America's Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar Read Free Book Online Page B

standards. Today, applying this alternative would collapse into Reynolds , since all states now meet the one-person-one-vote standard. Even if states were now told that they are henceforth free to reject Reynolds , most would probably decline to doso, because the voters themselves in most jurisdictions—along with leading politicians and opinion leaders—have come to embrace the idea of equally populous districts as a basic feature of political fairness.
    Another imaginable alternative in 1964 would have been to allow voters in any given state, by a statewide initiative or referendum that itself would treat all voters equally, to authorize district maps that deviated from one-person, one-vote. If, at least once every census cycle, a state’s electorate had to bless any deviation from districting equality, there would likely be no systematic frustration of majority rule violative of the deep principle underlying the republican-government clause.
    But what about minority rights? Suppose a 55 percent statewide majority of whites approved a malapportioned statewide map giving whites majorities in 90 percent of the unevenly sized districts. Such maps might violate the spirit of the Fifteenth Amendment, but prior to Reynolds that amendment had proved hard for judges to enforce on their own when confronting massive state disobedience. Also, unless the Court in 1964 had decreed that every district map had to be blessed by a statewide popular vote—an approach that would have obliged every state to institute a referendum or initiative process—there needed to be a doctrinal sub-rule specifying when such a popular vote would be required. Presumably the answer to this question would have been that a statewide popular vote would be needed only when a state was malapportioned. But when was that? When it departed from one-person, one-vote, of course! Our envisioned referendum rule was thus not a sharply distinct alternative to one-person, one-vote, but merely a softer variant that would have treated violations of one-person, one-vote as presumptively unconstitutional rather than unconstitutional per se.
    If some sub-rules about the permissible size of voting districts were necessary in order to safeguard the basic right to vote, why weren’t sub-rules about the permissible shape of voting districts also necessary? In other words, once the justices decided to protect the basic right to vote in cases such as Harper v. Virginia and Kramer v. Union Free School District , and to buttress those right-to-vote rulings in the antimalapportionment cases of Baker v. Carr and Reynolds v. Sims , why did the Court stop there? Why didn’t the justices take the additional step of regulating political“gerrymandering”—that is, the art of drawing district lines so as to favor the political group drawing the lines?
    In Reynolds , Chief Justice Warren declared that “in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State’s legislators.…Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will.” Alas, Reynolds’s simple requirement that districts be of equal size fell short of guaranteeing that a majority of statewide voters would in fact control a majority within the legislature itself. Theoretically, a statewide minority faction supported by less than 26 percent of the voters could control the state legislature by winning a bare majority of ingeniously drawn districts and winning each district by a bare majority.
    If Reynolds alone did not guarantee republican-government-style majority rule, neither did it ensure minority rights. Even in a state that was Reynolds-compliant , a minority group comprising 45 percent of the statewide vote could lose every single district, 55 percent to 45 percent, if each district were