‘“‘one person, one vote’’ or “‘as nearly as practicable’’ standard, the Court wrote that ‘‘as nearly as practicable, one [person’s] vote in a congressional election is to be worth as much as anothers.” Following the 1970 redistricting, most districts adjusted to this mandate: 402 of the 435 congressional districts were within 1 per cent of the district population average for their state. 

Current Redistricting Problems: The Gerrymander 

Even though major inequities in the area of population disparity have been greatly reduced, redistricting reformers contend that substantial and avoidable injustices remain. These defects result largely from the practice of ‘“‘gerrymander- ing.” 
What is “‘Gerrymandering?’ In 1812, the Massachusetts state legislature cre- ated a dragonlike district to benefit the Democratic party over which then Gover- nor Elbridge Gerry had tremendous influence (see Figure I). Drawing a head, claws and wings on a picture of the district, painter Gilbert Stuart exclaimed that it looked like a salamander. Editor Benjamin Russell, however, noted that ‘“‘ger- rymander’’ would be a more appropriate name, in ‘“‘honor’’ of the governor. Since then, the term has generally referred to the drawing of district boundary lines for the purpose of giving some individual or group a political advantage. It is important to note that gerrymandering is detectable in terms of its impact, not necessarily by the shape of the district. ** 
Gerrymandering typically involves the use of one of two techniques to dilute the influence of “minorities” in the electoral process. *** It may concentrate minority 

*A. Hacker, Congressional Districting: The Issue of Equal Representation, (Brookings Institution: Washington, D.C. 1964). 
**A strangely shaped district may, for example, merely be following natural topographical features. See B. Grofman and H. Scarrow, ‘‘Representation and Redistricting in the 1980s”, Policy Studies Journal (1981, forthcoming). 
***In this discussion, “‘minority”’ refers generally to any group whose influence the line-drawers are attempting to reduce. Thus, it can include racial and ethnic minorities, challengers, members of minority factions within the party that is in control of the state legislature, and minority parties. 

3  



Figure 1 

The Original Gerrymander 

MIDDLETON 

CHELSEA 

Reprinted from Congressional Districts in the 1970s (2nd Ed.) with permission of Congressional 
"Quarterly. 

strength in a few districts, thus wasting minority votes. To illustrate, a state with 
ten districts and a minority comprising 30 per cent of the state’s population dis- 
tributed as shown in Figure 2 could draw district lines in at least two ways. One 
of 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 that minorities would constitute 
100 per cent of the population in three districts (as in Figure 4), thus reducing the 
changes of a minority candidate being elected in other districts. It shouid be 
noted, however, that the courts have rarely concluded that this minority- 
concentrating technique violates minorities’ constitutional rights. 

Figure 2 Figure 3 Figure 4 

    77 

2 7 7 
  

    
  

  

                                        

Note: 22227777, denotes minority 

A second technique is the conscious dilution of minority strength. By this 
strategy, a minority group that is concentrated in one geographic 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 in any. 

4 

Why Gerrymandering Harms. Many individuals denounce any type of gerry- mandering. Indeed, a former director of the National Municipal League’s iegis- lative redistricting information service contends that the evils which are meant to be alleviated by requiring population equality are simply accomplished through 
gerrymandering: 

It was inevitable that this gerrymandering problem would become 
worse, not better, as a direct result of the Supreme Court’s rulings 
regarding population equity during the 60s and '70s. The incentive for 
resort to the gerrymander was much less when the legislature could easily accomplish the same thing by simply making districts of wildly different 
populations. * 

In addition to general condemnation, however, the following specific charges have been leveled at gerrymandering practices: 

It reduces the opportunity Jor ethnic minorities to be elected: the previously described techniques have often contributed to minority underrepresentation in Congress. While blacks comprise approximately 
13 per cent of the nation’s population, less than 3 per cent of congres- sional representatives were black at the beginning of the 1980s. Hispanics constitute approximately 9 per cent of the population, but make up only 1 per cent of the House of Representatives. 

It reduces the opportunity for political minorities to be elected: members of parties not controlling the state legislatures, or members of the ma- jority party who break with prevailing party views, also have fallen vic- tim to the gerrymandering sword. Florida’s 1972 reapportionment plan, for example, resulted in Democrats winning 75 per cent of the 15 con- gressional seats, while receiving only 53 per cent of the statewide vote, ** And at least two recent political mavericks have been the target of their own party’s gerrymandering initiatives. In 1975, Chicago’s Democratic boss, the late Mayor Richard Daley, proposed an odd-shaped district plan, remarkably similar to the original Massachusetts gerrymander, which was narrowly rejected by the Democratic-controlied state legis- lature, and which many observers felt was designed to weaken an out- spoken Daley opponent (Democrat Abner Mikva) who went on to win the contested congressional seat (see Figure 5). The 1972 California reap- portionment apparently was designed, among other reasens, to protect incumbents of both parties. Yet, it was not designed to benefit a minori- 
ty among incumbents, a liberal, anti-war Republican (Paul McCloskey) who nevertheless was reelected. 
It unduly protects incumbent seats: this reduces competition and enables parties to field weak candidates. If potential candidates perceive that in- cumbents are drawing district lines to ensure their own reelection, challengers may be less likely to enter the race. In 1978, 11 per cent of the winners in congressional races ran unopposed. Moreover, even new- 

*Congressional Anti-Gerrymandering Act of 1979; Hearings on S.596 Before the Senate Committee on Governmental Affairs, 96th Congress, 1st Sess. 286 ( 1979) (statement of William Boyd, (hereinafter cited as 1979 Hearings). 
**1979 Hearings at 50 (statement of David Cohen, President, Common Cause). 

5  



Figure 5 

Reapportionment Plan 

(Illinois Tenth Congressional District) 

\ 
  

  

NORTHFIELD 
NEW 

    
  

EVANSTON 

    
  

Naswaos 

[] CHICAGO 
PROVISO 

— 

  

  

  

            
  

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. * 

It discourages voter participation: 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 involvement. 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 

*This is not to imply that preservation of existing district lines is necessarily undesirable or harmful. 

From the incumbent legislator’s perspective, a familiar constituency may be valuable if he or she is to 

represent constituents’ views accurately. 

6 

participation.* While voter turnout in House of Representatives races 
was about 44% in 1970, it fell to approximately 35% 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 get from my house to the rest of my district 
without paying a toll. ** 

In addition, once candidates are elected, they might show more respon- 
siveness to the needs of the line-drawers 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, *** advocates for improving 
reapportionment cite the significant injustices just discussed and demand a more 
equitable system. The call for reform is bipartisan and nationwide. 

Various groups and opinion-leaders in the nation are demanding that the 
redistricting system be improved. The Washington Post, the Wall 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 recent years. California, Colorado, Hawaii, Iowa, and Oregon 
have adopted strict redistricting standards, and Colorado, Hawaii and Montana 
have established redistricting commissions. Organizations expressing support for 
redistricting reform include the American Bar Association, the National Associa- 
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 41 opposed. 

*See ABA Special Committee on Election Reform. The Disappearance of the American Voter 
(Washington, D.C., 1979). 
**1979 Hearings at 312 (statement of the late Allard Lowenstein, Representative from New York's 5th 
Congressional District, 1968-70). 
***E.g., the National Conference of State Legislatures, (NCSL) a national organization of approx- 
imately 7000 state legislators and their staffs.  



Examples of the major national initiatives are: 

The Common Cause Proposal—A Model for State 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: 

® 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; 
redistricting standards. These are 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;* 
accountability provisions. In 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. 

Federal Guidelines with Redistricting Commission Requirement. Senate Bill 
596 and its House companion H.R. 2653 (96th Congress, 1st 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 opportunity to decide individually 
on a number of ‘specifics ’’ in the way in which they will adhere to the more 
general federal mandates. 

Federal Guidelines without Commission Requirement. H.R. 1516 and its com- 
panion in the Senate, Amendment 237 (96th Congress, 1st Session) offer another 
reform approach. Although the two bills vary slightly, both are based on sugges- 
tions from the House Wednesday Group.** The major differences between these 
bills and the previously mentioned congressional proposals is that H.R. 1516 and 
S. Amendment 237 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. 

ae aad a 

Rather than address the totality of strengths and weaknesses of each major 
proposal, it may be more valuable to review individually major components or 

*For further discussion of standards, see Part III. 
**Comprised of thirty-two moderate to liberal Republican members of the U.S. House of Represen- 

Latives. 

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 redistricting 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 Standards be Articulated? 

Some groups claim that the most important aspect of redistricting reform is the 
establishment of specific rules which must be followed when drawing congres- 
sional district boundaries. Indeed, if fair redistricting standards are made so ex- 

plicit that line-drawers cannot abuse their discretion in interpreting them, 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 certain 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 aefinition 
is formulated. Moreover, as might be expected, some electoral experts are op- 
posed to explicit standards, particularly federal ones. 

In Defense of Standards. A 1979 editorial in the Washington Post stressing the 
need for standards (particularly to provide courts with reviewing guidelines) 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 plans] 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.’’* Indeed, many have 

viewed standards as perhaps the most important 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. ** 

* Washington Post, June 21, 1979. 

**Wells, ‘Affirmative Gerrymandering’ Compounds Districting Problems, National Civic Review 
(January 1978) at 17. 

9.  



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 least 
in principle. Yet, there is a significant measure of opposition. 

In Opposition to Standards— Encroachment on States’ Rights. The National 
Conference of State Legislatures has expressed concern that 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 would retain a significant 
influence in appointing commission members. Of course, this influence would be 
limited by reform proposal restrictions on who could be appointed. 

Absence of Standards throughout the Nation’s History. It 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 legislative or congressional 
redistricting. Standards supporters, however, assert that (i) perhaps the federal 
standards which were renewed and embellished from 1842 to 1911 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 Litigation. 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 standards 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 the courts will recognize and 
would assess their prospects with greater care. 

Standards: Conflicts or Priorities. 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 meaningful 
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 standards to govern redistricting 
plans.’’* 

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

*1979 Hearings at 400 (statement on behalf of NCSL of State Senators S.H. Runyan, Arizona, Ross 
Doyen, Kansas, and Charles Vickery, North Carolina). 

10 

  

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 Reynolds 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 equa! in population as practicable, some popu- 
lation deviations were permissible if ‘‘based on legitimate 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 of 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 some standards can be 
modified to accommodate others and, if so, what these ranges might be. 

Examination of Specific Standards 

Against this backdrop, it is appropriate now to examine individual standards 
which have been proposed, where on the priority scale each might be placed, how 
clearly these can and should be defined in law, and how much a given standard 
should be modified to accommodate other standards. 

Population Equality. Past congressional statutes, Supreme Court decisions, 
and virtually all major reform proposals agree that congressional districts should 
strive for equal population size. According to the Congressional Quarterly, 385 
of the existing 435 congressional districts are within 1 per cent of the average 
district population within their states, thus confirming the efforts of states to 
adhere to this requirement.* Nevertheless, many issues with regard to this stan- 
dard remain unresolved and a good number turn on definitions of “population 
equality.” Most definitions set forth a percentage of population deviation 
allowable from a state’s average population in a congressional 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 tolerances if the 
maximum deviation were within the permitted range. Yet this presumption might 
be overcome by showing that a given plan, nevertheless, ‘‘operated 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 1979 
Senate proposal, for example, (S. 596**) allows the largest district to be 4 per cent 
greater than the smaller district (i.e. permits deviations from the average district 
of up to 2 per cent). Advocates defending the broader ranges assert that they pro- 
vide a greater opportunity to accommodate other relevant standards and, that 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. 1974) at 1. 
**96th Congress, Ist Session. 

11  



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 definition of “popu- 
lation equality,’” there seems to be a consensus that some standard of this kind is 
a necessary (albeit not alone sufficient) requirement 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 must at 
least strive for strict mathematical equality. 

Political Subdivisions. Over 200 counties are split up among congressional 
districts more than is required by their state’s population average. Many 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 unnecessary fragmentation 
undermines the ability of constituencies to organize effectively, but also because 
it increases the likelihood of voter confusion regarding other elections based on 
political subdivision geographics. Futhermore, preserving political subdivisions 
tends to foster a sense of community. 

Still not settled, however, 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’’ standard, 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 fulfilled. Most groups place preservation of 
political subdivisions second only in importance to ‘‘population equality.’ 

Other criticisms of the high priority accorded preservation of political subdivi- 
sions boundaries cut more deeply than those just mentioned. It is charged that 
honoring subdivisions preserves the ‘‘status quo,” a change in which may 
sometimes be needed in order to eliminate undue incumbent power in fair distric- 
ting situations. Representatives from MALDEF, for example, have expressed 
concern that this standard may jeopardize minority voters: “|The standard 
which requires maintaining the boundaries of political subdivisions is unwar- 
ranted. In order to maximize the voting strength and enhance the opportunity for 
minorities to be elected, it is often necessary to split cities or counties which have 
large concentrations of minority citizens.”’** 

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

*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. 

**Letter dated September 27, 1972, Abelardo Perez, then Associate Counsel for MALDEF, to 
Senator Danforth (R-Illinois) sponsor of S. 596. : 

12 

deed, even though not required by the Constitution or by federal law, contiguity 
is almost always observed in congressional districts.* 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. 

Compactness. 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 1-1 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. Geographically 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 would be 
logical for one district might be quite inapplicable to another. Thus, general 
language requiring the aggregate lengths of district boundaries 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 codes. 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. 

“Antigerrymandering’’ Standards. Some endorsers of standards believe that 
even if the previously mentioned requirements are carefully articulated and en- 
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 line-drawers who, while 
devising a means of fulfilling the previous requirements, still intentionally manage 
to structure district lines which establish an undue political advantage. ** 

*In fact, a federal court, in Kopald v. Carr, 343 F. Supp. 51 (M.D. Tenn. 1972) imposed a re- 
quirement of contiguity where that requirement was not mandated by state statutes. In addition, 
redistricting expert Bruce Adams has noted that, *. . . two state statutes and twenty seven 
constitutions require contiguity.” {‘*A Model Reapportionment Process: The Continuing Quest for 
‘Fair and Effective Representation’,”’ 14 Harvard J. on Legislation, June 1977 at 874). 
**See Backstrom, Robins and Eller, “Issues in Gerrymandering: An Exploratory Measure of Partisan 
Gerrymandering Applied to Minnesota,” 62 Minn. L. Rev. No. 6, July 1978, which points cut that 

13  



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 results 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 from 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). In 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 provisions 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 theory of geographical representation. If a ‘‘fair system’’ is defined 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. *** 
Many political 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. An 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 at any proposed districting in terms of 

statistical calculations on how likely the expected seats-votes relationship it would give rise to could 

have occurred by chance. 

*Common Cause, “Toward a System of ‘Fair and Effective Representation’,’”’ (Washington, D.C., 

1977) at 55. 
** Adams, “A Model Reapportionment Process’ supra, at 879. 

***See Backstrom, ‘‘Issues in Gerrymandering,”’ supra. As measured in Backstrom’s terms, fair 

representation is not proportional representation. 

14 

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.* 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: ‘‘Affirmative Gerrymandering’’ Practices 

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. Lightfoot) and federal legislation 
(the Voting Rights Act of 1965) prohibit such practices.** 

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 redistricting proposals: 

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

This approach seems to be supported by Supreme Court pronouncements 
[United Jewish Organizations v. Carey, 430 U.S. 144, (1977)]; the NAACP has 
also gone on record in support of ‘‘affirmative gerrymandering’: 

Whereas, courts, including the Supreme Court, have recognized that it 
is sometimes necessary 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 would 
restrict legislatures or other entities in their efforts to correct the under- 
representation of blacks in Congress. **** 

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. 

In 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 Gaffney v. Cummings, 412 U.S. 735 (1973) and White v. Regester, 412 U.S. 755 (1973) in 
support of Supreme Court neutrality in this area. 

**42 U.S.C. §§ 1971, 1973 ef seq. 
***1979 Hearings at 342 (statement of George Bundy Smith). 

**** Althea Simmons, Director, Washington bureau, NAACP, quoting statement of the Association 
enunciated during NAACP’s 70th annual convention. 

15  



Act.* Mobile’s at-large system of elections was alleged to cause discrimination 
against minority groups. The Supreme Court ruled against plaintiffs, finding that 
the intent to discriminate had not been proved as required in a Section 2 chal- 
lenge.** This particular election system had been established in 191 1, 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 neither 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 and 
perpetuated regardless of their effect on voting strength. 

While a requirement which prohibits dilution of minority voting strength 
would lean toward Plan B instead of Plan A in an illustrative four-district urban 
area such as graphically portrayed in Figure 6, the “affirmative gerrymandering’ 
approach might favor Plan C (at the cost, it is noted, of some geographic ger- 
rymandering). 

Figure 6*** 

Plan B 

/ LIOEr 

  

  
  

  

  

  

                  

                    

  

  

Note: 227777777, 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 course, that even 
though minority constituencies will not necessarily elect minority representatives, 
the larger 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- 
cedure shall 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 1973b(f)2 of this title.” Section 2 is interpreted as a restatement of the 
Fifteenth Amendment which requires a showing of purposeful discrimination. 
**64 L. Ed. 2d 119 (1980). 
***Each box represents a state; divisions denote districts. Equal population distribution is assumed. 

16 

the practical impact of such “‘affirmative gerrymandering,”’ some political 
analysts seriously question its theoretical foundation, maintaining that while 
redistricting should not contribute to discrimination, neither should it carry the 
burden of compensating for past discriminatory practices. In the words of one 
expert: 

[A] racial quota [affirmative gerrymandering] could easily be super- 
imposed on a legisiative body which is elected by a system of propor- 
tional representation. It could simply be required that a particular 
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 the U.S. Congress 
and every one of the state legislatures) is to mix two f: undamentally 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: 

* completion of a proposed redistricting plan; 
* voter challenge; 
* initial court review; 
* formulation of an acceptable plan if the initial plan is rejected; 
* 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 individuals 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 problem of 
ultimate plan acceptance after census figures have become outdated or after 
crucial elections have passed. 

Perhaps the most crucial time problems arise in connection with drafting of 
initial and final plans. Some experts suggest that a time limit be set only for the 
final product. Interim time limits are unnecessary, they assert, if the final plan is 
accepted before political interests can predominate. The voter challenge time 
period is also a subject of controversy. Some proposals allow voters to challenge 
plans up to 60 days after they have been made public, while others allow up to 
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 other hand, offers citizens a 
greater opportunity to participate in the apportionment process and to hold line- 
drawers accountable. Generally speaking, some articulated time limits, perhaps 
more as a target than as a rigid goal, would seem desirable in reapportionment 
standard-setting. 

* ok ok kk 

*Wells, ‘‘ ‘Affirmative Gerrymandering’ Compounds District Problems,’’ National Civic Review 
(Jan. 1978) at 16. 

17  



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 mandated redistrict- 
ing standards as an important element for improving the electoral process. 

IV. The Issues: Who Should Make the 
Redistricting 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. 

Who Should be the Redistricting Rulemakers? 

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

Contentions as to Congressional 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 the] ‘‘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.* 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 State Legislative 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 mandated 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 

*See Appendix A, Baker v. Carr, Ex Parte Siebold, Oregon v. Mitchell. 

18 

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.** 

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 manner. Perhaps, then, the most crucial question to be 
answered is who should have responsibility for drawing district boundaries. 

Who Should be the Initial Apportioning Authority? 

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 atiracted 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 Illinois Congressman testified in 1979 that taking 
redistricting out of legislative hands ‘greatly reduces the inherent conflict of in- 
terest which now exists when the same people who draw a new map and vote on it 
also have a personal stake in its outcome.’’*** 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- 

*1979 Hearings at 404 (statement on behalf of NSCL of State Senators S. H. Ru- 
nyan, Arizona, Ross Doyen, Kansas, and Charles Vickery, North Carolina). 
**E.g., see discussion of Standards, at page 10. 

***1979 Hearings at 302 (statement of Abner Mikva, formerly 10th Congres- 

sional District, Illinois, presently a member of the Circuit Court of Appeals for 
the District of Columbia). 

19  



nerable to political pressures than a legislature elected by the public. Commission 
supporters 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 commission (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.* 

Critics of the commission 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 conflict 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- 
missions 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 party controlling the state legislature more than have 
the other methods. *** 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 con- 
cept, commission proponents point to other data that tend to corroborate the im- 
proved commission track record. First, many reformers take issue with the 
‘handful of states’’ estimate. In fact, most estimates are that between 25 percent 
and 35 percent of current house district lines were drawn by the courts. A 1973 
study by the Council of State Governments concluded, moreover, that commis- 
sions seemed to establish better track records than state legislatures.**** Other 
analysts point to commissions in other countries (e.g., Australia, Canada, and 

*Adams, ‘“A Model Reapportionment Process: The Continuing Quest for ‘Fair and Effective 
Representation,’ ’’ supra 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. 
***1979 Hearings at 424 (statement of Eric Uslaner). 

**+*Council of State Governments, Reapportionment in the Seventies 11 (1973). 

20 

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, i.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 
1971 to 1973, the California legislature invested approximately $1 miilion 
developing a redistricting plan (which was ultimately replaced by a court- 
appointed Special Masters’ Committee plan) and in 1971 there were over 26 full- 
time legislative staff members working on the California redistricting. Hawaii's 
reapportionment commission spent about $200,000; Montana’s spent approx- 
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’’ approach, advocates of state 
legislature line-drawing advance several positive claims. It is commonly asserted 
that state legislatures have not abused their discretionary powers. It is argued that 
since forty-two states have a population deviation of less than 1 per cent (i.e., in 
these states, the popuiation of the greatest district does not exceed by more than 1 
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 that rule, they have made a “good 
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- 

*Adams. ‘A Model Reapportionment Process: The Continuing Quest for ‘Fair and Effective Rep- 
resentation’,”’ supra at 856, n. 115. 
**1979 Hearings at 401 (statement of North Carolina State Senator Charles Vickery, citing Congres- 
sional Quarterly). 

21  



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

ment, to the detriment of viable state government. 

Constitutional questions also have been raised in this area, especially with re- 

spect to congressional authority to specify the method of commissioner selection. 

Plans requiring certain state legislators to appoint commission members, for ex- 

ample, might violate the ‘‘appointments clause’’ of the Constitution which re- 

quires that certain ‘Officers of the United States’’ be nominated by the President 

and confirmed by the Senate.* 

Three congressmen advanced this argument in 1979 before a House Subcom- 

mittee, pointing out that it was their understanding that (i) commission proposals 

do not specifically define whether a commission would be a state or federal agen- 

cy, (ii) if a federal agency has more than investigatory and informatory powers, 

its members must be selected in conformity with the ‘appointments clause,” and 

(iii) since the commissions would be responsible for making reapportionment 

decisions (clearly more than investigatory and informatory powers), the constitu- 

tionality of their selection by party members in the state legislatures would clearly 

be put into question.** They also suggested that congressional specifications as 

to commission selection and membership might violate states’ rights under the 

Tenth Amendment, by requiring rather than authorizing state officials to per- 

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

espousing redistricting commissions who see no ‘‘appointments clause” issue 

where purely legislative functions are involved (as in preparing district plans) and 

discern in the broad federal authority recognized by the courts over congressional 

elections the legitimate power to specify redistricting procedures such as commis- 

sion mechanisms.*** Thus, it appears that the issue of congressionally mandated 

reapportionment commissions must await judicial interpretation for final con- 

stitutional validation (although little constitutional question exists that the states 

may proceed with this technique on their own initiative). 

A further line of thinking in this vein merely dismisses commissions as lacking 

relevancy and meaning with respect to the problems of fair apportionment. On 

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

standards and if there are ‘‘accountability”’ provisions serving as a check on the 

redistricting authority, it makes little difference what body holds the redistricting 

responsibility. Thus, each individual state should choose whatever method of 

* Article II, Section 2, cl. 2: ‘‘He shall have power, by and with the advice and consent of the senate, to 

make treaties, provided two-thirds of the senators present concur; and he shall nominate, and by and 

with the advice and consent of the senate, shall appoint ambassadors, other public ministers and con- 

suls, judges of the supreme court, and all other officers of the United States, whose appointments are 

not herein otherwise provided for, and which shall be established by law. But the Congress may by law 

vest the appointment of such inferior officers, as they think proper, in the president alone, in the 

courts of the law, or in the heads of departments.” 

#21979 Hearings at 35-36 (statements of Representatives James Leach, Robert Kastenmeier, and 

William Frenzel relying on Buckley v. Valeo, 424 U.S. 1 (1976), interpreting the case as holding in part 

that if a federal agency has more than investigatory and informatory powers, member selection must 

conform to the ‘appointments clause.””). 

**+Sece, e.g., 1979 Hearings at 67-75 (statement of Common Cause General Counsel K. Guido, The’ 

Constitutionality of the Antigerrymandering Act of 1979, relying on Ex Parte Seibold (1880), Smiley 

v. Holm (1932), and Oregon v. Mitchell (1970), as establishing Congress's clear power to divest states 

of all control over redistricting and, therefore, also to exercise more limited prerogatives of specifying 

procedural rules and methods for that function.). 

22 

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

other major requirements. On the other hand, there are those who remain skep- 

tical about articulating any reform measures, feeling that those who wish to ex- 

ploit the redistricting process for reasons of political self-interest will find a way 

to circumvent even the most clearly defined rules. 

Accountability Provisions: Who Should Judge the Plan? 

Even if the initial reapportioning authority has built-in fairness safeguards in 

terms of character, independence, representativeness, and procedural standards, 

it must be recognized that unforeseen injustices may still result. Thus, the major 

reform proposals all incorporate some accountability provisions. These include: 

providing for open hearings when the line-drawers are considering 

redistricting options; 

e requiring public notice of redistricting hearings; 

e making the record of any hearings publicly available (perhaps by 

publication in legislative journals); 

affording the opportunity to qualified voters to challenge a proposed 

plan within a reasonable period (affording sufficient time to become 

acquainted with the line-drawing proposals and to prepare necessary 

information for the challenge, but not so long as to delay unduly final 

determinations) and, possibly, with waiver or reimbursement of at- 

torney’s fees for successful challenges; 

placing authority in federal courts for expeditious review of plans, 

either through challenge initiatives or automatically; and 

allocating responsibility for replacing inadequate or objectionable 

plans—the redrawing to be accomplished by initial redistricting body, 

new group, or the courts. 

With respect to judicial review measures, questions arise concerning what 

specific time provisions should be included in the authorizing bills, and whether 

there should be automatic judicial review as opposed to review only of those 

cases which are challenged. Automatic review now occurs for legislative reappor- 

tionment plans in Colorado, Florida and Kansas. It offers the advantage of a 

routine and more thorough check on initial plans, as courts may catch im- 

proprieties which public scrutiny misses. However, automatic review also raises 

questions. In particular, it is interpreted as permitting the courts too great a role 

in the redistricting process.* The underlying argument stresses that the legislative 

and not the judicial branch of government should possess the primary authority 

over redistricting; the courts should not operate as the ultimate arbiter and ap- 

prover of electoral system arrangements of this kind. An additional problem 

identified with respect to automatic judicial review is that the courts must make a 

judgment without the benefit of the adversarial process, a role for which they are 

not optimally suited. 

*See, e.g., White v. Weisler, 412 U.S. 783 (1973) where the Court rejected a Texas redistricting plan 

on the basis of ‘‘avoidable’ deviations. Four justices dissented, asserting that the ruling in effect 

established a de minimus rule for state legislatures where the state was not even required to justify 

population variances. 

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. Similarly, 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 Observations 

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 (largely 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.* 

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. 

*See Appendix B. 

Federal rules governing redistricting standards, rather than governing methods 
to apply these standards, however, may be beneficial, although existing uncer- 
tainties as to the best ‘“‘mix’’ and order of priority among the most commonly 
cited standards (e.g., population equality, compactness, contiguity, avoidance cf 
intentional political preference) suggest 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; 
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 
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 of society can benefit from congressional redistrict- 
ing improvement which aids the American electoral machinery in functioning ac- 
cording to our highest ideals of representative government. The time is right—for 
thought, for decision, and for new levels of achievement. 

 



APPENDIX A 

IMPORTANT DATES IN REDISTRICTING HISTORY 

STATE 
LEGISLATIVE/ 

DATE ACTOR EVENT DESCRIPTION CONGRESSIONAL 
  

1842 11.8. 5 Stat. 491 First federal statute requiring states C 
Congress to establish congressional districts. 

First congressional attempt to im- 

pose standards in congressional re- 

districting: compactness, conti- 
guity, single-member districts. 

U.S. 17 Stat. 28 Reiterated 1842 standards; set 
Congress forth population equality stan- 

dard. Reiterated in 1882, 1891, 
1901. 

U.S. Ex Parte Congress has supreme authority 
Supreme | Siebold over congressional election rules. 
Court 

1:8: 1,2,37 Stas. Reiterated 1872 requirements. 
Congress | 13,14 Fixed number of U.S. House 

members at 435. 

1.8. 46 Stat. 21 Required automatic reapportion- 
Congress ment on basis of population after 

each decennial census. 

LS. Ex. Rel. Congress has ‘‘authority to provide 
Supreme | Smiley v. a complete code for congressional 
Court Holm elections.” 

(Minnesota) 

U.S. Colegrove Courts lack authority to judge 
Supreme v. Green fairness of a political matter such 
Court (Illinois) as redistricting plans. 

U.S. Gomillion v. | Gerrymandering of city boundaries 
Supreme Lightfoot with a clearly defined racial motive 
Court (Alabama) is unconstitutional. 

1.8. Baker v. Federal courts have authority to 
Supreme | Carr judge fairness of legislative 
Court (Tennessee) | redistricting plans. 

LLS. Wesberry v. | *‘One man, one vote” (“as nearly 
Supreme | Sanders as practicable’’) standard: strict 

Court (Georgia) numerical equality among popula- 

tions in congressional districts.             
   



ACTOR EVENT DESCRIPTION 

STATE 
LEGISLATIVE/ 
CONGRESSIONAL 

  

U.S. 
Supreme 
Court 

U.S. 
Supreme 
Court 

U.S: 
Congress 

u.S. 
Supreme 

Court 

U.S. 
Congress 

1.8, 
Supreme 
Court 

U.S. 

Supreme 
Court 

1.8. 
Supreme 

Court 

1.8. 
Supreme 

Court     

Reynolds v. 

Sims 
(Alabama) 

Wright v. 
Rockefeller 

(New York) 

Voting Rights 
Act, 42U.S.C., 
1971.1973 
et seq. 

Burns v. 

Richardson 
(Hawaii) 

21.8C. 8 2c 

Swann v. 
Adams 

(Florida) 

Kirkpatrick 
v. Preisler 
(Missouri) 

Wells v. 
Rockefeller 
(New York) 

Oregon v. 
Mitchell 
(Oregon)     

Both houses in state legislature 

must meet the “‘as nearly as prac- 
ticable’’ standard; some deviation 

is allowed to accommodate other 

relevant considerations. (e.g., pre- 

serving political subdivisions). 

To prove gerrymandering un- 

constitutional on grounds of 
discrimination, challenger must 

show evidence of discriminatory 

effect and purpose. 

States with past history of 

discrimination must submit elec- 

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 In- 

dians, Asian Americans, persons 

of Spanish heritage. 

Redistricting plans are not 
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 that de minimus 

numerical deviations are 
unavoidable in state legislative ap- 

portionment. 

States must make ‘‘good faith ef- 

fort’”’ to achieve ‘‘precise 

mathematical equality” and must 

justify all population deviations. 

Strict mathematical equality is re- 
quired. Invalidated plan which set 

up a New York congressional 

district with maximum deviation 

of 6.6%. 

Reiterated Congress's ultimate 
authority over congressional elec- 

tions. 

L 

    
  

DATE ACTOR EVENT DESCRIPTION 

STATE 
LEGISLATIVE/ 
CONGRESSIONAL 

  

1971 

    

U.S. 
Supreme 

. Court 

U.S: 

Supreme 
Court 

U.S. 
Supreme 
Court 

US. 

Supreme 
Court 

Us. 
Supreme 
Court 

U.S. 

Supreme 
Court 

l].S. 

Supreme 
Court 

U.S. 
Supreme 
Court   

Whitcomb v. 

Chavis 

(Indiana) 

Connor v. 
Johnson 
(Mississippi) 

White v. 

Regester 
(Texas) 

White v. 

Weiser 

(Texas) 

Gaffney v. 
Cummings 
(Connecticut) 

Mahan v. 

Powell 
(Virginia) 

United 
Jewish 
Organiza- 
tions v. 

Carey 

New York 

City of 
Mobile v. 
Bolden 

(Alabama)   

Multimember state legislative 
districts are not unconstitutional 

per se; 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 districts. 

Certain population deviations are 

permissible in legislative redistric- 
ting plans if effected to accom- 

modate rational state policies 

(e.g., preserving political subdivi- 
sions). Multi-member districting is 

unconstitutional if it dilutes the 
votes of a racial minority. 

Deviations of 2.43% above 

average and 1.7% below average 

in Texas congressional districting 

plan deemed unacceptable, since 
districts were not as 

mathematically equal as prac- 

ticable. 

States not required to justify 

minor population deviation in 

legislative districts; a legislative 

district plan may constitutionally 

be drawn with intent to reflect 
political make-up of state. 

Upheld a Virginia legislative plan 
which produced a maximum 

population deviation of 16.4%, 

deeming the plan a rational means 

to preserve political subdivisions. 

Racial criteria may be used in 

drawing legislative district lines if 

designed tc comply with Voting 

Rights Act. 

Public officials may be elected at- 
large even though preclusion of 

election of minorities may thereby 

result, where plaintiffs in non- 

Voting Rights Act jurisdiction fail 

to show intent to discriminate in 

the election mechanism or pro- 

cedure. 

L 

       



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 complete 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 IT 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 Disappearance of the 

American Voter (1979). 

30 

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 advan- 
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 approximately forty election law experts 
state legislators, attorneys, citizen groups and mathematicians, the three-day session has been tran- 
scribed for publication. See Representation and Redistricting in the 1980s, ed. by Grofman Lijphart 
McKay, and Scarrow (Lexington Books, 1981, forthcoming). : : 

31  



APPENDIX C 

ABA SPECIAL COMMITTEE REPORT 

ON REDISTRICTING 

(Excerpts, August 1980) 

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 the recommendation of our Committee, a series of resolutions on 

the subject of voter participation, among which was a resolution calling for fair 

redistricting pursuant to the 1980 census without regard to partisan advantage. 

In launching a program to encourage voter participation, the Association 

authorized our 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 11-15, 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 

American Legal Defense and Educational Fund. The conference discussions 

focused on such districting subjects as the use of single-member districts, the 

legal criteria for determining the fairness of single-member districts, electoral 

mechanisms other than single-member districts, the policy consequences of reap- 

portionment, representation within the political party system, and theories of 

representation. A number of scholarly papers were prepared for the conference, 

which, along with commentaries on the proceedings, will be published in a 

separate volume.* We believe this volume will be an invaluable aid to members 

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

representation and apportionment issues of the 1980s. How these issues are 

handled will be of critical 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 legal and political issues of redistricting and 

reapportionment. Although our examination of these issues will continue into 

1981, we felt it valuable to set forth in this informational report some of the 

preliminary conclusions we have reached as a result of our study of this area. 

General Observations 

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

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

*One paper presented at the conference, by Professor Michel Balinski, raised questions about the for- 

mula that should apply in allocating congressional seats among the states. Another paper, by Professor 

Steven Brams, suggested the introduction of a new voting system called ‘‘approval voting. 

32 

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.* 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 and/or 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 in-depth 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. 

*The San Diego conference volume will contain an extremely useful section on the criteria for 
redistricting and reapportionment.  



Standards: Conclusions 

In considering the adoption of standards, each state will be faced with some 

very hard choices. This is because, by adopting and following one standard, a 

state may in certain cases make it impossible to follow another. Therefore, the 

adoption of standards likely will require their prioritization. The critical point is 

that because the process is a difficult one, now is the time for the states to begin 

dealing with the complexities 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, our Committee believes that a single-member districting system 

generally is the best and most effective form of district representation. 

Single-member districts allow voters 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 

population of multi-member districts are usually much larger than those of a 

single-member district. Some states and localities use a combination of single and 

multi-member districts, including at-large elections, where all voters in a political 

subdivision vote for several representatives. The impact of districting is fun- 

damentally the same no matter what type of governmental entity (city, county, 

state) is involved. 

In favoring the use of single-member districts, we note that such a districting 

system has worked well for congressional elections. Authorities who have studied 

the subject point to a number of advantages to the single-member. districting 

_system:* a single-member district is smaller than an at-large or multi-member 

district, which permits closer contact between the single representative and his or 

her constituency. The smaller district also provides greater accountability to the 

electorate, who will be better informed of the activities and voting record of the 

sole representative. In addition, political and racial minority groups who at times 

have had their voting power and strength diluted by larger multi-member districts 

will have greater impact on the elections and a better opportunity for election to 

office from within the district. Finally, election campaigns would also be af fected 

by the choice of single-member districting. It is likely that campaign costs would 

be decreased as a result of reducing the size of the area and population of a 

district and limiting the election to one representative. The nature of campaign- 

ing might also change, by reducing the impact and necessity of extensive media 

advertising. More effort could then be expended on neighborhood and local cam- 

paigning, which should allow the electorate to become better acquainted with the 

candidates. Significantly, by reducing the cost of campaigns, it is likely that more 

individuals would be able to run for office, thereby making the process more 

competitive. 

While single-member districting is by no means the panacea to representation 

problems, we believe it would go a long way toward ensuring more effective 

representation and a greater opportunity to participate in government and the 

electoral process 

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

tion. In view of the complex issues which require resolution before “fair district- 

*The San Diego conference volume will contain an extensive section on this subject. 

34 

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

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

this time. 

Respectfully submitted, 

John D. Feerick, Chairman 

August 1980 

 



APPENDIX D 

Further References 

Adams, Bruce. “A Model State Reapportionment Process: The Continuing 

Quest for ‘Fair and Effective Representation,’ *’ Harvard Journal on Legis- 

lation. June 1977, at 825-904. 

Baker, Gordon. ‘Redistricting in the Seventies: The Political Thicket Deepens,’ 

National Civic Review. June 1972. 

Barone, Michael, Grant Ujifusa and Douglas Matthews. The Almanac of 

American Politics. New York: E.P. Dutton, 1979. 

Boyd, William J.D. “Apportionment and Districting: Problems of Compli- 

ance,”’ National Civic Review. April 1971, at 199-203. 

Common Cause. Reapportionment: A Better Way. Washington, D.C., 

November, 1977. 

Congressional Research Service. The Voting Rights Act of 1965, as Amended: 

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