Who Said to Scribble All Over the United States?: A Brief History of the Jurisprudence of Congressional Redistricting by Treasurer Ryan Trumbauer
Note: This brief is intended as an introduction to current events or specific policies. Any opinions expressed herein reflect only those of the author.
Politicians have drawn and redrawn Congressional districts countless times since the beginning of the new Republic. However, challenges to various redistricting techniques and outcomes, especially racial and political gerrymandering, have only entered the judicial system since the turn of the last century.
Prior to this involvement, Congress played little to no direct role in the construction and approval of federal and state electoral districts. Instead, Congress reserved this right to the states and only intermittently passed a series of apportionment acts that provided guidelines for states to consider while forming Congressional districts.
The 1842 Apportionment Act mandated that districts be composed of contiguous territory, meaning that a Representative could travel to every point within the electoral district without entering another Representative’s district. The 1872 Apportionment Act asserted that states should form districts with “as nearly as practicable an equal number of inhabitants” as any other district. The 1911 Apportionment Act required districts to adhere to general policies of equality, contiguity, and compactness. States were generally compliant to these requirements.
The 1929 Apportionment Act did not specifically contain any of the requirements established by the 1911 Act. In the first landmark redistricting case, Wood v. Brown (1932), the Supreme Court stated that Congress effectively repealed any previous requirements established, leaving the states free to redistrict as they choose without restrictions. Challenges to electoral districts were now to be argued in the courts on a case by case basis by arguing that some districts inherently violated principles embedded within the United States Constitution.
Outlined below are the landmark cases that constitute the jurisprudence of Congressional redistricting. The list is not exhaustive, but does provide ample evidence to understand the underlying drive for egalitarian and democratic reforms and the political question doctrine that some have attempted to remove the discussion of gerrymandering from the courts altogether.
1940s – 1950s – Stay Out of My District
Colgrove v. Green (1946) – A citizen from Illinois sought an injunction against the state holding an election because the Congressional districts allegedly lacked geographic compactness and population parity. The Court ruled that the Illinois districts were not unconstitutional because existing laws did not mandate districts to be drawn with compactness, geographic continuity, or equality in population in mind. Justice Frankfurter, in the majority opinion, reasoned that redistricting issues are of a political nature and, therefore, are beyond the jurisdiction of the Supreme Court; redistricting was an issue for the legislative chambers, not the courtrooms. In a famous dissent, Justice Black argued that while the Constitution does not contain an express provision mandating Congressional districts established by states have relatively equal populations, there is an underlying understanding that all votes should be given equal weight. His legal logic would be used in future cases.
South v. Peters (1950) – The Court reaffirmed Colgrove by asserting that redistricting of any kind was our of the purview of the Court.
1960s – The Reapportionment Revolution
Gomillion v. Lightfoot (1960) – Appellants in the case successfully argued that the districts within the city Tuskegee, Alabama were redrawn to expressly marginalize and disenfranchise African Americans. The Court ruled in favor of the appellants, stating that the electoral districts could be challenged on the grounds of improper discrimination. Justice Frankfurter ceded his early candor and stated that the Fifteenth Amendment protects against racially gerrymandered districts.
Baker v. Carr (1962) – The Supreme Court directly overruled Colgrove by reasoning that the Equal Protection clause of the Fourteenth Amendment protects against malapportionment. In this specific case, the state of Tennessee had not redrawn maps since 1901. During the 61 years that passed, the population divide between the urban and rural expanded so much that an urban voter only had 1/10 the voting power that a rural resident held.
Wesbury v. Sanders (1964a) – The Court upheld and clarified Baker. Justice Black famously argued,
“To say that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the principle of a House of Representatives elected “by the People,” a principle tenaciously fought for and established at the Constitutional Convention.”
Both Baker and Wesbury are credited with creating the “one-person, one-vote” precedent for Congressional districts.
Reynolds v. Sims (1964b) – The Court expanded the “one-person, one-vote” doctrine to state legislative electoral districts when it shot down state legislative districts in Alabama that violated the Fourteenth Amendment.
1980s-present: The Rocky Road Ahead
Michael v. Bolden (1980) – The Court established deliberated intent as a legal standard for future cases of racially discriminatory vote dilution that would be covered under the Fifteenth Amendment and the Voting Rights Act passed in 1965. This greatly increased the difficulty for challengers as they now had to prove that lawmakers must have “deliberately” drawn bad maps.
Mississippi Republican Executive Committee v. Brooks (1984) – Prior to the case, Congress decided to respond to the Bolden ruling by amending the VRA to state that racial discrimination cases could be based upon discriminatory outcomes rather than just discriminatory intent. The Court upheld this Congressional change to the VRA.
Thornburg v. Gingles (1986b) – The Court clarified what courts would interpret as “discriminatory” outcomes by establishing the Gingles test still used today. To prove unconstitutional vote dilution, one must show that there is: (1) a minority community geographically compact enough to create majority-minority district, (2) the community is political cohesive, and (3) there is bloc voting by the majority that will generally prevent the minority from electing its candidates of choice.
Davis v. Bandemer (1986) – The Court ruled that partisan gerrymandering claims were justiciable, but failed to establish a clear standard for the judicial review of the such claims.
Shaw v. Reno (1993) – The Court ruled against racially gerrymandered districts. By doing so, the Court established a precedent that future Equal Protection challenges to district maps be subjected to the standard strict scrutiny.
Shaw v. Hunt (1996b) and Bush v. Vera (1996a) – The Court ruled it would hold states to the highest scrutiny level when adjudicating equal protection challenges, but states could cite pre-clearance by the Justice Dept as a “compelling” interest for using race as a factor.
Vieth v. Jubelier (2004) – The Court ruled it could not intervene in districting on the grounds that partisan gerrymandering does not have a real standard for deciding them. Writing an opinion for the court, former Supreme Court Judge Justice Scalia claimed that the one-person, one-vote initiative is irrelevant to partisan gerrymandering. Why? Scalia stated that the current lack of a standard for determining gerrymandering was the current barrier to justiciability. If better metrics become available, a claim against political gerrymandering might be justiciable.
The history of gerrymandering and its presence in courts is long. However, the resolution is not over yet. Overall, four historical trends developed that hint at the quite contradictory tones that the Court has taken on the issue.
1. Political gerrymandering is a nonjusticiable political question.
2. In certain circumstances (i.e. race), political gerrymandering is a justiciable civil rights issue. (see Gingles)
3. Non-race-based gerrymandering issues may be justiciable providing the claim meets certain enumerated criteria.
4. Strictly political gerrymandering issues are justiciable.
Where will the jurisprudence of gerrymandering head next? Only time and future decisions will tell.
 Gerrymandering in America, McGann, Smith, Latner, and Keena. Chapter 7.