A major innovation in constitutional law in recent years has been the development of a requirement that election districts in each State be so structured that each elected representative should represent substantially equal populations. 251 While this requirement has generally been gleaned from the equal protection clause of the Fourteenth Amendment, 252 in Wesberry v. Sanders, 253 the Court held that ''construed in its historical context, the command of Art. 1, Sec. 2, that Representatives be chosen 'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.'' 254
Court involvement in this issue developed slowly. In our early history, state congressional delegations were generally elected at-large instead of by districts and even when Congress required single-member districting 255 and later added a provision for equally populated districts 256 the relief sought by voters was action by the House refusing to seat Members-elect selected under systems not in compliance with the federal laws. 257 The first series of cases did not reach the Supreme Court, in fact, until the States began redistricting through the 1930 Census, and these were resolved without reaching constitutional issues and indeed without resolving the issue whether such voter complaints were justiciable at all. 258 In the late 1940s and the early 1950s, the Court utilized the ''political question'' doctrine to decline to adjudicate districting and apportionment suits, a position changed in Baker v. Carr. 259
For the Court in Wesberry, 260 Justice Black argued that a reading of the debates of the Constitutional Convention conclusively demonstrated that the Framers had meant, in using the phrase ''by the People,'' to guarantee equality of representation in the election of Members of the House of Representatives. 261 Justice Harlan in dissent argued contrarily that the statements relied on by the majority had uniformly been in the context of the Great Compromise--Senate representation of the States with Members elected by the state legislatures, House representation according to the population of the States, qualified by the guarantee of at least one Member per State and the counting of slaves as three-fifths of persons--and not at all in the context of intrastate districting. Further, he thought the Convention debates clear to the effect that Article I, Sec. 4, had vested exclusive control over state districting practices in Congress and that the Court action overrode a congressional decision not to require equally- populated districts. 262
The most important issue, of course, was how strict a standard of equality the Court would adhere to. At first, the Justices seemed inclined to some form of de minimis rule with a requirement that the State present a principled justification for the deviations from equality which any districting plan presented. 263 But in Kirkpatrick v. Preisler, 264 a sharply divided Court announced the rule that a State must make a ''good-faith effort to achieve precise mathematical equality.'' 265 Therefore, ''[u]nless population variances among congressional districts are shown to have resulted despite such [good- faith] effort [to achieve precise mathematical equality], the State must justify each variance, no matter how small.'' 266 The strictness of the test was revealed not only by the phrasing of the test but by the fact that the majority rejected every proffer of a justification which the State had made and which could likely be made. Thus, it was not an adequate justification that deviations resulted from (1) an effort to draw districts to maintain in tact areas with distinct economic and social interests, 267 (2) the requirements of legislative compromise, 268 (3) a desire to maintain the integrity of political subdivision lines, 269 (4) the exclusion from total population figures of certain military personnel and students not residents of the areas in which they were found, 270 (5) an attempt to compensate for population shifts since the last census, 271 or (6) an effort to achieve geographical compactness. 272
Illustrating the strictness of the standard, the Court upheld a lower court voiding of a Texas congressional districting plan in which the population difference between the most and least populous districts was 19,275 persons and the average deviation from the ideally populated district was 3,421 persons. 273 Adhering to the principle of strict population equality in a subsequent case, the Court refused to find valid a plan simply because the variations were smaller than the estimated census undercount. Rejecting the plan, the difference in population between the most and least populous districts being 3,674 people, in a State in which the average district population was 526,059 people, the Court opined that, given rapid advances in computer technology, it is now ''relatively simple to draw contiguous districts of equal population and at the same time . . . further whatever secondary goals the State has.'' 274
Attacks on partisan gerrymandering have proceeded under equal- protection analysis, and, while the Court has held justiciable claims based on claims of denial of effective representation, the standards are so high neither voters nor minority parties have yet benefitted from the development. 275
It was the original constitutional scheme to vest the determination of qualifications for electors in congressional elections 276 solely in the discretion of the States, save only for the express requirement that the States could prescribe no qualifications other than those provided for voters for the more numerous branch of the legislature. 277 This language has never been expressly changed, but the discretion of the States, and not only with regard to the qualifications of congressional electors, has long been circumscribed by express constitutional limitations 278 and by judicial decisions. 279 Further, beyond the limitation of discretion on the part of the States, Congress has assumed the power, with judicial acquiescence, to legislate itself to provide qualifications at least with regard to some elections. 280 Thus, in the Voting Rights Act of 1965, 281 Congress legislated changes of a limited nature in the literacy laws of some of the States, 282 and in the Voting Rights Act Amendments of 1970, 283 Congress successfully lowered the minimum voting age in federal elections 284 and prescribed residency qualifications for presidential elections, 285 the Court striking down an attempt to lower the minimum voting age for all elections. 286 These developments greatly limited the discretion granted in Arti cle I, Sec. 2, cl. 1, and are more fully dealt with subsequently in the treatment of Sec. 5 of the Fourteenth Amendment.
Notwithstanding the vesting of discretion to prescribe voting qualifications in the States, conceptually the right to vote for United States Representatives is derived from the Federal Constitution, 287 and Congress has had the power under Article I, Sec. 4, to legislate to protect that right against both official 288 and private denial. 289
[Footnote 251] The phrase ''one person, one vote'' which came out of this litigation might well seem to refer to election districts drawn to contain equal numbers of voters rather than equal numbers of persons. But it seems clear from a consideration of all the Court's opinions and the results of its rulings that the statement in the text accurately reflects the constitutional requirement. The case expressly holding that total population, or the exclusion only of transients, is the standard is Burns v. Richardson, 384 U.S. 73 (1966), a legislative apportionment case. Notice that considerable population disparities exist from State to State, as a result of the requirement that each State receive at least one Member and the fact that state lines cannot be crossed in districting. At least under present circumstances, these disparities do not violate the Constitution. U.S. Department of Commerce v. Montana, 112 S.Ct. 1415 (1992).
[Footnote 254] 376 U.S., 7.
[Footnote 255] Act of June 25, 1842, 5 Stat. 491.
[Footnote 256] Act of February 2, 1872, 17 Stat. 28.
[Footnote 257] The House uniformly refused to grant any such relief. 1 A. Hinds' Precedents of the House of Representatives (Washington: 1907), 310. See L. Schmeckebier, Congressional Apportionment (Washington: 1941), 135-138.
[Footnote 261] Id., 7-18.
[Footnote 262] Id., 20-49.
[Footnote 263] Kirkpatrick v. Preisler, 385 U.S. 450 (1967), and Duddleston v. Grills, 385 U.S. 455 (1967), relying on the rule set out in Swann v. Adams, 385 U.S. 440 (1967), a state legislative case.
[Footnote 266] Id., 531.
[Footnote 267] Id., 533. People vote as individuals, Justice Brennan said for the Court, and it is the equality of individual voters that is protected.
[Footnote 268] Ibid. Political ''practicality'' may not interfere with a rule of ''practicable'' equality.
[Footnote 269] Id., 533-534. The argument is not ''legally acceptable.''
[Footnote 270] Id., 534-535. Justice Brennan questioned whether anything less than a total population basis was permissible but noted that the legislature in any event had made no consistent application of the rationale.
[Footnote 271] Id., 535. This justification would be acceptable if an attempt to establish shifts with reasonable accuracy had been made.
[Footnote 272] Id., 536. Justifications based upon ''the unaesthetic appearance'' of the map will not be accepted.
[Footnote 273] White v. Weiser, 412 U.S. 783 (1973). The Court did set aside the district court's own plan for districting, instructing that court to adhere more closely to the legislature's own plan insofar as it reflected permissible goals of the legislators, reflecting an ongoing deference in legislatures in this area to the extent possible.
[Footnote 274] Karcher v. Daggett, 462 U.S. 725 (1983). Illustrating the point about computer-generated plans containing absolute population equality is Hastert v. State Board of Elections, 777 F.Supp. 634 (N.D.Ill. 1991) (three-judge court), in which the court adopted a congressional-districting plan in which 18 of the 20 districts had 571,530 people each and each of the other two had 571,531 people.
[Footnote 275] The principal case was Davis v. Bandemer, 478 U.S. 109 (1986), a legislative apportionment case, but no doubt should exist that congressional districting is covered. See Badham v. Eu, 694 F.Supp. 664 (N.D.Calif.) (three-judge court) (adjudicating partisan gerrymandering claim as to congressional districts but deciding against plaintiffs on merits), affd., 488 U.S. 1024 (1988); Pope v. Blue, 809 F.Supp. 392 (W.D.N.C.) (three-judge court) (same), affd, 113 S.Ct. 650 (1992).
[Footnote 276] The clause refers only to elections to the House of Representatives, of course, and, inasmuch as Senators were originally chosen by state legislatures and presidential electors as the States would provide, it was only with the qualifications for these voters with which the Constitution was originally concerned.
[Footnote 277] Minor v. Happersett, 88 U.S. (21 Wall.) 162, 171 (1875); Breedlove v. Suttles, 302 U.S. 277, 283 (1937). See 2 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 576-585.
[Footnote 278] The Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments limited the States in the setting of qualifications in terms of race, sex, payment of poll taxes, and age.
[Footnote 279] The Supreme Court's interpretation of the equal protection clause has excluded certain qualifications. E.g., Carrington v. Rash, 380 U.S. 89 (1965); Kramer v. Union Free School District, 395 U.S. 621 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). The excluded qualifications were in regard to all elections.
[Footnote 280] The power has been held to exist under Sec. 5 of the Fourteenth Amendment. Katzenbach v. Morgan, 384 U.S. 641 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970); City of Rome v. United States, 446 U.S. 156 (1980).
[Footnote 281] Sec. 4(e), 79 Stat. 437, 439, 42 U.S.C. Sec. 1973b(e), as amended.
[Footnote 283] Titles 2 and 3, 84 Stat. 314, 42 U.S.C. Sec. 1973bb.
[Footnote 287] ''The right to vote for members of the Congress of the United States is not derived merely from the constitution and laws of the state in which they are chosen, but has its foundation in the Constitution of the United States.'' Ex parte Yarbrough, 110 U.S. 651, 663 (1884). See also Wiley v. Sinkler, 179 U.S. 58, 62 (1900); Swafford v. Templeton, 185 U.S. 487, 492 (1902); United States v. Classic, 313 U.S. 299, 315 , 321 (1941).