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Throw out "One Person, One Vote"

By Robert S. Sargent, Jr.
web posted June 24, 2002

No county shall be divided in the formation of a senate district. No county shall be divided in the formation of a representative district. (From Article II, Sec. 3 and Sec. 5 of the North Carolina State Constitution.) ...Both houses of a state legislature must be apportioned on a population basis. (Reynolds v. Sims, U.S. Supreme Court, 1964.)

Since counties are not equal, either in size or population, it is impossible to comply with both of the above mandates. Counties must be broken up to comply with the concept of equally weighted votes, and North Carolina, as well as other states, is going through a big mess right now trying to sort out these issues. To understand the federal/state conflict, one must understand the "one person, one vote" decisions of the U.S. Supreme Court.

This country does not have a tradition of apportionment based on equal population. In fact, unequal representation is written into the U.S. Constitution. In Article I, Section 2, it says, "...each state shall have at least one Representative," (regardless of population). Article I, Sec. 2 also says, "Representatives shall be apportioned among the several states...". Even if the number of people represented is not exactly the same, Representative districts shall not cross state lines. Most important, Article I, Section 3 says, "The Senate of the United States shall be composed of two Senators from each state."

The states pretty much copied the Federal system, dividing the states into political units, or counties, and not dividing the counties based on population. This method was democratically determined in almost all the states, the people preferring to keep counties whole, with each county given at least one legislator, regardless of population. This was the accepted method until Earl Warren and his brothers on the U.S. Supreme Court decided that this offended them. Beginning in 1962, in a series of cases, beginning with Baker v. Carr, the court found that unequal apportionment was unconstitutional. This presented a problem since the Constitution mandated unequal apportionment. They decided to use the "Equal Protection Clause" of the 14th Amendment as the basis of their argument.

The "Equal Protection Clause" was included in the 14th Amendment to prevent the states from discriminating against ex slaves. As long as a state doesn't arrange the electoral districts to dilute the voting strength of one race, or, say, one religious group, it doesn't violate the 14th Amendment. In fact, the 14th Amendment specifically gives the states the right to deny the vote to its citizens: "...when the right to vote...is denied...or in any way abridged...the basis of representation therein shall be reduced...". Imagine using the 14th Amendment to force the concept of "one person, one vote" on the states when the Amendment gives the states the right to deny the vote (granted, they'll be punished for it)! As Justice Harlan said in his dissent in Reynolds v. Sims, "Had the Court paused to probe more deeply into the matter, it would have found that the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures." After all, when the ex-Confederate states applied to be readmitted to the Union, why would the Congress that wrote the 14th Amendment accept state constitutions that violated the amendment?

There can be any number of rational reasons to favor geography over population, to keep counties whole: protecting sparsely populated agricultural counties from heavily populated urban counties; putting constraints on gerrymandering; respecting citizens identification with his or her political unit; diluting the strength of a county that has a major industry; but for whatever reasons, as Justice Frankfurter pointed out in his dissent of Baker v. Carr, proportional apportionment "...has never been generally practiced....It was not the English system, it was not the colonial system, it was not the system chosen for the national government by the Constitution, it was not the system...practiced by the States at the time of the adoption of the Fourteenth Amendment, it is not predominantly practiced by the states today." One person, one vote is an idea thought up by a majority of nine men in 1962, that was imposed upon the states and the people in 1964, and replaces complex legislative judgments with arithmetical puzzles. It continues, and will continue to make a mess of every state's redistricting every ten years.

If you tell yourself that, like the Warren Court, you are offended by non-proportional representation, ask yourself this: Assuming there are 100 U.S. Senators, would you accept California having ten Senators, and Idaho, Montana, Wyoming, and North Dakota collectively having one? Perhaps it's time for the present Supreme Court to overturn Baker v. Carr and Reynolds v. Sims.

This is Robert S. Sargent, Jr.'s first contribution to Enter Stage Right. He can be reached at rssjr@citcom.net.

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