Gerrymandering

“ The majority today shows greater concern about redistricting practices than about the meaning of the Constitution. I recognize the difficulties that arise from trying to fashion judicial relief for partisan gerrymandering. ”

“ I would, however, adopt a broader standard that would require preclearance in this case as well. The proper test, I believe, is suggested by the examples of resistance to the increase in black registration that were noted in our opinion in Perkins v. Matthews, supra. [26]
Changes from district voting to at-large voting, the gerrymandering of district boundary lines, and the replacement of an elected official with an appointed official, all share the characteristic of enhancing the power of the majority over a segment of the political community that might otherwise be adequately represented. ”

“ It will be seen that once the rule of alternating office by mutual arrangement be broken, the end of the whole system of gerrymandering the elections would be brought within sight, for any Government which enjoyed the confidence of the nation would remain in office year after year, once the people were permitted to make their voice heard in the elections. ”

“ For a law passed under the Empire in 1852, and undisturbed for obvious reasons by the Third Republic, allows the prefect of a department to determine into what sections he will divide a large commune for the purpose, according to the law, of 'bringing the electors nearer to the electoral urn.' This opens the way, of course, to a good deal of what in America would be known as official 'gerrymandering.' The thing may be of any country. ”

“ In terms of effective representation for all voters there are only minuscule differences between the two standards. But neither rule can alone prevent de iberate partisan gerrymandering if that is considered an evil which the Fourteenth Amendment should attempt to proscribe. ”

“ The 1970 plan insured that no incumbent would be running against another incumbent, as often may happen under a reapportionment plan. Thus the opportunity for preserving the status quo was assisted.
An effort to make each district politically homogeneous compounded this problem. The record provides a new definition of gerrymandering. A gerrymandered district in Arizona is not one where a 'natural' majority finds its power erased by either moving lines to increase the numbers of the opposition in the district or by moving the lines so that a majority is dispersed. ”

“ The state Constitution also provides that, after each Federal census, 'the legislature shall have the power to prescribe the bounds of congressional * * * districts.' Id. art. 4, § 23. We do not understand that the Supreme Court of the state has held that, under these provisions, a measure redistricting the state for congressional elections could be put in force by the Legislature without participation by the Governor, as required in the case of legislative bills, if such action were regarded as a performance of the function of the Legislature as a lawmaking body. ”

“ There are city elections, county elections, and district or borough elections, and those city and county and district elections are held under some law of the State in which the city or county or district or borough may be, and in those elections, according to the laws of the States, certain qualifications are prescribed, residence within the limits of the locality and a property qualification in some. Now, is it proposed to say that, if every man in a State is not at liberty to vote at a city or a country or a borough election that is to affect the basis of representation? ”

“ I have recently been advised that in one county of a certain State three districts for the election of members of the Legislature are constituted as follows: One has 65,000 population, one 15,000, and one 10,000; while in another county, detached, non-contiguous sections have been united to make a legislative district. These methods have already found effective application to the choice of Senators and Representatives in Congress, and now an evil start has been made in the direction of applying them to the choice by the States of electors of President and Vice-President. ”

“ This legislation was, of course, accompanied by a new Congressional apportionment, and the two statutes bring the electoral vote of the State under the influence of the "gerrymander."
These gerrymanders for Congressional purposes are in most cases buttressed by a gerrymander of the legislative districts, thus making it impossible for a majority of the legal voters of the State to correct the apportionment and equalize the Congressional districts. A minority rule is established that only a political convulsion can overthrow. ”

“ Specific provision for county representation in at least one house of the state legislature has been increasingly adopted since the end of the 19th century. [130] More than twenty States now guarantee each county at least one seat in one of their houses regardless of population, and in nine others county or town units are given equal representation in one legislative branch, whatever the number of each unit's inhabitants. Of course, numerically considered, "These provisions invariably result in over-representation of the least populated areas." ”

“ The legislature shall provide for the future elections of senators, for which purpose the states, respectively, which have more than one senator, shall be divided into convenient districts, to which the senators shall be apportioned. A state having but one senator, shall be itself a district. On the death, resignation, or removal from office of a senator, his place shall be supplied by a new election in the district from which he came. Upon each election there shall be not less than six, nor more than twelve, electors chosen in a district. ”

“ Despite the absence of any specific provisions in the State Constitution, population has generally been traditionally regarded as the most important factor for legislative consideration in reapportioning and redistricting. Because cities and counties have consistently not been split or divided for purposes of legislative representation, multimember districts have been utilized for cities and counties whose populations entitle them to more than a single representative, resulting in there always being less than 100 delegate districts and less than 40 senatorial districts. ”

“ From the number of electors who have a right to vote for a member of the House of Representatives, little danger can be apprehended of corruption or undue influence, If a small district sent a member, there would be frequent opportunities for cabal and intrigue; but if the sphere of election is enlarged, then opportunities must necessarily diminish. The little demagogue of a petty parish or county will find his importance annihilated, and his intrigues useless, when several counties join in an election ”

“ And that nothing in this Constitution shall be construed to prevent the legislature of any state to pass laws, from time to time, to divide such state into as many convenient districts as the state shall be entitled to elect representatives for Congress, nor to prevent such legislature from making provision, that the electors in each district shall choose a citizen of the United States, who shall have been an inhabitant of the district, for the term of one year immediately preceding the time of his election, for one of the representatives of such state. ”

“ Composition and Organization.—The National Council is composed of deputies chosen at a general election, for a term of three years, by direct manhood suffrage. The constitution stipulates that there shall be one representative for every 20,000 inhabitants, or major fraction thereof, and a reapportionment is made consequent upon each decennial census. The electoral districts are so laid out that no one comprises portions of different cantons; but they are of varying sizes and are entitled to unequal numbers of representatives, according to their population. ”

“ Art. 3395. [3238] The failure to carry prohibition in a county shall not prevent an election for the same being immediately thereafter held in a justice's precinct or subdivision of such county as designated by the commissioners' court, or of any town or city in such county; nor shall the failure to carry prohibition in a town or city prevent an election from being immediately thereafter held for the entire justice's precinct or county in which said town or city is situated ”

“ To secure this result, each state is divided into election districts presumably of as nearly equal population as possible, the senatorial districts being the larger. In practice, however, these districts do not always have representation proportional to their population. The county is often the unit of representation, or in New England the town, and these districts vary greatly in population. An attempt is made to equalize the difference by providing that no district shall have less than one representative, and often that none shall have more than a certain number. ”

“ In each city incorporated after its adoption, the Constitution requires the election in each of a mayor, a treasurer and a sergeant, each for a term of four years, and the election or appointment of a commissioner of the revenue for an equal term; that in cities having a population of 10,000 or more the council shall be composed of two branches; that the mayor shall have a veto on all acts of the council and on items of appropriation, ordinances or resolutions, which can be overridden only by an affirmative vote of two-thirds of the members elected to each branch ”

“ An election was held on the 16th of April, 1863, and if the act mentioned had not then become a law, it is evident that no such vote has been given in favor of the removal of the county site as the Constitution provides. Sec. 3, Art. 3, declares that no public act of the General Assembly shall take effect, or be in force, until the expiration of sixty days from the end of the session at which the same is passed, unless so expressly declared by the legislature. ”

“ But grant, for a moment, that this minute and local knowledge the gentlemen contend for is necessary; let us see if, under the new Constitution, it will not probably be found in the representation. The natural and proper mode of holding elections will be, to divide the state into districts, in proportion to the number to be elected. This state will consequently be divided, at first, into six. One man from each district will probably possess all the knowledge gentlemen can desire. Are the senators of this state more ignorant of the interests of the people than the Assembly? ”

“ Nor does it present the question, inherent in the bicameral form of our Federal Government, whether a State may have one house chosen without regard to population. The District Court, however, analogized Georgia's use of the county unit system in determining the results of a statewide election to phases of our federal system. It pointed out that under the electoral college, [8] required by Art. II, § 1, of the Constitution and the Twelfth Amendment in the election of the President, voting strength 'is not in exact proportion to population * * *. ”

“ Suppose, however, that the municipality be large enough to be readily divided into as many wieldy districts as there are commissioners to the number of from five to nine. For instance, let us assume a city of to exceed 25,000 male voters and a population exceeding 150,000. Here the district is too unwieldy for the election at large of those candidates receiving the highest votes at a single election. It may be doubted whether the double election will produce satisfactory results in the way of securing a really intelligent vote. ”

“ The typical restrictions are those like New York's affording minimal representation to certain political subdivisions, or prohibiting districts composed of parts of two or more counties, or requiring districts to be composed of contiguous and compact territory, or fixing the membership of the legislative body. All of these factors tend to place practical limitations on apportionment according to population, even if the basic underlying system is one of equal population districts for representation in one or both houses of the legislature. ”

“ Representation by districts, being the only social mode of ascertaining the will of the majority, and each district exclusively possessing the means of infusing its will into its own representative; an end which our policy every where labours to attain; the will of a majority can never be constitutionally ascertained, except through the regular organized channel for that very purpose; for if instruction by districts, is not a pure indication of the publick will, neither can election by districts be so; and no genuine mode of ascertaining it exists. ”

“ We are told that the representatives will not be known to the people, nor the people to the representatives, because they will be taken from large districts, where they cannot be particularly acquainted. There has been some experience, in several of the states* upon this subject; and I believe the experience of all who had experience, demonstrates that the larger the district of election, the better the representation. It is only in remote corners of a government that little demagogues arise. ”

“ The people grew in numbers, their interests increased in complexity and county affairs [Pg 44] sank into comparative insignificance. In their theory of pure democracy via the ballot, they spread out their interest in county officers so thin that no single officer got sufficient attention to make him realize their influence. County candidates were mixed up on the ballot with a multitude of others, state, national and municipal, so that it was practically certain that not only unknown but often undesirable citizens would step into power with the “people’s” stamp of approval. ”