[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8.  Elections and Election Campaigns]
[A. Apportionment; Voting Districts]
[Â§ 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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