[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8.  Elections and Election Campaigns]
[A. Apportionment; Voting Districts]
[Â§ 4. Failure of States to Redistrict]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 856-858]
 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                   A. APPORTIONMENT; VOTING DISTRICTS
 
Sec. 4. Failure of States to Redistrict

    Congressional redistricting is a legislative function for the 
several states.(3) The failure of a state in this regard may 
arise either through neglect to pass any new districting legislation 
after reallocation of House seats or population changes reflected in 
the census, or through enactment of legislation which does not satisfy 
the requirements of the Constitution, federal statutes, or state 
law.(4)
---------------------------------------------------------------------------
 3. For discussion of state responsibility for congressional 
        districting, see Sec. Sec. 1, 3, supra.
 4. For past and present congressional districting requirements, see 
        Sec. 3, supra.
---------------------------------------------------------------------------

    Where a state's districting plan is defective, the remedy lies 
either with Congress or with the courts. Since Congress not only has 
the

[[Page 857]]

power to enact federal standards for congressional 
districts,(5) but also is the sole judge of the elections 
and returns of its Members,(6) the House has the power to 
investigate the congressional districting plan of any state and to deny 
seats to Members from states which have drawn defective district lines 
or no district lines at all.(7) There appears to be no doubt 
that Congress has the power to compel a state to redraw its 
congressional district lines in accordance with existing 
law.(8) However, the House has declined on at least three 
occasions to deny seats to Members from states in violation of federal 
districting statutes.(9)
---------------------------------------------------------------------------
 5. See U.S. Const. art. I, Sec. 4, clause 1. For the relationship of 
        that clause to federal districting standards, see Sec. 3, 
        supra.
 6. U.S. Const. art. I, Sec. 5, clause 1.
 7. However, a court finding that a particular state districting plan 
        is invalid does not cast doubt upon the validity of elections 
        in which Congressmen then serving have been elected, or upon 
        their right to serve out terms for which elected. Grills v 
        Branigin, 284 F Supp 176 (S.D. Ind. 1968), aff'd, 391 U.S. 364 
        (1969).
 8. ``And in Colgrove v. Green, 328 U.S. 549 (1946), no Justice of this 
        court doubted Congress' power [under U.S. Const. art. I, 
        Sec. 4] to rearrange the congressional districts according to 
        population. . . .'' Oregon v Mitchell, 400 U.S. 112, 121 
        (1970).
 9. See 1 Hinds' Precedents Sec. Sec. 310, 313; 6 Cannon's Precedents 
        Sec. 43.
---------------------------------------------------------------------------

    The federal courts and on some occasions the state courts have 
taken affirmative action to correct a failure of a state to 
redistrict.(10) In 1966, the U.S. Supreme Court first 
allowed a federal district court to itself draw congressional district 
lines in a state where the existing districting legislation was 
unconstitutional.(11) On the subject of judicial 
interference with the traditionally legislative function of 
congressional districting, the Court has stated:
---------------------------------------------------------------------------
10. See Hearings on Congressional Districting (H.R. 8953 and related 
        proposals), subcommittee No. 5, House Committee on the 
        Judiciary, 92d Cong. 1st Sess., pp. 141-160.
            Judicial intervention in the area of districting was 
        forecast: ``[T]hat the Constitution casts the right to equal 
        representation in the House in terms of affirmative 
        congressional power should not preclude judicial enforcement of 
        the right in the absence of legislation. Such judicial action 
        is commonplace in other areas.'' Lewis, Legislative 
        Apportionment in the Federal Courts, 71 Harv. L. Rev. 1057, 
        1074 (1958).
            Although the courts may review districting, they have no 
        power over the allocation of seats by Congress to the states. 
        See Saunders v Wilkins, 152 F2d 235 (4th Cir. 1945), cert. 
        denied, 328 U.S. 870, rehearing denied, 329 U.S. 825 (1946).
11. Maryland Citizens' Committee for Fair Congressional Districting v 
        Tawes, 253 F Supp 731 (D. Md. 1966), aff'd sub nom, Alton v 
        Tawes, 384 U.S. 315 (1966).
---------------------------------------------------------------------------

        Legislative reapportionment is primarily a matter for 
    legislative deter

[[Page 858]]

    mination and consideration and judicial relief becomes appropriate 
    only when the legislature fails to reapportion according to Federal 
    constitutional requisites in timely fashion after having had 
    adequate opportunity to do so.(12)
---------------------------------------------------------------------------
12. Dinis v Volpe, 264 F Supp 425 (D. Mass. 1967), aff'd, 389 U.S. 570 
        (1968) (per curiam).

Congressional attempts to restrict the power of the judiciary over 
congressional districting have not been successful.(13)
---------------------------------------------------------------------------
13. On Nov. 8, 1967, the Senate considered a conference report on H.R. 
        2508, to require the establishment of compact and contiguous 
        congressional districts, and for other purposes. A portion of 
        the bill, as reported from conference, provided that no state 
        could be required to redistrict prior to the 19th federal 
        decennial census unless the results of a special federal census 
        were available for use therein. See 113 Cong. Rec. 31708, 90th 
        Cong. 1st Sess. The language of the bill and its effect on the 
        power of the courts to compel congressional districting by the 
        states in accordance with the ``one man-one vote'' principle, 
        was extensively debated as to its clarity and 
        constitutionality. For challenges to the constitutionality of 
        the provision, see pp. 31696-31702. For remarks in support of 
        its constitutionality, see pp. 31707, 31708. The Senate 
        rejected the conference report (at p. 31712).
---------------------------------------------------------------------------

    A federal court may retain jurisdiction of districting matters 
pending appropriate action by the state legislature.(14) A 
federal court may postpone election processes to provide more time for 
redistricting,(15) but has allowed elections to be held 
under invalid districting where there was no other 
alternative.(16)
---------------------------------------------------------------------------
14. Grills v Branigin, 284 F Supp 176 (S.D. Ind. 1968), aff'd, 391 U.S. 
        364 (1969).
15. See Toombs v Fortson, 241 F Supp 65 (N.D. Ga. 1965), aff'd, 384 
        U.S. 210 (1966) (per curiam); Butterworth v Dempsey, 237 F Supp 
        302 (D. Conn. 1965).
16. Skolonick v Illinois State Electoral Board, 307 F Supp 698 (N.D. 
        Ill, 1969). See also Legislature v Reinecke. 99 Cal. Rptr. 481, 
        492 P.2d 385 (1972).
---------------------------------------------------------------------------

    On several occasions, state courts have ordered congressional 
districting plans into effect.(17)
---------------------------------------------------------------------------
17. See Legislature v Reinecke, 99 Cal. Rptr. 481, 492 P.2d 385 (1972); 
        People ex rel. Scott v Kerner, 33 Ill. 2d 460, 211 N.E.2d 736 
        (1965).

---------------------------------------------------------------------------

[[Page 859]]


