[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8. Elections and Election Campaigns]
[A. Apportionment; Voting Districts]
[§ 3. Districting Requirements; Duty of States]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 848-856]
CHAPTER 8
Elections and Election Campaigns
A. APPORTIONMENT; VOTING DISTRICTS
Sec. 3. Districting Requirements; Duty of States
After Congress has allocated a certain number of Representatives to
a state following a census,(12) some method must be
appointed by the state legislature for the election of such
Representatives. The power of a state legislature under article I,
section 4 of the U.S. Constitution, to divide the state into districts
to elect and to be represented by Members of the House is unquestioned,
although the way in which the state districts itself may be directed by
federal statute or by court order. A state must redistrict itself to
reflect changes in its allocated representation in the House as well as
population shifts indicated by the census.(13)
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12. See 2, supra.
13. See Sec. 1, sup a, for a discussion of the delineations of power
between Congress, the states, and the courts over the census,
apportionment, and congressional districting.
See also, Schmeckebier, Congressional Apportionment
(Washington, 1941); Celler, Congressional Apportionment--Past,
Present and Future, 17 Law and Contem. Prob. 286 (1952);
Hearings on Congressional Districting (H.R. 8953 and related
proposals), subcommittee No. 5, House Committee on the
Judiciary, 92d Cong. 1st Sess.
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[[Page 849]]
The first attempt by Congress to exercise its constitutional power
over state districting under article I, section 4, providing for
preemption of state law by federal law over election procedure, was
undertaken in 1842, when Congress provided that states with more than
one Representative should establish single-member districts of
contiguous territory.(14) The single-member districting
requirement was eliminated in 1850 (15) but reinstated in
1862.(16) In 1872, Congress added a requirement that
districts be as equal in population as practicable (17) and
in 1901 a requirement was added that districts be compact as well as
contiguous.(18) The three requirements--of single-member
districts, of contiguity, and of compactness--were consolidated in the
Reapportionment Act of 1911.(19)
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14. Act of June 25, 1842, 5 Stat. 491.
15. Act of May 23, 1850, 9 Stat. 428.
16. Act of July 14, 1862, 12 Stat. 572.
17. Act of Feb. 2, 1872, 17 Stat. 28.
18. Act of Jan. 16, 1901, 31 Stat. 733.
19. Act of Aug. 8, 1911, 37 Stat. 13.
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Between 1842 and 1911 Congress did not enforce the statutory
provisions mandating state districting requirements for congressional
elections. In 1842, 1901, and 1910,(20) the House rejected
challenges to rights to seats based on state noncompliance with the
federal districting standards. There was, in addition, some question as
to the power of the courts to enforce the requirements for
congressional districts.(1)
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20. 1 Hinds' Precedents Sec. Sec. 310, 313; 6 Cannon's Precedents
Sec. 43.
1. See the following language in Oregon v Mitchell, 400 U.S. 112, 121
(1970): ``And in Colgrove v. Green, 328 U.S. 549 (1946), no
Justice of this court doubted Congress' power [under article I,
Sec. 4] to rearrange the congressional districts according to
population; the fight in that case revolved about the judicial
power to compel redistricting.''
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When the Apportionment Act of 1929,(2) establishing a
permanent procedure for apportionment of seats in the House, was
enacted, none of the prior districting requirements were included
therein. Following that legislative action, the Supreme Court in a 1932
case ruled the federal districting standards no longer
operative.(3)
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2. Act of June 18, 1929, 46 Stat. 26.
3. Wood v Broom, 287 U.S. 1 (1932). See also Exon v Tiemann, 279 F
Supp 603 (D. Neb. 1967).
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[[Page 850]]
In 1946, when Illinois voters sued in federal court to enjoin the
holding of a forthcoming congressional election, claiming
constitutional and statutory violations of districting requirements,
the Supreme Court affirmed the dismissal of the case because the
statutory requirements had been superceded by the 1929 Reapportionment
Act, and because the issue presented a nonjusticiable political
question.(4) The Court pointed to article I, section 4 of
the Constitution as conferring ``upon Congress exclusive authority to
secure fair representation by the states in the popular House'' and
stated that if Congress failed in that respect, ``the remedy ultimately
lies with the people.'' (5)
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4. Colgrove v Green, 328 U.S. 549 (1946).
5. Id. at p. 554.
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In 1964, the Supreme Court invalidated for the first time, in
Wesberry v Sanders, a Georgia congressional districting statute which
accorded some districts more than twice the population of
others.(6) The political-question doctrine of Colgrove v
Green (7) was overruled in reliance on the state
apportionment case of Baker v Carr.(8) The Court held in
Wesberry that the command of article I, section 2 of the Constitution
that Representatives be chosen by the people of the several states
means that as nearly as practicable one man's vote in a congressional
election is to be worth as much as another's.(9) The Court
did not establish specific requirements for congressional districts,
stating that although it may not be possible to draw them with a
mathematical precision, equal representation for equal numbers of
people was the fundamental goal of redistricting.(10)
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6. 376 U.S. 1 (1964). See also the companion case, Wright v
Rockefeller, 376 U.S. 52 (1964) (failure to show racially
discriminatory districting in New York).
7. 328 U.S. 549 (1946).
8. 369 U.S. 186 (1962).
9. 376 U.S. 1 at pp. 7, 8 (1964).
10. The court drew on the Constitutional and Ratifying Conventions to
demonstrate that the purpose of the ``Great Compromise'' was to
afford equal representation for equal numbers of people in the
House of Representatives. Id. at pp. 13, 18.
By 1968, the majority of congressional district lines had
been redrawn, with only nine states having a population
deviation in excess of 10 percent from the state average, and
24 states having no deviation as large as five percent. McKay,
Reapportionment: Success Story of the Warren Court, 67 Mich. L.
Rev. 223, 229 (1968).
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The Supreme Court decision in Wesberry impelled Congress to act
[[Page 851]]
upon federal redistricting requirements, and in 1967 a bill was enacted
into law requiring that districts be limited to a single
member.(11) No other congressional requirements were
established, although attempts were made to legislate allowable
percentage variances of congressional districts.(12)
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11. See Sec. 3.3, infra.
The single-member district requirement of 2 USC Sec. 2c
removed the prior command of 2 USC Sec. 2a(c) that elections be
held at-large upon legislative failure to redistrict. Preisler
v Secretary of State, 279 F Supp 952 (W.D. Mo. 1967), aff'd,
394 U.S. 526 (1969), rehearing denied, 395 U.S. 917 (1970).
12. See Sec. 3.3, infra. For other attempts to enact federal
districting standards, and the procedure by which their
consideration was governed, see Sec. Sec. 3.43.7 infra.
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In 1969, the Supreme Court reenforced the Wesberry opinion by
invalidating congressional redistricting in Missouri, where districts
were several percentage points above or below the mathematical ideal.
The Court would allow only ``the limited population variances which are
unavoidable despite a good faith effort to achieve absolute equality,
or for which Justification is shown'' (13) and stated that
economic, social, or political factors do not suffice for justification
of variances.(14) The Court added that districting could be
based on eligible voter population rather than total population, if
accurately and completely computed, and that population shifts over a
10-year period could be anticipated in redistricting but findings as to
such shifts must be thoroughly documented and systematically applied
statewide.(15) In other decisions on congressional
redistricting the Supreme Court has required a state showing of good
faith effort to achieve precise mathematical equality among all
districts,(16) and has applied a test of practicability,
under the particular circumstances of the state involved, in drawing
districts.(17)
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13. Kirkpatrick v Preisler, 394 U.S. 526 (1969). See also the companion
case, Wells v Rockefeller, 394 U.S. 542 (1969) (state must
demonstrate good faith effort to achieve precise mathematical
equality among congressional districts).
14. Kirkpatrick v Preisler, 394 U.S. 526 (1969).
15. Id. See also Lucas v Rhodes, 389 U.S. 212 (1967) (per curiam),
where the court affirmed the finding of unconstitutionality
applied to congressional redistricting in Ohio where unofficial
but incomplete post-census population figures were taken into
account.
16. Wells v Rockefeller, 394 U.S. 542 (1969) (New York State).
17. Dinis v Volpe, 264 F Supp 425 (D. Mass. 1967), aff'd, 389 U.S. 570
(1968) (per curiam).
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[[Page 852]]
The allowable population variance in percentage points for any
district from the state average remains undefined. However, it has been
held that a state plan providing for some districts with twice the
population of others in the same state,(18) or which vary 25
percent from the state population norm,(19) is
unconstitutional. A variance of 10 percent to 15 percent has been both
accepted and rejected by the Court.(20)
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18. Wesberry v Sanders, 376 U.S. 1 (1964).
19. Dinis v Volpe, 389 U.S. 570 (1968) (per curiam).
20. See the dissenting opinion of Justice Harlan in Rockefeller v
Wells, 389 U.S. 421 (1967) (per curiam), stating that the Court
had left the lower courts and Congress without guidance for
congressional redistricting. See also his dissenting opinions
on the same subject in Grills v Branigin, 390 U.S. 932 (1968)
(stay denied) and Lucas v Rhodes, 389 U.S. 212 (1967) (per
curiam).
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On the subject of ``gerrymandering,'' or the drawing of
congressional district lines with the motivation or affect of
benefiting an incumbent, political party or racial group,(1)
the Supreme Court has stated that citizens challenging a congressional
redistricting act on the grounds of racial discrimination must show
either racial motivation or actual districting along racial
lines.(2)
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1. See Guide to Congress, pp. 502, 503, 505, 506, Congressional
Quarterly Inc. (Washington 1971).
Districting requirements for special election to fill
vacancy, Sec. 9, infra.
2. Wells v Rockefeller, 376 U.S. 52 (1964). The Court has more
pointedly addressed gerrymandering in districting for state and
local elective officials. See, for example, Gomillion v
Lightfoot, 364 U.S. 339 (1960).
See also Edwards, The Gerrymander and ``One Man, One
Vote,'' 46 N.Y.U.L. Rev. 879 (1971).
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Some disputes have arisen concerning the validity under state law
of redistricting action taken by the states. Following the 1930 census,
a series of cases arose in which the right of the Governor to veto a
reapportionment bill was questioned. The U.S. Supreme Court ruled that
the state function to redistrict itself for congressional elections was
legislative in character and therefore subject to gubernatorial veto
under the same terms as other state legislation.(3)
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3. See Smiley v Holm, 285 U.S. 355 (1932); Koenig v Flynn, 285 U.S.
375 (1932); Carroll v Becker, 285 U.S. 380 (1932).
In Grills v Branigin, 284 F Supp 176 (D. Ind. 1968), aff'd,
391 U.S. 364 (1969), a federal court held that only the state
general assembly had the power to create congressional
districts, an elections board lacking legislative power under
the state and federal constitutions.
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[[Page 853]]
Congressional Standards for Districting
Sec. 3.1 In transmitting the 1950 census results to Congress, the
President recommended the adoption by Congress of federal standards
for congressional districting.
On Jan. 9, 1951, the President transmitted pursuant to statute the
results of the 1950 census to Congress.(4) Within his
message on the census he included an appraisal of the wide
discrepancies in congressional districting among the states and
recommended that Congress re-establish former statutory requirements of
compact, contiguous single-member districts with as nearly as
practicable an equal number of inhabitants. The message also supported
Congress' power, under article I, section 4 of the Constitution, to
establish congressional districting requirements and to compel
compliance therewith.(5)
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4. 98 Cong. Rec. 114, 82d Cong. 1st Sess.
5. Legislation in response to the President's message was introduced
by Emanuel Celler, of New York, Chairman of the Committee on
the Judiciary, in the 82d and subsequent Congresses but was not
acted upon. See, e.g., H.R. 2648, 82d Cong. 1st Sess. (1951);
H.R. 6156, 82d Cong. 2d Sess. (1952); H.R. 6428, 83d Cong. 1st
Sess. (1953); H.R. 8239, 84th Cong. 2d Sess. (1956).
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Sec. 3.2 The Committee on the Judiciary has recommended in reports on
districting legislation that Congress establish specific guidelines
in the absence of judicial standards.
On several occasions since the Supreme Court's entry into the field
of congressional districting,(6) the Committee on the
Judiciary, which has jurisdiction over congressional
districting,(7) has submitted reports on proposals to
establish standards for congressional districting by the states. On
those occasions, the committee has recommended that such guidelines be
adopted due to the failure of the judiciary to prescribe definite
standards.(8)
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6. See Wesberry v Sanders, 376 U.S. 1 (1964).
7. Rule XI clause 13(b), House Rules and Manual Sec. 707 (1973).
8. H. Rept. No. 191, Committee on the Judiciary, 90th Cong. 1st Sess.
(1967); H. Rept. No. 486, Committee on the Judiciary, 92d Cong.
1st Sess. (1971); H. Rept. No. 140, Committee on the Judiciary,
89th Cong. 1st Sess. (1965). Justice Harlan, in his dissenting
opinion in Rockefeller v Wells, 389 U.S. 421 (1967) (per
curiam), cited the latter report for the proposition that the
Court had left both the lower courts and Congress without
guidance in drawing congressional district lines.
[[Page 854]]
Sec. 3.3 Except to require single-member congressional districts,
Congress has declined since 1929 to set standards for congressional
districting by the states.(9)
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9. Congress has affirmed that it has the constitutional power to
establish congressional districting requirements. See 111 Cong.
Rec. 5080, 89th Cong. 1st Sess., Mar. 16, 1965; 113 Cong. Rec.
11064-71, 90th Cong. 1st Sess., Apr. 27, 1967.
Prior to 1929, Congress required that the states district
themselves so as to produce compact, contiguous, and single-
member congressional districts. See the act of Aug. 8, 1911,
Ch. 5, Sec. 30, 37 Stat. 14. That act, which was formerly
codified as 2 USC Sec. 3, expired by its own limitation upon
the enactment of the Reapportionment Act of June 18, 1929, Ch.
28, 46 Stat. 21, as amended, 2 USC Sec. 2a. See Wood v Broom,
287 U.S. 1 (1932), where the Supreme Court held that the 1911
act had become inoperative upon the enactment of the 1929 act.
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In 1967, Congress required that all states establish a number of
districts equal to the number of Representatives to which each such
state is so entitled, with one Representative to be elected from each
such district.(10)
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10. Pub. L. No. 90-196, 81 Stat. 581, Dec. 14, 1967 (2 USC Sec. 2c).
Districting legislation in the 90th Congress as originally
proposed by the House Committee on the Judiciary and as passed
by the House provided not only for single-member districts but
also for compactness and contiguity, and fixed a maximum
percentage variance among districts. 113 Cong. Rec. 11089, 90th
Cong. 1st Sess., Apr. 27, 1967. The Senate desired a smaller
and more immediate percentage variance, and never reached
agreement with the House on the bill. 113 Cong. Rec. 31712,
90th Cong. 1st Sess., Nov. 8, 1967.
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The Congress has declined to set any other standards as to
congressional redistricting by the states.(11)
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11. See, for example, the legislative history of H.R. 5505, 89th Cong.
1st Sess. (1965), and H.R. 8953 and 10645, 92d Cong. 1st Sess.
(1971); see also the announcement of the Chairman of the
Committee on the Judiciary describing committee action taken on
a redistricting bill, 117 Cong. Rec. 28945, 28946, 92d Cong.
1st Sess., Aug. 2, 1971, and the committee's report, H. Rept.
No. 92-486, 92d Cong. 1st Sess. (1971).
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Consideration of Districting Legislation
Sec. 3.4 Legislation regulating congressional redistricting has been
considered in the Committee of the Whole.(12)
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12. 113 Cong. Rec. 11071, 90th Cong 1st Sess., Apr. 27, 1967; 111 Cong.
Rec. 5084, 89th Cong. 1st Sess., Mar. 16, 1965.
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Sec. 3.5 Legislative proposals setting standards for congres
[[Page 855]]
sional districting have been considered by the House pursuant to a
special rule or order limiting amendment of the proposal.
On Mar. 16, 1965, Howard W. Smith, of Virginia, Chairman of the
Committee on Rules, offered House Resolution 272, providing that H.R.
5505, on federal standards for congressional districting, be considered
under limited power to amend.(13) After some debate, a
``modified closed rule'' was adopted by the House.(14)
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13. 111 Cong. Rec. 5080, 89th Cong. 1st Sess.
14. Id. at p. 5084.
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On Apr. 27, 1967, the House adopted House Resolution 442, providing
for a ``closed'' rule on H.R. 2508, requiring the establishment of
congressional districts of contiguous and compact territory, and for
other purposes.(15) Mr. B.F. Sisk, of California, a member
of the Committee on Rules, explained that the closed rule was proposed
because of the complicated provisions of the legislation and because of
the urgency of passage, although closed rules were not normally
considered for such legislation.(16) Opposition to the
closed rule was voiced by Mr. John Conyers, Jr., of Michigan, and Mr.
Richard L. Ottinger, of New York, because of the serious constitutional
and political issues raised by the bill.(17)
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15. 113 Cong. Rec. 11071, 90th Cong. 1st Sess.
16. Id. at pp. 11064, 11065.
17. Id. at pp. 11069, 11070.
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Sec. 3.6 To a joint resolution proposing a constitutional amendment
relating to the election of the President and Vice President by
popular vote rather than through the electoral college process, an
amendment pertaining to standards for congressional districting was
ruled not germane.(18)
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18. An amendment providing for the redistricting of states has also
been held not germane to a bill dealing with reapportionment.
71 Cong. Rec. 2364, 2444, 2445, 71st Cong. 1st Sess., June 6,
1929.
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On Sept. 18, 1969, the House was considering in the Committee of
the Whole a joint resolution proposing an amendment to the Constitution
providing for a popular vote rather than an electoral vote for the
offices of President and Vice President.(19)
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19. 115 Cong. Rec. 25966, 91st Cong. 1st Sess. (H.J. Res. 681).
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An amendment was offered by Mr. Thaddeus J. Dulski, of New York,
requiring that the states establish compact and contiguous single-
member districts for con
[[Page 856]]
gressional elections. Chairman Wilbur D. Mills, of Arkansas, ruled that
the amendment was not germane to the joint resolution, since nothing in
the resolution pertained to the apportionment or election of
Representatives.(20)
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20. Id. at pp. 25983, 25984.
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Unequal Representation in Primary
Sec. 3.7 The House refused to overturn an election in a state with a
``county unit'' primary election system, where less populous
counties were entitled to a disproportionately large electoral vote
for nominees.
On Apr. 27, 1948, the House adopted without debate House Resolution
553, dismissing the Georgia election contest of Lowe v
Davis.(1)
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1. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.
See also Ch. 9, infra, for election contests generally.
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Parliamentarian's Note: The House in this case refused to
invalidate the Georgia ``county unit'' system for primaries, requiring
use of county electoral votes rather than popular votes for choosing
nominees. Under the system each candidate was required to receive a
majority of county unit votes for nomination, and unit votes were
allotted in favor of less populous counties rather than strictly by
population.(2)
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2. See the elections committee report in the case, H. Rept. No. 1823,
80th Cong. 2d Sess. (1948). The Supreme Court later invalidated
the use of the ``county unit'' system. Gray v Sanders, 372 U.S.
368 (1963).
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