Indiana Law Review Democracy and Distemper: An Examination of the Sources of Judicial Distress in State Legislative Apportionment Cases Daniel Dovenbarger* I. Introduction A. Troublesome Thickets — Old or New? When the United States Supreme Court in Baker v. Carr^ led the courts of America down the path permitting judicial review of appor- tionment legislation, there were repeated warnings that the Court would ensnare itself in a * 'political thicket."^ When the Court later decided Wesberry v. Sanders^ and Reynolds v. Sims,'^ however, it encountered no thicket blocking progress toward its commitment to equality of voting powers. Even now it is not at all clear what of this feared ''thicket*' was supposed to be.^ In part. Justice Harlan's criticism of the Court's decision in Baker Attorney, UAW Legal Services, Indianapolis; B.A., Wabash College, 1979; M.A., Vanderbilt University, 1981; J.D., Indiana University School of Law—Indianapolis, 1983. '369 U.S. 186 (1962). The Court in Baker reversed a lower court dismissal of a suit challenging Tennessee's state legislative apportionment as violating the equal protection clause. The Court held that federal courts had jurisdiction over the question, that the controversy was justiciable, and that federal courts possessed equitable powers sufficient to award relief. The imagery of a "political thicket" first appeared in Justice Frankfurter's opinion for the Court in Colegrove v. Green, 328 U.S. 549, 556 (1946), where the court held there was insufficient equitable power to make justiciable the claim that Illinois' congres- sional districts violated the equal protection clause. The imagery reappeared in Justice Harlan's dissent in Baker v. Carr, 369 U.S. at 330. In Reynolds itself, the opinion of Chief Justice Warren cautioned against "the dangers of entering into political thickets and mathematical quagmires." Reynolds v. Sims, 377 U.S. 533, 566 (1964). ^376 U.S. 1 (1964). "377 U.S. 533 (1964). In addition to Reynolds, the court released five other state legislative apportionment cases on the same day: Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1%4); Roman v. Sincock, 377 U.S. 695 (1964); Davis v. Mann, 377 U.S. 678 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964). Within two weeks the court had invalidated eight other state legislative apportionment plans. See Hill v. Davis, 378 U.S. 565 (1964); Pinney v. Butterworth, 378 U.S. 564 (1964); Hearne v. Smylie, 378 U.S. 563 (1964); Marshall v. Hare, 378 U.S. 561 (1964); Germano v. Kemer, 378 U.S. 560 (1964); Williams v. Moss, 378 U.S. 558 (1964); Nolan v. Rhodes, 378 U.S. 556 (1964)(per curiam); Meyers v. Thigpen, 378 U.S. 544 (1964)(per curiam); Swann v. Adams, 378 U.S. 533 (1964). 'J. Ely, Democracy and Distrust: A Theory of Judicial Review 120 (1980). 885 886 INDIANA LAW REVIEW [Vol. 18:885 to permit review of apportionment stemmed from institutional concerns.^ He worried about the public perception of the Court's involvement in the apportionment process.^ The benefit of hindsight, however, makes his worries seem somewhat trivial^ because the Court's conmiitment to equality probably enhanced its standing in the eyes of the public.^ Either the keen edge of the slogan "one person, one vote"'^ had cleared the thicket feared by the dissenters in Baker or the thicket had never really existed. Twenty years after the Court decided Reynolds, an examination of state legislative apportionment cases and literature uncovers a confusing array of rules and obligations that have been imposed upon apportioning bodies.'' The growth of tests and rules governing apportionment belies the simplicity and elegance of the original Reynolds formulation of "one person, one vote." The journey from simplicity to complexity has created confusion which distresses legislatures, courts, and observers.'^ In short, the Court may have gradually created its own "thicket" in state legislative apportionment cases. For those committed to equality, this newly visible "thicket" presents an obstacle to the goal of equal voting power announced in Reynolds. ^^ Close examination of this emerging thicket indicates that it is neither ancient nor political. Instead, it is of the Court's own making. Fur- thermore, while the thicket may have sprung from seeds originally sown in Reynolds, it is more certainly the cultivated product of the intellectual and ideological eclecticism of the Burger Court. "* Harmless dicta of the <*Baker v. Carr, 369 U.S. at 340 (Harlan, J., dissenting). 'Id. ^Ely, supra note 5, at 121. ^Id. There were sustained efforts of Senator Dirksen to pass a constitutional amend- ment overturning the Court's decision in Reynolds, but these efforts failed. See 111 Cong. Rec. 19,373 (1965) (vote for Dirksen Amendment fails by eleven votes in 1965); 112 Cong. Rec. 8,583 (1966) (vote for Dirksen amendment fails by thirteen votes in 1966). In the end, proponents of the Dirksen amendment voiced their support for an outdated cause. See 112 Cong. Rec. 8,325 (1966)(quoting St. Louis Post-Dispatch saying "there is every reason to believe that Senator Dirksen is riding the deadest of dead horses . . . ."). "This phrase was used originally by Justice Douglas in Gray v. Sanders, 372 U.S. 368, 381. It reappeared in Justice Black's opinion in Wesberry v. Sanders, 376 U.S. at 18. The phrase re-surfaced in Reynolds v. Sims, 377 U.S. at 558, and at 587-88 (Clark, J. concurring). Although the slogan "one person, one vote" is itself empty of theoretically substantive meaning, it is a widely understood symbolic statement representing the com- mitment of the court to equally weighted votes for all citizens. "For a review of these rules see Bickerstaff, Reapportionment By State Legislatures: A Guide for the I980's, 34 Sw. L. J. 607 (1980). *^See infra text accompanying note 100. '^Note that the Reynolds Court found that the equal protection clause demands "substantially equal state legislative representation for all citizens, of all places, as well as of all races." 377 U.S. at 568. The Court was not looking for just "fair and effective representation." See infra text accompanying note 201. '"See infra note 184 and accompanying text. 1985] LEGISLATIVE APPORTIONMENT 887 1960's have been used to create the complex holdings of the 1970's. And, in 1983, the Burger Court acted to confuse apportionment law even further. B. The Bifurcated Court On June 22, 1983, the United States Supreme Court released two decisions concerning state efforts to apportion'^ election districts.'^ The Court reached the decision in each case by a five to four vote, but the outcomes in the two cases were otherwise greatly dissimilar.'^ In Karcher V. Daggett, ^^ the Court found a New Jersey apportionment statute'^ which provided for congressional districts with a maximum deviation of .6984<7o from the average to be in violation of article I, section 2 of the United States Constitution. ^^ In contrast, the Court in Brown v. Thomson^^ sustained the Wyoming legislature's state representative system over an equal protection challenge despite an aggregate maximum in- terdistrict population variation of 89%.^^ Justices Brennan, Marshall, and Blackmun consistently opposed the validity of the challenged plans in Karcher and Brown,^^ while Chief Justice Burger, Justice Rehnquist, and Justice Powell consistently sought to uphold the constitutionality •'Technically, apportionment is the task of allotting representatives to legislative districts. Black's Law Dictionary 91 (5th ed. 1979). Districting is the related task of defining the district boundaries. Id. at 427. In a larger sense, and as used by the Court in Reynolds, apportionment refers to the process of deciding whether to have districts, the number of districts to be created, the boundaries of these districts, and the numerical allocation of representatives to the districts. Any of these decisions may affect the weight given to a vote cast within the district. For this reason, this paper uses the term appor- tionment as used in Reynolds, and thus it includes districting. '^Brown v. Thomson, 462 U.S. 835 (1983); Karcher v. Daggett, 462 U.S. 725 (1983). ''In a single day, the Court approved its strictest ruhng in congressional apportionment and the loosest in state legislative apportionment. The cases were dissimilar in other aspects as well. See infra note 30 and accompanying text. 'H62 U.S. 725. •^982 N.J. Laws 1. "The text of this clause provides: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers .... The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative .... U.S. Const, art. I, § 2, cl. 3. ^'462 U.S. 835. ^^Id. at 850 (Brennan, J., dissenting). ^^See Karcher, 462 U.S. at 726 (Brennan, J., writing for the court, joined by Justices Marshall, Blackman, Stevens, and O'Connor); Cf. Brown v. Thomson, 462 U.S. at 850 (Brennan, J., dissenting with Justices White, Marshall, Blackmun joining). 888 INDIANA LAW REVIEW [Vol. 18:885 of the plans. ^'^ The remaining Justices spHt their votes. Justices O'Connor and Stevens sided with the majority in each case, although each wrote a concurring opinion. ^^ Justice White dissented in both cases.^^ These voting records reveal much. Although nine judges voted in each case, only two justices agreed with both results. The dissatisfaction of the seven dissenting justices in the two cases is also reflected in the Brown concurrence in which Justice O'Connor, writing for herself and Justice Stevens, expressed '^gravest doubts"^^ about the constitutionality of a statewide examination of the plan she and Stevens were voting to uphold. Their hesitant concurrence makes it appear that none of the Justices was truly satisfied with the cumulative results of the cases. The only uniformity on the Court in these decisions may be the conviction on the part of each group of Justices that the other Justices were going about their review of apportionment challenges incorrectly.^^ Ironically, it appears that none of the Justices wanted to challenge seriously the basic tenets of either Reynolds or Wesberry.^^ Because all the Justices claimed Reynolds as precedent and because Brown was narrowly decided. Brown may have little precedential value. ^See Karcher, 462 U.S. at 765 (White, J., dissenting with Justices Powell, Rehnquist, and Chief Justice Burger joining); Cf. Brown, 462 U.S. at 836 (Powell, J., writing for the Court, with Justices Rehnquist, Stevens, O'Connor, and Chief Justice Burger joining). ^'Karcher, 462 U.S. at 744 (Stevens, J., concurring); Brown, 462 U.S. at 848 (O'Connor, J., concurring with Justice Stevens joining). ^^Brown, 462 U.S. at 850 (White, J., joining dissent of Justice Brennan); Karcher, 462 U.S. at 765 (White, J., dissenting). ^'Brown, 462 U.S. at 848 (O'Conner, J., concurring). ^'Brown, 462 U.S. at 856 (Brennan, J., dissenting); Karcher, 462 U.S. at 766 (White, J., dissenting). ^The majority in Karcher began its analysis of the case using Wesberry. 462 U.S. at 730. The majority in Brown started its approach with Reynolds. 462 U.S. at 842. Likewise, Justice White's dissent in Karcher looked to Reynolds and Wesberry initially. 462 U.S. at 766 (White, J., dissenting). Although all the Justices claimed to base their views on Reynolds and Wesberry, their disagreement was fundamental, involving the propriety and direction of decisions in the apportionment area decided after 1964. For example, the dissenters in Karcher disagreed that the majority holding there — that there is no de minimus level below which congressional apportionment interdistrict population variations are not subject to judicial scrutiny — restated prior law from Kirkpatrick v. Preider, 394 U.S. 326 (1926). Kirkpatrick involved a challenge to Missouri's congressional redistricting which resulted in a maximum interdistrict population variation of 5.97%, Id. at 526. The Supreme Court expressly stated that no de minimus variance existed that would satisfy the "as nearly as practicable" approach of Wesberry. Id. at 530. Karcher did restate the Kirkpatrick holding, but the dissenting justices in Karcher were prepared to reexamine and overrule Kirkpatrick. See Karcher, 462 U.S. at 766 (White, J., dissenting). The same Justices who dissented in Karcher created new law, however narrow its precedential value, in Brown. This was done by permitting an interdistrict population variation far greater than the generally understood limit of approximately sixteen percent. Brown, 462 U.S. at 850 (Brennan, J., dissenting). In contrast, the dissenters in Brown would have applied previous law, id. at 857-59, just as they had applied the established reasoning of Kirkpatrick to the resolution of Karcher. 19851 LEGISLATIVE APPORTIONMENT 889 The Brown decision's significance lies rather in the signals it sends. In state legislative apportionment cases, the Court by a bare majority appears to be prepared to move in a new direction, away from what had developed since Reynolds, For the first time since Reynolds, it was seen in Brown that a bare majority of Justices will accept gross variations in voting power equality for state legislative offices. It is precisely because the Court did not elucidate in any manageable way when flagrant departures from equal population districts are per- mitted that Brown will spawn distress in legislatures, lower courts, and future Supreme Courts. Brown furthers the possibility of greater ine- quality in voting power at state legislative levels, and its language sidesteps any continued commitment to the purpose and goals of the equal pro- tection clause. An understanding of the stated and unstated sources of the principles used in Brown contributes to a rational explanation of the increasingly Byzantine rules of state legislative apportionment. If the sources of the current distress over state legislative apportionment are stated and under- stood, a way out of the current troubles may appear. C The Invisible Difference Before Brown can be understood, it must be placed in the context of the Court's statements in Karcher about congressional reapportion- ment. The complete context is seen by treating the two cases as companion decisions. Only after such a review can the sources of distress in state legislative apportionment cases be traced to their origins. The appearance of these two disparate opinions on the same day from the same Court seems disquieting.^^ After reading the cases, one is prompted to ask what sort of judicial theory it is that in the name of equality strikes down a scheme with a deviation of only .6984<^o as a violation of article I, section 2 of the Constitution while protecting a scheme which permits overrepresentation of voters by 89% . The anom- aly of these two decisions urges an inquiry into why the Justices took their respective positions, and into how their theories take shelter under a Constitution which has no provisions expressly requiring the result in either case.^' ^°Even if one knows that the Court uses different constitutional bases for requiring equality amongst districts depending on whether it is a congressional or state legislative plan, the results are disturbing. Despite all the difference in the language of the cases, both were decided on similar grounds. See Karcher, 462 U.S. at 744-49 (Stevens, J., concurring). See also Wesberry v. Sanders, 376 U.S. at 22 (Harlan, J., dissenting) (indicating that the court below and the appellants on appeal had argued that the fourteenth amendment controlled the issue of whether equally weighted votes were required in congres- sional districts). ''It is important to remember that both congressional districting schemes and state legislative districting plans are the product of state legislative actions. This fact makes 890 INDIANA LAW REVIEW [Vol. 18:885 Some would argue that there is a rational basis for the different results reached in Karcher and Brown. The Court does use a different constitutional provision for each result. ^^ Since 1964 when the Court used article I, section 2, to decide in Wesberry that congressional districts must be *'as nearly as practicable" of equal population and used the equal protection clause of the fourteenth amendment to decide in Rey- nolds that the same rule applied to state legislative bodies, there has been potential for differences in the equality of interdistrict populations demanded by those two provisions. On one level, the Court's action in Karcher and Brown can be explained as the product of the distinction between state and congressional reapportionment schemes first explicity recognized in 1972 in Mahan v. Howell?^ Since that time, the Court has occasionally voiced a different standard for the resolution of chal- lenges to state legislative reapportionment plans than that used for congressional distribution cases. ^'^ The different results in Karcher and Brown could therefore be seen as the natural result of applying different bodies of law, developed from different constitutional provisions, to dif- ferent "types" of apportionment cases. The error in such an analysis is that even when the apportionment decisions were announced, the Court's use of article I, section 2 of the Constitution to decide Wesberry was seen as a subterfuge. As Justice Harlan pointed out in his Wesberry dissent, the congressional appor- tionment cases had risen to the Court on an equal protection claim. ^^ The error in using different constitutional provisions was most re- cently discussed by Justice Stevens in his concurrence in Karcher. Justice Stevens opined that **the holding in Wesberry as well as our holding today, has firmer roots in the Constitution than those provided by Article I, Section 2."^^ He reviewed the issues that congressional apportionment most Court language urging deference to the state legislative plans, while piling more restrictions on congressional plans, nonsensical. If the legislature is capable of meeting the requirements of congressional districting, it can certainly do state districting. Fur- thermore, prudence would mandate a reversal of the present scheme. It would be more logical to require greater scrutiny of legislative districting plans than of congressional plans, because in legislative plans self-interest is certainly a factor. For a discussion of the supposed "deference" to state lawmakers, see infra text accompanying notes 127-36. ^^See infra note 36 and accompanying text. "410 U.S. 3115 (1972)(The Court sustained a reapportionment plan for the Virginia legislature which contained a maximum interdistrict population variation of 16.4% even though it had disapproved smaller variations in congressional districts). ''See, e.g.. Brown v. Thomson, 462 U.S. 835 (1984); White v. Regester, 412 U.S. 755 (1973); Gaffney v. Cummings, 412 U.S. 735 (1973). '^Wesberry, 376 U.S. at 22 (Harlan, J., dissenting)(demonstrating that an equal protection analysis is more rational than an article I analysis for congressional districting because, by its express terms, article I applies to interstate representation while equal protection implies treating all citizens within a state's jurisdiction equally). ^''Karcher, 462 U.S. at 745 (Stevens, J., concurring). 1985] LEGISLATIVE APPORTIONMENT 891 cases raise and concluded that equality of representation "is firmly grounded in the Equal Protection Clause of the Fourteenth Amend- ment.'*^^ He recognized that using different constitutional provisions in congressional apportionment cases and state legislative apportionment in- volves, at most, the creation of a transparent barrier between identical rationales. The underlying rationale of both the congressional and state legislative apportionment cases is what the Constitution requires of voting power as measured by the phrase "one person, one vote." Thus, it should be irrelevant which constitutional provision is used to reach the result. It is doubtful, therefore, that the different results in Karcher and Brown can be justified by appeals to federalism and by giving different meanings to "equality" in the context of different constitutional pro- visions. It is also difficult to see the results in both cases as correct because the court was so divided on the merits. ^^ The division of the Court throws doubt on the claim that the outcome of each case was fore- shadowed by the dichotomy between congressional and state legislative apportionment cases. As indicated above, only two Justices agreed with the results in both cases. ^^ If the results in Karcher and Brown were dictated by applying past distinctions, then the results should have had greater support among the members of the Court, even accounting for any ideological differences among those members. A four-member dissent represents substantial dissatisfaction with the rules or analysis that the majority used. The fact that only two members of the Court did not dissent in either of these cases suggests that a great majority of the Court is having difficulty applying the language of Baker^ Wesberry, and Reynolds. Both Karcher and Brown reveal that the Justices seem to be satisfied with the language of the early reapportionment cases, but in strong disagreement about the resolutions those cases compel in recent apportionment disputes. '*° The judicial confusion and division in these two cases might lead some to conclude that Justice Frankfurter was correct when he observed that "[c]ourts ought not to enter this political thicket.'"*' However, if he perceived correctly that there would be problems in handling apportionment cases, he incorrectly thought those problems would be political. Instead, the current problems in apportionment cases suggest a judicial thicket created by the Court itself by its confusion on how to use Reynolds and how to define equality. The purpose of this Article is to examine the sources of the distress that has infected the Supreme Court and lower courts in the area of ''Id. at 747. '^See supra notes 23-26 and accompanying text. ^"^See supra note 25 and accompanying text. '^See supra notes 27-29 and accompanying text. ^'Colgrove v. Green, 328 U.S. 529, 556 (1946). 892 INDIANA LAW REVIEW [Vol. 18:885 State legislative apportionment twenty years after Reynolds held out the promise of equality of voting power for all. This examination is ac- complished by asking why the equality of Wesberry and Reynolds was affirmed in Karcher, but came to be disregarded in Brown. It appears that the current judicial thicket has sprung from misapplied deference to state legislative action, unwarranted concessions to bicameralism, totemic respect for political subunits, and unexplainable reliance on incumbency, voter strength, political factors, and history. In addition, therefore, this Article seeks to explore the source of these factors, their policy bases, their rationality, and the extent to which they contribute to judicial rancor over state legislative apportionment. This article will also explore the consequences of permitting these sources to cause dif- ferent treatment of state legislative apportionment. Solutions will be proposed to remedy both the judicial distress currently observed and its sources. II. The Cases A. Karcher v. Daggett Following the 1980 federal census, the federal government notified New Jersey officials that, based on its current population, it was only entitled to fourteen congressional representatives."*^ This required that the state be reapportioned into fourteen districts. Two separate legislatures passed reapportionment bills. "^^ The second of these bills, S-711, also known as the Feldman Plan, was the source of the litigation in Karcher.'^ The Feldman Plan provided for fourteen congressional districts. These districts varied from a population low of 524,825 to a population high of 527,427. The maximum difference between the districts was 3,674 people, or 0.6984^^0 of the average district. "^^ A number of plaintiffs, including Republican congressional representatives, challenged this dis- tricting as a violation of article I, section 2 of the Constitution.'^^ A three-member district court heard the case and held that because there were other reapportionment plans available with substantially lower in- terdistrict population variations there had not been a good faith effort to reduce population disparities between districts. The trial court rejected the defendant's claim that deviations smaller than the statistical error of the latest census meant "equality" for purposes of article I, section 2. Additionally, the court found that the alleged goals of the legislature '^Karcher, 462 U.S. at 727 (1983). ''Id. ''Id. at 727-28. The Feldman Plan was codified at N.J. Stat. Ann. § 19:46-5 (West Supp. 1983). ''Karcher, 462 U.S. at 728. "'Id. at 729. 1985] LEGISLATIVE APPORTIONMENT 893 in selecting the plan could not justify the population deviation in that plan/^ On appeal, Justice Brennan, writing for a five-person majority, agreed with the lower court's disposition of the case/* In reaching this con- clusion. Justice Brennan employed a standard two-part test taken from Kirkpatrick v. Preisler^^ to determine the constitutionality of the proposed congressional districting plan. First, the Court examined the plan to discern whether "the population differences among districts could have been reduced or eliminated altogether by a good-faith effort to draw districts of equal population /'^^ Only if no good faith effort were found would the Court reach the second step of evaluating the state's goal in creating the disparities to see if the goal was legitimate. In order to reach an answer to the question of good faith, the Court had to resolve whether a population variation below one percent (or the marginal undercount in the census tally of New Jersey's population) met the constitutionally required "good faith" effort to achieve population equal- ity.^i The Court rejected New Jersey's attempt to rely on the undercount margin as a de minimus level under which a districting plan would not be subject to constitutional scrutiny. ^^ The Court stated that the ideal of equal representation was best served by using the "best population data available" ;^^ any level of de minimus population variations pre- cluding judicial review would be arbitrary and invite greater population disparities than necessary in a world with computers and calculators. Because the Court found that mere "statistical imprecision does not make small deviations among districts the functional equivalent of equal- ity, "^"^ it considered evidence that plans with smaller deviations had been available to the legislature demonstrative of the fact that a good faith effort to achieve population equality had not been made.^^ Because there had not been a good faith effort to achieve population equality among the districts, the state was required to meet the second test and demonstrate that some legitimate goal was served by the pop- ulation disparities.^^ The state tried to justify the population variation between districts as a state plan to preserve minority voting strength. ^Vfl?. at 729-30. ''Id. at 727. ^^394 U.S. 526 (1969). '°462 U.S. at 730. ''Id. at 731, 735-36. "M at 738. ''Id. (quoting Kirkpatrick, 394 U.S. at 528). ''Id. at 735. "Id. at 738-39. '^Id. at 740. Justice Brennan listed some of the items which might serve as legitimate goals for population disparities: a desire for compactness, a respect for municipal bound- 894 INDIANA LAW REVIEW [Vol. 18:885 but this claim was not supported by the evidence.^'' Thus, the majority found that the very small population differences between congressional districts within New Jersey were forbidden by the Constitution; the differences could have been avoided and were not justified by some legitimate objective capable of specific description and verification.^^ Justice Stevens, in his concurrence, stressed his agreement with the majority, but focused on problems that can arise in equal population districts where there has been gerrymandering to dilute a particular group's voting strength. ^^ His opinion outlined ways "politically salient" classes could challenge reapportionment plans that deny them fairness in the political process. ^^ In particular, he emphasized that numerical equality was only one criterion for measuring the neutrality of a proposed apportionment plan.^' His opinion served to emphasize that even if a plan in question could be sustained because its population variation was de minimus, it might be successfully challenged on other grounds. He hinted that the deviations in population in Karcher were not based on neutral and therefore legitimate criteria and that this might be revealed by simply examining the shape of the districts.^^ Finally, Justice Stevens' opinion served as a plea for the fulfillment of the aims of Wesberry and Reynolds.^^ The dissenting opinions in Karcher, written by Justices White and Powell, stated that the population variation in the New Jersey plan should survive constitutional scrutiny.^'* The dissenters found persuasive an argument that some de minimus level existed below which a court could not question the sources of interdistrict population variations. ^^ This position would have required overruling Kirkpatrick v. Priesler, a 1969 congressional redistricting decision rejecting that same argument. ^^ Justice White's dissent strongly criticized the majority for reading the Constitution as inflexibly requiring strict population guidelines. ^^ White also criticized the majority for overruling sub silentio parts of Kirkpatrick by listing as acceptable state goals criteria rejected in Kirk- patrick', White urged recognition of the fact that the majority had already tacitly overruled part of Kirkpatrick in stating that "any number of aries, a desire to preserve the core of prior districts, and a desire to avoid a contest between incumbent representatives. Id. ''Id. at 742-44. ''Id. at 744. '^Id. at 744 (Stevens, J., concurring). «>/£/. at 754-55. "'Id. at 751-53. "M at 755, 762. "Id. at 765. "^Id. at 782-83 (White, J., dissenting), 784 (Powell, J., dissenting). ''Id. ^394 U.S. 526 (1967). '''Karcher, 462 U.S. at 766 (White, J., dissenting). 1985] LEGISLATIVE APPORTIONMENT 895 consistently applied legislative policies might justify some variance. "^^ White's dissent sought the application of a more flexible principle that had prevailed in state legislative apportioning cases. He would have selected a lower level of de minimus population variation than is accepted in state legislative apportionment cases, but he would still choose an arbitrary point below which the Constitution would not require scrutiny. ^^ Justice Powell wrote a separate dissent to express his views on the potential impact on gerrymandering that he perceived the holding in Karcher would have.^^ B. Brown v. Thomson Justice Powell wrote the majority opinion in Brown v. Thomson,^ ^ narrowly identifying the issue as '* whether the state of Wyoming violated the Equal Protection Clause by allocating one of the sixty- four seats in its House of Representatives to a county the population of which is considerably lower than the average population per state representative."^^ The plaintiff in the case challenged a 1981 Wyoming statute^^ providing for a representative for Niobrara County, even though the population of Niobrara County was 60% lower than the average population per representative district.^'* Based on Wyoming's population, ^^ an **ideal" district would have contained 7,377 individuals. The pop- ulation of Niobrara County at the time was 2,924.^^ The statutory scheme resulted in a maximum deviation of 89% between state districts.^'' The legislative plan also provided that if the grant of a representative to Niobrara County was declared unconstitutional, the county would then share a representative with the neighboring county of Goshen. ^^ The legislature of Wyoming acted under a state constitutional provision re- quiring that every county be used as a representative district. ^^ Indirectly, therefore, the case presented the issue whether the state's constitutional provision, which directed that a district be composed of individual coun- ties for the state House of Representative seats, was permissible under the federal Constitution. *° ^«/c?. at 779. ^^Id. at 781-82. Justice White considered any interdistrict population variation below 5% de minimus and unworthy of constitutional review. Id. at 782. ™/c^. at 784 (Powell, J., dissenting). ^'462 U.S. at 835. '^Id. at 837. ^'Wyo. Stat. § 28-2-109 (1982). '*Brown, 462 U.S. at 843. "Wyoming's population was given as 469,557. Id. at 839. '"Id. ''Id. "Id. at 840. ^'Wyo. Const, art. Ill, § 3. '°Brown, 462 U.S. at 846. 896 INDIANA LAW REVIEW [Vol. 18:885 A three-member district court upheld the constitutionality of the statute, largely because similar apportionment plans had been sustained previously.^' Additionally, the court found that the extra interdistrict population variation attributable to giving Niobrara County a repre- sentative was negligible when compared to the statewide deviation figure.*^ Apparently, the maximum statewide interdistrict population deviation without including a Niobrara County representative would have been 66^0. Because the state's plan to add a Niobrara County representative *'only" raised the maximum deviation by 23%, the Court claimed it was only validating this marginal increase in the maximum interdistrict population deviation.*^ On appeal. Justice Powell's short majority opinion reaffirmed the validity of the Reynolds v. Sims requirement that **the seats of both houses of a bicameral state legislature must be apportioned on a pop- ulation basis. "^"^ The majority, however, reasoned that the rule *' requires only that a State make an honest and good faith effort to construct districts ... as nearly of equal population as is practicable."^^ Powell opined that minor deviations in state legislative districts do not warrant constitutional scrutiny, and that even more substantial variation in pop- ulation districts is tolerable if there is a satisfactory explanation grounded on * 'acceptable" state policy. ^^ The Brown majority found that Wyoming's use of Niobrara County as a unit of representation was acceptable because it was *Hhe result of the consistent and nondiscriminatory application of a legitimate state policy" of treating counties as representative districts. ^^ The Court did not require that the '^consistent and legitimate" state policy be some state goal separate from its apportioning procedure. Thus, instead of requiring a state policy of ''furthering rural interest," for example, the Court impHed that merely a policy of treating voters unequally is legitimate if consistent, nondiscriminatory, and done statewide. The Court attempted to minimize its action in sustaining a plan «'Brown v, Thomson, 536 F. Supp. 780, 783 (1983). ''Id. ''Id. at 783-84. ''Brown, 462 U.S. at 842 (quoting Reynolds v. Sims, 377 U.S. 533, 568 (1964)). "Brown, 462 U.S. at 842. (quoting Reynolds v. Sims, 377 U.S. at 577). Justice Powell added the preface of the word "only" to the requirement. This may indicate a minimization of the meaning of "good faith" effort. '"Id. at 842-43. 'Ud. at 844. The Court tempered its reasoning concerning state policies requiring interdistrict population variations by saying that not any size variation would be accepted merely by following such a consistent and acceptable state policy of treating counties as representative districts. Id. at 844-45. One reason the Court may have done this is that any policy advanced as a purpose for the unequal apportionment would be, by definition, discriminatory. 1985] LEGISLATIVE APPORTIONMENT 897 with an 89% maximum deviation by only considering the deviation resulting from the Niobrara district. The majority did not attempt to validate a statewide plan that contained population deviations of the magnitude of the Wyoming plan. Thus, the Court mirrored the lower court's reasoning that only the 23<^o addition to the maximum interdistrict population variation created by granting Niobrara County a representative would go into the balancing text.^^ The concurrence of Justices O'Connor and Stevens was vital to the resolution of Brown. As noted above, the concurrence stressed that the sole reason for concurring with the majority was the fact that the plaintiffs attacked only the grant of a representative to Niobrara County and not the statewide plan.^^ O'Connor made this observation despite her rec- ognition that there existed great flexibility in applying constitutional standards of equality to accommodate state policies. ^^ O'Connor and Stevens, therefore, limited Brown to a less-than-statewide attack on apportionment based on county lines. The position of O'Connor and Stevens, however, is irreconcilable with the majority's express reliance on a consistent and neutral "state- wide" plan to counterbalance the disparities in the Wyoming plan.^' If it is permissible to urge a statewide policy as justification for voting power inequaHty, one cannot ignore the statewide consequences of a particular application of that policy. Justice Brennan, writing for the four dissenters, argued that when viewed either in isolation or in the context of a faulty statewide scheme, the apportionment of a representative to Niobrara County was consti- tutionally defective. ^^ Brennan outlined the four-part test that has evolved to evaluate state level representative apportionment plans. ^^ First, a 109/o variation is required to obtain constitutional scrutiny for a state districting plan.^"* Second, any deviations greater than ten percent might be justified by a showing of * 'legitimate considerations incident to the effectuation of a rational state policy" ^^ which are free of "any taint of arbitrari- ness."^^ Third, the state must demonstrate that the inequalities exist only to further legitimate state interests and that the inequalities go no further than necessary to achieve those interests. ^^ Brennan asserted that the final prong of the test prevents any plan from attaining constitutional '*M See also supra text accompanying note 82. '''Brown, 462 U.S. at 850. ^Id. at 848. ''Id. at 843. '^Id. at 853 (Brennan, J., dissenting). 'Ud. at 852. ^Id. '''Id. (quoting Reynolds, 311 U.S. at 579). ^Id. ""Id. 898 INDIANA LAW REVIEW [Vol. 18:885 approval if the deviations are so large as to subvert the concept of equal representation.^^ In applying this four-part test to the Wyoming apportionment plan, Brennan discovered that in addition to the variations in Wyoming's plan far exceeding the 10% de minimus level, the reasons proferred by the state for the variations could not justify the magnitude of the variations found either singly or across the state. ^^ He pointed out that Wyoming's defense of population variations, sparseness, and uniqueness had been previously rejected, and he noted that allowing the voters of Niobrara County up to three times the voting power of other state citizens was directly at odds with dicta in Reynolds. ^^ Brennan also attacked the majority's refusal to consider the Niobrara County representative in the context of the statewide interdistrict population variation.'^' Ultimately, Justice Brennan and the other dissenters could only take comfort in pointing out the narrowness of the holding. '°^ III. Sources The source of the difficulties facing judges in state apportionment cases such as Brown can be traced to language in Reynolds v. Sims.^^^ The Court decided in Reynolds and related cases to apply the "one person, one vote" rule to state legislative apportionment. Although Reynolds adopted the goal of equal population districts, the Court introduced language which suggested exceptions that could eventually be used to undermine the equality demanded in that opinion. Inevitably, the Reynolds opinion was subjected to detailed examination. Minor omissions and overlooked arguments have been a source of many severe criticisms of Reynolds. Almost no attention, however, has been given to dicta in Reynolds used since 1964 to undercut its primary commitment to equality of voting power. Although this dicta has not been well examined, several critics of the reapportionment decisions have focused their attention on the fact that Reynolds did not take into account the theories of representation that are necessary to decide intelligently what the Constitution requires. '°^ Justice Frankfurter, the source of this type of criticism, was correct in •"'Id. •^Id. at 853-54. "^Id. at 854-55. '°'Id. at 850-51. '°^M at 850. '°'377 U.S. 533. ^^See, e.g.. Note, Reapportionment on the Substate Level of Government, Equal Representation or Equal Vote! 50 B.U.L. Rev. 231 (1970). See also Lee and Herman, Ensuring the Right to Equal Representation: How to Prepare or Challenge Legislative Apportionment Plans. 5 U. Hawaii L, Rev. 1 (1983). 1985] LEGISLATIVE APPORTIONMENT 899 his dissent in Baker v. Carr^^^ that the decision chose between competing theories of representation.*^ Such criticism, however, ignores the reahty of constitutional htigation; any reapportionment case will pose specific questions regarding the permissibility of a challenged plan. Admittedly, resolving concrete questions will always involve examining some theo- retical aspect of representation, but never will a comprehensive review of all possible representational theories be possible. The fact that the Court must consider representative theories piecemeal, however, is no ground for saying that the issues should never be heard at all. Moreover, the ''case and controversy'' requirement of article III prevents the Court from addressing the issues abstractly. Critics respond to this observation by saying that, if the Court cannot consider the competing theories completely, the issues are too "complex and subtle" for judicial resolution. '^^ There are two flaws in this argument. First, this criticism overlooks the fact that the inequalities objected to in the early reapportionment cases were inad- vertant and frequently in violation of specific state constitutional pro- visions. '^^ Second, the call for the Court to defer to legislative bodies overlooks the legislative origins of the fourteenth amendment's com- mands. With respect to the first flaw, the legislative bodies this criticism seeks to bestow with an exclusive right to resolve the "complex and subtle" competing theories of political representation had not done so, or had done so in violation of their own local constitutional provisions. Even where representational theories had been considered, the result was to validate the status quo.'^ There is nothing "subtle" about clear violations of state law. The theme resounding from apportioning plans attacked in the 1960's was that of self-serving politicians ignoring their own state constitutional commands in order to maintain power. '^^ The Court's opinion simply responded to the blatant inactivity of legislatures regarding apportionment . • * ' The second criticism, that the Court should defer to a legislature '"^Baker v. Carr, 369 U.S. at 300 (Frankfurter, J., dissenting). ^°'^E.g., Rossum, Representation and Republican Government: Contemporary Court Variation on the Founders' Theme, 23 Am. J. Juris. 88, 95 (1978) (referring to Justice Fortas' comment in Avery v. Midland County, 390 U.S. 474 (1968)). '°*Averbach, The Reapportionment Cases: One Person, One Vote — One Vote, One Value, 1964 Sup. Ct. Rev. 1, 46; Lee and Herman, supra note 104, at 3. ^'^See, e.g., Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 718. See also Lee and Hermann, supra note 104, at 3. ''""Reynolds, 311 U.S. 540, 553; Cf. Baker v. Carr, 369 U.S. at 191 (Tennessee failed to comply with state constitution for over sixty years requiring substantially population- based reapportionment every ten years.). See also Lee and Hermann, supra note 104, at 3. 3. '''Reynolds, 377 U.S. at 568. 900 INDIANA LAW REVIEW [Vol. 18:885 which could discuss the "complex and subtle" issue in representational theory, is inapt; that is actually what the Court did. The draftsmen of the fourteenth amendment provided the Court with specific language requiring equal protection for citizens under state laws."^ In construing the fourteenth amendment to require voting power equaility, the Court necessarily implied that the "complex and subtle" issues of represen- tational theory were settled by giving "equal protection" constitutional status by the amendment process. The various lawmakers and assemblies ratifying the fourteenth amendment had passed judgment on the issue and had decided on equality. In the context of apportionment, the Court merely used a functional definition of equality, a test an ordinary American would understand — "one person, one vote." The Court did not act as an academic commission or theoretical "think tank" to uncover all possible meanings of equality. When the Court looked closely at the fifty governments of the United States of America, it discovered that, in a country which prided itself as being the home of free and equal people, the reality was that, as the term was commonly understood, people were not being treated "equally" by their state governments. In 1964, the Court found itself in the position of being the boy-tailor observing the emperor in his new suit. The cloth of popular equality had never been spun in many of the states, and the Court's responsibility was to announce that fact publicly to the parties before it. In Reynolds v. Sims, there may have been competition among various theories of representation, but, more pragmatically, there were simply facts demonstrating the gap between what the constitutions of both the United States and Alabama professed to require and the reality of 1962 voting power inequahties in Alabama. The genius of the Court's solution to this problem in the form of the "one person, one vote" rule was its utter simplicity.''^ This solution surely meant, broadly speaking, that, in the United States, under the post-Civil War Constitution, majority rule is the rule in the selection and operation of the legislature and that, roughly speaking, the equal protection clause requires equal treatment of people's votes regardless of their status, location, or politics.''"* Theories of proportional repre- sentation, qualitative representation, direct representation, and indirect representation are only tangentially related to this basic concept."^ Thus, "^The fourteenth amendment provides in part: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend, XIV, § I. "'Ely, supra note 5, at 121. ""See Reynolds, 377 U.S. at 565 ("Logically, 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. . . .[T]he concept of equal protection has traditionally been viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.") ''^See Rossum, supra note 107, at 104-109. (Reynolds Court was not sensitive to 1985] LEGISLATIVE APPORTIONMENT 901 the main criticisms of Reynolds do not survive sustained scrutiny. The Court was not faced with the task of examining all representation theories, and it used a pragmatic definition of equality to enforce the nationally- created mandate of equality. A. Method of Review Even though those criticisms have failed, Reynolds has caused sub- sequent difficulty. One of the major sources of distress in state legislative apportionment cases stems from the dicta in Reynolds that both estab- lished a firm rule to guide lower courts and rendered uncertain the strength and dimensions of that rule. In announcing the holding in Reynolds, the Court stated that, **as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be ap- portioned on a population basis. "''^ This rule, as stated, captures the simple **one person, one vote'' standard in instructive and plain lan- guage."^ Elsewhere in its opinion, however, the Reynolds Court made it clear that this rule was not as definite as it appeared. The Court's language distorted the scale with which trial court judges could measure individual cases. The Court opted to thrust flexibility into its manageable "basic Constitutional standard": [W]e deem it expedient not to spell out any precise constitutional tests. What is marginally permissible in one state may be un- satisfactory in another, depending on the particular circumstances of the case. Developing a body of doctrine on a case-by-case basis appears to us to provide the most satisfactory means of arriving at the detailed constitutional requirements in the area of state legislative apportionments.''^ This case-by-case approach is not dissimilar from what the Court questions of reflective, quantitative, and indirect representation). See also Lucas v. Forty- Fourth General Assembly of Colorado, 377 U.S. 713 (1964). In Lucas there appeared to be a competing political philosophy accepted by a majority of the voters of the state. It cannot be said with any certainty, however, whether the approving voters were approving a political philosophy or the particular political regime then in power that had stagemanaged the wording of the proposed amendments and politicized each proposal See id. at 731- 32. In any event, the political philosophy advanced there, if it truly was one, was illegitimate precisely because it attempted to contravene controlling federal constitutional precepts. ''"Reynolds, 311 U.S. at 568. '"Ely, supra note 5, at 121. Ely has praised the "one person, one vote" rule for its manageability. Regardless of the degree of alteration in state legislatures such a rule would require, it at least has the benefit of being easily applied. The risk, of course, especially in a computer age, is that it will be applied too well without judicial intervention to prevent equipopulous gerrymandering. Justice Steven's approach to combat this problem was outlined in Karcher, 462 U.S. at 744 (Stevens, J., concurring). See, e.g., Davis v. Bandemer, No. 84-1244 (U.S. oral argument heard Oct. 7, 1985) (decision pending). '''Reynolds, 311 U.S. at 578. 902 INDIANA LAW REVIEW [Vol. 18:885 has done in other areas of constitutional law,"^ and this approach would undoubtedly have been appropriate if the Court had been merely returning a new doctrine to lower courts for growth and evolution. Such, however, was not the case. Instead, Reynolds both gave to and took from lower courts. The Court admiringly said in Reynolds that the lower court had been correct in recognizing that ^^legislative reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion . . . ."•^^ By this wording, the Court returned the issue to state legislatures and lower courts. The inherent contradiction of urging case-by-case review of appor- tionment legislation and urging judicial deference to state legislative decisions on apportionment was not immediately apparent after Reynolds. In the next several state apportionment cases to rise to the United States Supreme Court, there was a trend towards developing constitutional rules on a case-by-case basis. For example, in Mahan v. Howell, ^^^ the Court approved permitting states to justify fairly substantial deviations in in- terdistrict population by relying on a policy of preserving political bound- aries.'^^ At the same time, however, the Court indicated that the range of the deviation accepted there, 1697o, was probably the greatest that the Constitution would permit. '^^ In White v. Regester^^"^ and Gaffney V. CummingSy^^^ the Court permitted evolution in state legislative ap- portionment law by accepting the claim that interdistrict population variations below 10% were de minimus and therefore not subject to constitutional review . ' ^^ The combination of the judicial rules from Mahan, Gaffney, and White established a basic guideline for legislatures to follow in districting. The guidelines, while perhaps not mandating the equality originally envisioned in Reynolds, did provide a workable scheme for a state legislature faced with the task of reapportionment. A legislature knew that any deviation it permitted below ten percent was free from scrutiny. Thus, any policy behind establishing unequal districts did not need to be articulated if the interdistrict population variation was less than 10%. "'5ee, e.g., Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (reversing a dismissal of a claim for a private cause of action against governmental agents for violation of the petitioner's fourth amendment rights, without providing an exhaustive outline of when such actions are possible). '"^Reynolds, 377 U.S. at 586. '^'410 U.S. 315 (1972). '"/462 U.S. at 849 (O'Connor, J., Stevens, J. concurring). ^«'377 U.S. at 579-80. ^"2229 F. Supp. 754 (D. Conn. 1964). ^"M at 763. ^'"377 U.S. 713. '''Id. at 738. ^"'•385 U.S. at 447. ^"^394 U.S. at 536. ^'«403 U.S. 182. ''"Id. at 185. '"''Id. '"'Id. at 189 (Brennan, J., dissenting). 2^410 U.S. 315. '"'See Brown, 462 U.S. at 841 n.5, 843. '"''Mahan, 410 U.S. at 334 (Brennan, J., dissenting). Justice Brennan's statements on 1985] LEGISLATIVE APPORTIONMENT 929 Even with Mahan's language, the Court as late as 1977 still accepted most of the Reynolds position on geography, topography, and history. In Chapman v. Meier, ^"^^ the Court took great pains to assert that "sparse population is not a legitimate basis for a departure from the goal of equality. "^'^^ And in 1977, the Court found that a historical policy against fragmenting counties was insufficient to overcome the strong preference for single-member districts. ^^^ By 1983, however. Justice Brennan, writing in Karcher, included in his list of considerations which may justify population deviations in congressional districting the goal of "preserving the cores of prior dis- tricts. "^^^ This goal would seem to be predicated on an historical con- sideration declared unacceptable in his prior opinions. His position in Karcher suggests that he, along with the other Justices, was prepared in 1983 to recognize more the controlling hand of history in permitting some deviation from equality in apportionment cases. He would not, however, embrace the extent to which the economic, geographic, and demographic features unique to Wyoming were accepted by the lower court and the Supreme Court. ^^^ What he feared, that the temptation will be too great for legislatures to justify otherwise unacceptable pop- ulation deviations on the uniqueness of their situation, were the same fears leading the Reynolds Court to reject history as a basis for inequality. Brown increased the possibility that these fears will be realized and diminished the clarity of Reynolds' original commitment to equality. H. Incumbency Some legislatures, in passing apportionment plans, have either overtly or covertly attempted to minimize future competition against incumbent legislators.^'^ This subject has been touched upon by the courts, resulting in confusion over whether the equal protection clause forbids or permits the goal of protecting incumbents. If this goal is permitted, the question remains whether it is rational to limit to an arbitrary percentage the interdistrict population variations permitted to further such a goal. In one of the first cases after Reynolds to consider this problem, the Nebraska District Court in League of Nebraska Municipalities v. Marsh^^^ heard a challenge to a districting plan that had been created this subject are probably true. It is hard to envision a state that has no unique geographic, demographic, economic, historic, or topographic factors which could be used to deviate from equality of population, even where equality is otherwise feasible. ^^'420 U.S. 1 (1974). ^"'Id. at 24. ^"'Id. at 25. ^"'Karcher, 462 U.S. at 740. ^'^Brown, 462 U.S. at 841. ^°^See, e.g.. Burns v. Richardson, 384 U.S. 73, 89 n.l6 (1965) (protection of incumbents does not itself establish invidiousness). ^'"242 F. Supp. 357 (D. Neb. 1965). 930 INDIANA LAW REVfEW [Vol. 18:885 in part to avoid contests between incumbents. ^^^ The district court found that a plan with population variations that could be explained at least partly as an attempt to minimize incumbent contests did not represent a good faith effort to achieve equality of population among districts. ^"^ The court invalidated the plan,^^"* stating that under Reynolds, the goal of reapportionment was "just representation of the people, not the protection of incumbents in the legislative body."^^^ This reasoning seemed to follow the idea in Reynolds that attempts at equality must be made in good faith. Because good faith required a sincere effort on the part of the legislators to clear everything from their minds except population when devising an apportionment plan, protection of incum- bents was not permissible. The reasoning in Marsh was used elsewhere. In Klahr v. Williams, ^^^ a challenge to the redistricting of Arizona uncovered the fact that the computer used to devise the plan had been programmed to minimize contests between incumbent legislators. ^°^ Because of the consequent interdistrict variations in population, the court found the plan defective. ^°^ The court agreed with the district court of Nebraska in concluding that ''the incumbency factor has no place in any reapportionment or redis- tricting. "^^^ In Burns v. Richardson,^^^ the Supreme Court had merely indicated its position in a footnote that plans designed to avoid incumbency battles were not necessarily invidious.^" Indeed, under equal population districts, a decision to avoid incumbent battles need not necessarily dilute the strength of any individual voter. When the courts in Marsh and Klahr examined the challenged plans, however, the evidence was unmistakable that the goal of reducing incumbency fights had contributed to the variation in population among the districts. By realizing that the gov- ernment was not designed to make it convenient to run for office, the courts rationally concluded that incumbency was not a legitimate basis for those population variations. After the Supreme Court said that incumbency protection was not necessarily invidious, it seemed that while the Court was not prepared to invalidate automatically a district drawn to prevent incumbency fights, it would do so when population variations could be reduced by removing that criterion from consideration. In Karcher, however, decided the same "«M at 359-60. '°'Id. at 361. ''''Id. at 360. ^'^313 F. Supp. 148 (D. Ariz. 1970). ''"Id. at 151-52. '"«M at 151. ''""Id. at 152. ^'"384 U.S. 73 (1966). '"M at 89 n.l6. 1985] LEGISLATIVE APPORTIONMENT 931 day as Brown, Justice Brennan, writing for the majority, listed a host of state policies, including avoiding incumbent battles, that might justify population variations. ^'^ Because even the majority in Karcher seemed to accept avoidance of incumbency contests as a legitimate reason for population variation in Congressional districting, the looser standards already acknowledged for state redistricting could now be permitted as well. Thus, the clear and easy mandate of Reynolds is clouded further. /. Ambiguous, Cautious Language One source of problems for those given responsibility for imple- menting Reynolds is the potentially contradictory and weak language that crept into the opinion. Generally, the opinion required equality of voting power through population-based apportionment. Occasionally, however, the Court's language was equivocal. For example, in the con- clusion of the passage concerning bicameralism, the Reynolds Court made the statement that "these and other factors could be, and are presently in many States, utilized to engender differing complexions and collective attitudes in the two bodies of a state legislature, although both are apportioned substantially on a population basis. "^'^ It is unclear why the Court included the word "substantially." Earlier, the Court had made its announcement that "[fjull and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state leg- islature."^'^ "Equal" is an absolute; either a person's vote counts the same as other votes or it does not. Thus, there is no room for modifying "equal" with "substantially." Elsewhere in Reynolds, the Court had written that "[pjopulation is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies."^'^ Im- mediately below the passage indicating that bicameralism was still viable for houses apportioned "substantially on a population basis, "^'^ the Court wrote: By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean that the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.^'^ '''-Karcher, 462 U.S. at 740. ^'^377 U.S. at 577 (emphasis added). ^'Vc^. at 565 (emphasis added). '''Id. at 567. ''''Id. at 577. '''Id. 932 INDIANA LAW REVIEW [Vol. 18:885 The Opinion thereby creates confusion as to whether a state legislature must make a good faith effort to achieve interdistrict population equality or merely a good faith effort to achieve substantial interdistrict population equality. In theoretical terms, this distinction is potentially great. A commitment to equality of voting power eliminates all non-neutral, non- population districting restrictions. A commitment to substantial equality requires elimination of only the least favored non-neutral districting requirements. As long as the Warren Court was reviewing state apportionment plans, the commands of the equal protection clause as interpreted in Reynolds actually served the goal of equality of voting power. When Kirkpatrick^^^ and Swann^^'^ established that there was no de minimus level for reviewing congressional apportionment cases, it seemed a logical conclusion that the same sternness toward interdistrict inequalities would apply under the equal protection clause. ^^° In 1972, however, the new Burger Court majority in Mahan seized upon the Reynolds dicta examined above to find that a different standard of review existed for state legislative apportionment. The dichotomy accepted in Mahan seemed a natural predicate, however, to a Court more concerned with protecting the autonomy of state legislatures than with individual voting rights. By the time Gaffney^^^ was decided, the primary goal identified by the language "equally effective vote" for each citizen^^^ had been altered. No longer was the Court even verbally committed to equality of rep- resentation at the state level. Instead, it would suffice under the equal protection clause for a state to provide "fair and effective representa- tion. "^^^ This change in wording permitted substantial deviations from equality within the districts. As Justice Brennan reaffirmed in the majority opinion of Karcher, article I, section 2 continues to "estabhsh a high standard of justice and common sense for the apportionment of congres- sional districts: equal representation for equal numbers of people. "^^"^ In contrast, the language of Brown reflects a different understanding of Reynolds. Justice Powell conceded that the policy advanced by the state would not guarantee protection for any magnitude of population deviation: "Even a neutral and consistently apphed criterion such as use of counties as representative districts can frustrate Reynolds' mandate of fair and effective representation if the population disparities are excessively high."^^^ This language appears to be based on Reynolds but ^'«394 U.S. 526. '•"385 U.S. 440. ""Mahan v. Howell, 410 U.S. 315, 334, 340 (Brennan, J., dissenting). "'412 U.S. 735, '"377 U.S. at 565. See also id. at 579. "H12 U.S. at 749. '''Karcher, 462 U.S. at 730 (quoting Wesberry v. Sanders, 376 U.S. 1, 18 (1964)). '''Brown, 462 U.S. at 845. 1985] LEGISLATIVE APPORTIONMENT 933 actually sidesteps Reynolds' primary concern with equality.^^^ The Rey- nolds Court had discussed fair and effective participation only through the mechanism of equality of voting power. ^^^ The transition from strict equality to **fair and effective represen- tation" apparently took place first in 1972 in Gaffney v. Cummings^^^ when the court considered a Connecticut apportionment scheme. While Reynolds had been cast principally in terms of equal representation and equal voting power, as reflective of the constitutional clause under which the challenges were mounted, the Court in Gaffney made the transition in reapportionment cases to a discussion of whether the apportionment scheme provided for "fair and effective' '^^^ representation. Because "fair" and "equal" are not synonymous,"^ this change of language is a sign of the Court's changing attitude toward the requirements of the equal protection clause. Based on this changed focus, any guidelines that had developed were then weakened or destroyed by Brown. The Court in the early 1970's thus began to review the reapportionment cases with focus on the due process clause and not on the equal protection clause — on notions of fairness rather than notions of equality. The effect of dropping the "equality" standard of Reynolds has been to make the Court's scrutiny a balancing test rather than a search for equality and justification for deviations from equality. Unfortunately, the transition from the Court's commitment to equality to its search for fairness has not been accompanied by standards to measure that fairness. Thus, the courts and legislatures are left, after Brown, to their own diverse conclusions as to what "fair and effective" representation may be. This result is another step towards confusion in apportionment, a confusion that could end in the submersion of equality. IV. Implications Between 1971 and 1983, the Supreme Court tended to resolve ques- tions between the state and an individual in favor of the state. Several of the current Justices are known for their states' rights position,"' and the direction taken in the apportionment cases suggests that greater deference will be given to state legislative bodies in dividing their territory for state legislative districts. The primary goal of equality has become burdened with more and more tangled factors that have justified de- viations from pure mathematical equality. "*5ee supra note 322. "^377 U.S. at 565. '^H\2 U.S. 735. ^^'^Id. at 749 ("minor deviations which do not deprive one of fair and effective representation in his state legislature are not invalidated by the Equal Protection Clause"). ""Fair means having the qualities of impartiality and honesty. Black's Law^ Dictionary 535 (5th ed. 1979). Equal means "on the same . . . level with." Id. at 481. "'Note, for example, National League of Cities v. Usery, 426 U.S. 833 (1976), and its progeny. 934 INDIANA LAW REVIEW [Vol. 18:885 Just as more and more responsibility is being shifted to the states, it appears that the Court is preparing to slacken its commitment to individual equality of voting power. This may mean that the future will permit more state decisions made by fewer representative groups than Reynolds envisioned. This result is particularly disconcerting because, while Reynolds and even Brown still pose some limits to interdistrict population deviation, the disparate approaches in those cases will result in gross inconsistencies. Apportionment in many states may satisfy neither the goal of equality demanded by the federal Constitution nor the goals of individual state constitutions which regulate apportionment on a non- population basis. Therefore, both the state and federal constitutions are frustrated to varying degrees, while no rational basis exists for such a result in either constitutional documents, needs of state government, or theories of political structure. The by-product of Brown is the unleashing of claims for inequality that could result in irrational patterns of ap- portionment. Would it not be better simply to require, as the Supreme Court does now in congressional districting, that the goal of population equality be reached as closely as practicable, regardless of county boundaries? This policy would still permit a state to honor such factors as political subdivision boundaries where convenient, but would put states under no obligation to strain to salvage those boundaries at the expense of equality. This approach would facilitate equality of voting power, support leg- islative freedom from federal intrusion, and minimize litigation and political infighting over the apportionment process. The theory of Karcher, if applied to state legislative apportionment, would solve most of the perplexing and insoluble conflicts in state legislative apportionment law. While superficially very intrusive, a flat rule that absolute equality is the primary goal of apportionment has the simplicity that will enable a legislature to monitor its own compliance with the equal protection clause. Instead of establishing a system which requires court approval and involves court delay and antagonism every time reapportionment is carried out, a flat and simple rule would minimize the courts' future role in evaluating apportionment schemes. While even Reynolds considered that there are some legitimate bases for variation among districts, the evolution of congressional apportion- ment cases indicates that, where a real effort is made, those variations can be fashioned to produce only minute inequalities. Permitting greater inequalities than are inherent in the measurement and quantification of population seems unnecessary given the current development of computer technology for constructing districts. Furthermore, lest such development hastens a trend to equipopulous gerrymandering, the Court should in- dicate its willingness to use the due process clause to develop, along the line of Justice Stevens' concurrence in Karcher,^^^ rules to prohibit any '"See supra text accompanying notes 59-62. See also Davis v. Bandemer, No. 84- 1985] LEGISLATIVE APPORTIONMENT 935 blatant attempt to dilute the effectiveness of any particular recognizable group. Just as computers can be programmed to give extraordianry gerrymanders, they can be programmed to construct completely neutral- criteria equipopulous districts. The role of the Court should be to ensure that that is done whenever feasible. The framers of the Constitution could have selected other modes of representation other than population — and they did so under the demands for compromise."^ When the agony of the Civil War gave birth to the equal protection clause in the fourteenth amendment and a renewed commitment to equality, however, a profound commitment to a particular kind of democracy was made. Until the Court reviews its position on state apportionment and reduces the unhealthy tension between outdated provisions of state constitutions and the commands of the equal protection clause, it can assuredly be said of America's state elections that '*some voters are more equal than others."""* Such a situation can only breed contempt for the system that fosters such inequality. It would behoove the Court to re-think its position on state level reapportionment and develop methods, where necessary, to ensure that the primary goal in apportionment in each state remains equality and that the chance for hostile division over the goals of apportionment be avoided. If this is not done, the judicial distemper which now surfaces when apportionment cases arise in the states can only increase in the years to come. The vision of America as a country committed to equality in its Constitution is tarnished by a judicial system that permits a compromise of equality to the extent seen in Brown. The realities of reapportionment litigation after Brown suggest that tension between state and federal constitutions will allow gross inequalities of voting power based on one or many of the competing interests legitimized by Brown. Furthermore, that tension, along with confusing strands of legal theory and rules built up or around dicta in Reynolds, inhibits the orderly growth of a rational and consistent approach to apportionment under the federal Constitution. The Court's re-examination of Brown and an application of the strict equality standards of Kaurcher could eliminate the unhealthy tension and confusion experienced by state legislatures, courts, and the federal government when they are faced with state reapportionment questions. 1244 (U.S. oral argument heard Oct. 7, 1985) (decision pending). "^"Representatives . . . shall be apportioned among the several States . . . according to their respective Number of free persons, . . . and three fifths of all other Persons. U.S. Const, art. I, § 2, col. 3. This was the famous compromise to mollify the slave states. ^^*See supra note 315.