In a democratic form of government, districting and apportionment is essential to ensure equality of representation. Districting is the establishment of the precise geographical boundaries of each unit or constituency. It is the process of creating voting districts for the purpose of organizing elections. Apportionment is the process by which legislative seats are distributed among units entitled to representation. By apportionment, the number of representatives that a state, county, or other subdivision may send to a legislative body is determined. According to the U.S. Constitution, a census is conducted every ten years and on the basis of the census report, Congress apportions representatives according to population. Each state must have at least one representative.
In the U.S., the Constitution apportionment is made differently between the Senate and the House of Representatives. Each state is represented by two seats in the Senate. In the House of Representatives, seats are apportioned among the states based on the relative population of each state to the total population of the union.
In order to conduct elections to state legislature and congress, each state is divided into two territorial units:
- state legislative districts; and
- congressional districts.
State legislatures apportion a state into election districts for the election of representatives to Congress and state legislature. State election boards supervise election and administer election laws. However, the board is not vested with the power of reapportionment. Reapportionment is primarily the duty and responsibility of the state through its legislature or other body[i].
The state legislature’s power of apportionment is not an absolute one. The federal and state constitutions limit the power exercised by the state legislature[ii]. The federal constitution emphasizes that the apportionment must be based on the substantial equality of population. The Federal courts shall not interfere with the apportionment made by the state legislature until such apportionments contravene federal requirements. Usually, a state legislature can in its discretion, make apportionments when the legislature feels such apportionment is necessary. However, the federal constitution does not require reapportionment within a specific period. There is a prohibition against successive district changes in the same inter-census period[iii].
According to Article I, § 2, of the Constitution, apportionment among the states must be according to their respective numbers. After each decennial census, the method known as the method of equal proportions shall be used to determine the number of representatives to which each State is entitled. The number of representatives shall not exceed one for every 30,000 persons. Moreover, each state shall have at least one representative. Additionally, district boundaries shall not cross state lines[iv].
The US Constitution requires a decennial census for the purpose of assuring a fair distribution of seats in the US House of Representatives. “State’s apportionment plan for seats in both houses of a bicameral state legislature must allocate seats on a population basis so that the voting power of each voter is as equal as possible to that of any other voter”[v]. This is known as the one man one vote rule. All citizens, regardless of their state citizenship are entitled to equal legislative representation. Each legislative district should have, as closely as possible, the same number of voters. However, one person-one vote permits limited population variances. Variance is permitted for equal representation for equal numbers of people in the House of Representatives[vi]. However, the state must justify each no matter how small the variation is[vii].
The Federal Constitution requires that seats in the U S House of Representatives be apportioned among the several states according to their respective Numbers[viii]. The requirement is that representatives must be apportioned among the states according to their respective numbers[ix].
Moreover, the equal protection clause of the Fourteenth Amendment requires that state legislative districts must be of equal population. Then each person’s vote can be given equal weight in the election of representatives[x]. Although a person’s right to vote is secured by this rule, the effectiveness of a person’s vote is diminished or diluted when s/he resides in a district that is represented by a disproportionately low number of representatives per population in comparison to other districts.
Population variation is always ground for discrimination in apportionment. Among state legislative districts, a maximum population deviation of less than 10% is generally a minor deviation. Such a deviation does not require justification by the state. Deviation of less than 10% is not considered unconstitutional. When a deviation guarantees each county at least one legislator and apportioning the remainder of the legislators on a population basis, that deviation is justified. In such case:
- the policy must be consistently followed without any taint of arbitrariness or discrimination;
- there is no evidence of bias favoring political interest or geographic areas; and
- population equality is the sole criterion used in state legislative apportionment[xi].
The equal protection guarantee extends not only to congressional districting plans and state legislative districting but also to local government apportionment[xii].
A claim may arise on the ground of discrimination against minor political groups. In order to succeed, such a claim must be show that the legislative districts as drawn have violated the equal protection clause of the Fourteenth Amendment by diluting the votes of a minority group. The claimants must show that the apportionment plan is the result of intentional discrimination against an identifiable political group[xiii]. In order to show that a districting scheme has discriminatory results in violation of equal protection, minority voters need only establish that the use of such an electoral structure operates to minimize or cancel out their ability to elect their preferred candidate. The denial or abridgement of the right to vote on account of race or color is a prerequisite. However discriminatory intent need not be proved. The court must look to the totality of the circumstances to determine whether there is an impermissible vote dilution[xiv].
[i] Brooks v. Hobbie, 631 So. 2d 883 (Ala. 1993).
[ii] Chapman v. Meier, 420 U.S. 1 (U.S. 1975).
[iii] Legislature v. Deukmejian, 34 Cal. 3d 658, 671 (Cal. 1983).
[iv] Dep’t of Commerce v. Mont., 503 U.S. 442, 447-448 (U.S. 1992).
[v] Reynolds v. Sims, 377 U.S. 533 (U.S. 1964).
[vi] Wesberry v. Sanders, supra [376 U.S.], at 18 [84 S. Ct. at 535].
[vii] Flanagan v. Gillmor, 561 F. Supp. 36, 47 (S.D. Ohio 1982)
[viii] U.S. Const., Art. I § 2 cl. 3.
[ix] 2 USCS § 2a.
[x] Connor v. Finch, 431 U.S. 407 (U.S. 1977).
[xi] Reynolds v. Sims, 377 U.S. 533 (U.S. 1964).
[xii] Avery v. Midland County, 390 U.S. 474 (U.S. 1968).
[xiii] Duckworth v. State Admin. Bd. of Election Laws, 332 F.3d 769 (4th Cir. Md. 2003).
[xiv] Gomez v. Watsonville, 863 F.2d 1407 (9th Cir. Cal. 1988).