The Supremes v. Malaportionment
There was once a third way to gerrymander
Gerrymandering is back in the headlines. The Supreme Court’s ruling in Louisiana v Callais made it easier for state legislatures to dilute the power of black voters and harder for victims to prove racial discrimination. Several states are already working to pass new maps that will flip U.S. House districts from blue to red, since black Americans tend to vote Democrat. With legislative reform blocked, the Democrats can only limp back to the Supremes and ask them to rule in their favor. The media is eating it up. Some people in DSA support it. But the whole thing is a bipartisan race to the bottom and only proves the need for a democratic constitution based on a unicameral legislature, universal and equal suffrage, and proportional representation.
Silent Gerrymandering
In most states, both the state legislative districts and the congressional districts are gerrymandered. Whichever party controls the legislature can “crack” and “pack” its opponents. Cracking involves spreading the opposition thinly across many different districts so that the 51-percent threshold is difficult to meet. Packing is the opposite: the opposition is concentrated into a few districts so that votes are essentially wasted. This is the type of gerrymandering we’ve grown accustomed to over the past decade-plus.
Along with cracking and packing, Democrats and Republicans used to deploy a third tactic: conveniently failing to redraw their districts. This “silent gerrymandering” tactic was made possible by the authority granted to states in the Constitution and long-standing judicial deference. Oregon, for example, did not redraw its state legislative map between 1907 and 1957. Maps in Alabama and Tennessee were drawn in 1901, but did not change until the first year of John F. Kennedy’s administration. After the 1940 census, only 18 of 48 states redrew their state districts.
Comical levels of inequality ensued. A town in Vermont with 38 residents had the same legislative power as the state capital, Burlington, with a population of 33,000. Senate districts in Georgia ranged from 13,000 to 560,000 people. In California, the six million residents of Los Angeles County elected the same number of state senators—one—as three other counties with a combined 14,000 residents. By the early 1960s, there were 15 states in which the Senate majority represented less than 30 percent of the population. America was full of rotten boroughs.
These disparities had real consequences. When the Virginia legislature voted in 1956 to close public schools rather than integrate, the twenty-one state senators who voted in favor of the action represented fewer Virginians than did the seventeen senators who opposed it. Residents of urban Birmingham paid 25 percent of the state’s gasoline tax but received only 1.5 percent of state expenditures on roads. In the late 1940s, California’s Proposition 13 attempted to increase equality across legislative districts. At stake was the ability of urban voters—many of them organized into unions and other civil rights groups—to pass laws increasing workers’ compensation, providing disability insurance, and ensuring public ownership of water and power utilities. Most working-class Californians wanted equal rights in order to push their progressive agenda forward. Meanwhile, their corporate opponents wanted to deny equal suffrage and thereby frustrate everything workers were struggling to win. State senators from rural districts were considered easier to buy off. Proposals for equal districts were denounced as socialist and a way for urban bosses and unions to impose themselves on rural life. The same dynamic played out in countless other states. Proposition 13 was ultimately defeated by a well-financed and cutting-edge business campaign.
Both parties benefited from state-level malapportionment and the denial of equal representation. In the South, the Democratic Party appreciated the overrepresentation of rural white voters, which was strengthened by the widespread disenfranchisement of black voters under Jim Crow. In the North, Republicans benefited because the rapidly growing urban districts—filled with New Deal Democrats—were underrepresented.
Silent gerrymandering was most effective at rigging state-level legislative districts. U.S. House maps, meanwhile, were consistently redrawn after each census (1920 was a notable exception). Even so, these maps left much to be desired. In 1960, some 35 percent of U.S. House maps were malapportioned. The largest House district in Texas contained more than four times the number of residents as the smallest. Michigan was the worst offender, as its House districts ranged from some 100,000 to 800,000 residents.
The consequences of malapportionment at the state and federal legislative levels were the same. Urban voters, including a large number of working-class people and people of color, were underrepresented compared to their rural counterparts. Laws supported by these urban groups—including labor regulations, minimum wage increases, and robust civil rights protection—were defeated by minorities at the national level.
The story of what happened next is detailed in J. Douglas Smith in On Democracy’s Doorstep. For generations, proponents of equal representation were unable to force their state legislatures to redraw districts and make them equal in size. But all of that changed in the 1960s thanks to successive Supreme Court rulings.
Baker v. Carr (1962) determined that federal courts can hear reapportionment disputes under the 14th Amendment’s Equal Protection Clause. The Washington Post said the ruling was equivalent to performing open-heart surgery on the country’s political system. Gray v. Sanders (1963) established the principle of voter equality. Reynolds v. Sims (1964) said that both houses of state legislatures must be apportioned by population—something that apparently no one, including supporters of reapportionment, had considered before 1962. Asked to explain the decision in layman’s terms, the Court explained that “legislators represent people, not trees or acres.” Wesberry v. Sanders (1964) extended the equality principle to U.S. House districts. Finally, Lucas v. Forty-Fourth General Assembly of Colorado (1964) struck down a voter-approved malapportioned state senate system. Even the voters of each state can’t mandate unequal representation.
Reapportionment became a public conversation, even garnering a one-hour CBS News special. The Justice Department called malapportionment a “cancer,” and urban residents of Mississippi called it a “moral and political malignancy.” Years later, a local paper in Kansas would win a Pulitzer for its coverage of the effects of malapportionment, including one-party domination and the unfair distribution of state revenues.
The period was full of allusions to equal suffrage, or “one person, one vote.” Representing the majority opinion in Gray v. Sanders, Justice William Douglas wrote that “the conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can only mean one thing—one person, one vote.”
The civil rights movement used the same phrase. “‘One man, one vote’ is the African cry,” declared Student Nonviolent Coordinating Committee (SNCC) president John Lewis during his speech at the March on Washington in 1963. “It is ours too. It must be ours.” The phrase was used in SNCC propaganda, including posters and magazines. Martin Luther King alluded to the apportionment rulings in his 1965 New York Times article, “Civil Right No. 1: The Right to Vote,” writing that “when the Supreme Court has said that the law of the land demands ‘one man, one vote,’ so that all state legislatures may be democratically structured, it would be a mockery indeed if this were not followed without delay by the insistence upon ‘one vote for every man.’”
When the dust had finally settled on the Supreme Court’s rulings, corporations like General Electric, Procter and Gamble, U.S Steel, and Du Pont chipped in hundreds of thousands of dollars to support a constitutional amendment allowing voters to decide the apportionment standards in at least one state house. Equal suffrage scared big money. The reaction lasted until the end of the 60s, but was unsuccessful.
Gallup polls showed broad public support for the Court’s reapportionment decisions. The origins of the first case, Baker v. Carr, can be traced back to the Tennessee League of Women Voters (LWV), whose mostly middle-class urban members decided in 1959 to make reapportionment one of its top priorities. But for the most part, the reapportionment affair was directed by state and federal officials and took place in secret chambers and closed offices in Washington. Many of the central characters were dressed in suits and attended the country’s best colleges.
What about the Senate?
The dust jacket of On Democracy’s Doorstep says that the Supreme Court’s 1960s cases established the principle of one person, one vote across the country. This is true in one sense, as thanks to the rulings, all states must now elect their state representatives and U.S. House representatives from equally-sized districts. But it’s not true in any other sense. Opponents of the reapportionment rulings warned that the same logic would lead to a reformed Senate, even going so far as to produce a map showing how each state would be represented if equal suffrage were mandatory (per the 1960 census, Texas would have six senators, California and Nevada would get nine combined, and Utah, Arizona, Colorado, and New Mexico would share three). But according to Douglas, the possibility was “never remotely considered” by anyone involved.
Chief Justice Earl Warren broached the issue in the majority opinion in Reynolds v. Sims, writing that “the system of representation in the two Houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land… It is one conceived out of compromise and concession indispensable to the establishment of our federal republic.” In other words, the U.S. Senate is exceptional and irrelevant to debates over how states should organize their legislative systems.
The Cold War was a particularly inauspicious time to question the wisdom of the Founding Fathers and the integrity of the Constitution. Thomas Geoghegan and Daniel Lazare broke the silence in the 1990s. Today, the Senate’s egregious malapportionment is relatively well-known across the political spectrum. It’s not exactly a secret that Wyoming has about 70 times the representative power as California, and that in fifteen years, some 70 percent of the country will be represented by 30 senators. Senate apportionment also paints the problem of Article V in particularly stark colors. It’s difficult enough jumping through the supermajorities required to pass an amendment or call a convention. But changing the Senate’s apportionment scheme requires approval from every single state, including all of those that would stand to lose.
Of course, it’s not just the Senate. The entire Constitution—from the Electoral College to the Supreme Court—is built on the denial of equal suffrage. Smith’s claim that the decisions transformed the “basic meaning” of the Framers’ creation makes for a catchy headline, but nothing more.
A Progressive Court?
On Democracy’s Doorstep was published in 2014, some four years after the Court’s decision in Citizens United v. FEC and one year after Shelby County v. Holder, which struck down the Voting Rights Act’s coverage formula. Warren was apparently very proud of the Court’s work, ranking the “one person, one vote” decisions above other notable (and better remembered) cases like Brown v. Board (1954), Gideon v. Wainwright (1963), and Miranda v. Arizona (1965). His Supreme Court is often held up as proof that SCOTUS can be something besides a drain on society.
Readers can choose their own way of responding to that argument. The ship has sailed very far since 2014, and SCOTUS will likely remain in the hands of the far-right for the next several decades. We need a judicial system that is accountable to the working-class majority, not to the executive branch’s agenda or to its own prerogatives, regardless of what those prerogatives might happen to be at any given point in time. The Supreme Court and the entire federal judiciary are noxious not only because they are controlled by the far-right, but because their very existence violates the principle of one person, one equal vote. The Court needs to be changed, and there’s no imaginable constitutional way that can be done. That’s why we need a constituent assembly that will rewrite the rules. The history of past upheavals—including the French Revolution and the U.S. Civil War and Reconstruction—is helpful in that regard.
Opposition
I return to this point: The Supreme Court and federal judiciary are noxious not only because they are controlled by the far-right, but because their very existence violates the principle of one person, one equal vote.
It’s tempting to frame historical events as either helping or hindering our goal of a better future. Depending on the context, that type of thinking may or may not be helpful. Straightforward conclusions can also be drawn. The legal system recognized the principle of one person, one vote as fundamental to democracy. It granted democracy at the state level, but denied it at the federal level. And that was sixty-plus years ago. Today, other forms of gerrymandering have distorted state and federal legislative maps beyond anything that could be called representative, and a new set of justices is helping it happen.
Decades ago, the demand for equal suffrage seized the country. That will have to happen again—and at a far greater level of intensity—if we are going to win a democratic constitution.