APPORTIONMENT,
ELECTION METHODS, AND
DISTRICTING
Topic #21
The Legislative Compromise
• Recall the Legislative [or Connecticut] Compromise
pertaining to the representative character of Congress.
• Congress is bicameral with:
• two coequal houses with substantially equal powers; and
• in particular, legislation requires the support of a concurrent
majority in both houses.
– In the House of Representatives, states have representation
(approximately) proportional to population.
• Members serve two-year terms.
– In the Senate, states are equally represented.
•
•
•
•
The size of the Senate = 2 x S, where S is the number of states.
Senators serve staggered six-year terms.
Senate “districts” coincide with states.
Since ratification of the 17th Amendment, Senators have been
popularly elected, in the same manner as Representatives.
The Apportionment of House Seats
• The [original] Apportionment Clause:
– Representatives and direct Taxes shall be apportioned among
the several States which may be included within this Union,
according to their respective Numbers, which shall be
determined by adding to the whole Number of free Persons,
including those bound to Service for a Term of Years, and
excluding Indians not taxed, three fifths of all other Persons.
– 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 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.
– The Constitution does not fix the size of the House.
– The Constitution prescribed a provisional apportionment of 65
House seats.
Apportionment of House Seats (cont.)
• Note that apportionment is based on the total population
of each state, not on
– the number of legal residents,
– the number of citizens,
– the size of the voting age population,
– the number of eligible, registered, or participating
voters.
– Some technical questions remain, e.g.,
• out-of-state college students,
• personnel stationed at military bases,
• prisoners, etc.
Apportionment of House Seats (cont.)
• The first Congress had to pass legislation to
– create a Census Bureau to conduct an initial census that would
establish the “actual enumeration” of state populations;
– fix the size of the House [at 105], and
– apportion these seats among the states “according to their respective
numbers.”
• The Constitution does not specify a mathematical formula for this
apportionment.
– It was quickly discovered that the mathematical problem of
apportionment has no straightforward solution.
• The basic problem is that [for House seats as opposed to “direct
taxes”] the answer must be in relative small whole numbers:
– how to “cure the mischief of fractions”?
– Two rival apportionment formulas were proposed.
• (Secretary of Treasury) Alexander Hamilton’s Method of Largest
Remainders.
• (Secretary of State) Thomas Jefferson’s Method of Greatest
Divisors.
• The two methods produced different apportionments of 105 House
seats.
Apportionment of House Seats (cont.)
• The apportionment bill of 1790:
– Congress passed a bill that apportioned 105 House seats on the
basis of Hamilton’s method.
– Following Jefferson’s advice, President Washington vetoed the
bill [the first Presidential veto in history].
– Congress then passed another apportionment bill using
Jefferson’s method, which the President signed.
• Throughout the 19th Century, Congress passed a new
apportionment law every decade.
– Each bill increased the size of the House,
• typically so that no state would lose House seats.
– Bills in different decades used different apportionment formulas.
– The process was quite political, often partisan, and inconsistent.
– By the early 20th Century, the House size exceeded 400.
Apportionment of House Seats (cont.)
• With the admission of Arizona and New Mexico into the union in
1912, Congress froze the House size at 435.
– The size was temporarily expanded to 437 to give temporary
representation to Alaska and Hawaii in the late 1950s.
• In 1940, Congress permanently adopted the Method of Equal
Proportions for apportioning the 435 seats.
• Since then, the apportionment process has been on “automatic
pilot,” in that Congress does not pass a new apportionment bill every
decade.
• Last Spring the Census Bureau tried to get an accurate count of the
population of each state as of April 1, 2010.
• In April 2011, the Census Bureau will announce
– the official apportionment population of each state (based on the 2010
census), and
– the number of House seats each state will have for the coming decade
(based on the Method of Equal Proportions).
The
1990
and
2000
Apportionments
Also see
K&J, p.
192
Regional Shift in House Seats: 1900-2000 (%)
The Election of Representatives
• Article I, Section 4. The times, places and manner of
holding elections for Senators and Representatives, shall
be prescribed in each state by the legislature thereof; but
the Congress may at any time by law make or alter such
regulations, except as to the places of choosing
Senators.
• Congress has used its power to establish a nationally
uniform day for electing Senators and Representatives
[and also Presidential electors].
• Typically states have prescribed election of their House
members from single-member districts.
– Since 1968 (and in various earlier periods), Congress has
required states to use SMDs for electing Representatives.
The Election of Representatives
• A variety of election methods might be used in SMDs:
– Simple Plurality: vote for one candidate; the candidate with the most
votes wins.
– Plurality Plus Runoff: vote for one candidate; if the candidate with the
most votes is supported by a majority of votes, that candidate is
elected; otherwise, there is runoff (second election) between the top
two candidates.
– Instant Runoff Voting: rank the candidates by order of preference; if
a candidate is supported by a majority of first preference ballots, that
candidate is elected; otherwise, the candidate with the fewest first
preference is eliminated and his/her votes are transferred on the
basis of second preferences; if a candidate is now supported by a
majority of first preference and transferred ballots, that candidate is
elected; otherwise, continue in like manner until a candidate is
supported by a majority of first preference and transferred ballots.
– Approval Voting: vote for any number of candidates; the candidate
with the most votes is elected.
– Note: with multimember districts [MMDs], a wider variety of election
methods is available, including many variants of proportional
representation.
The Election of Representatives (cont.)
• Even when allowed a choice by Congress, states have
almost always chosen to use the Simple Plurality
method.
• Any SMD method requires that each state with more
than one House seat be divided into districts equal in
number to its apportionment of House seats.
– This process is variously called:
• (re)districting,
• (re)apportionment [which tends to confuse the creation of
districts within states with the allocation of seats among
states], and
• gerrymandering [a somewhat derogatory term].
– We shall use the [neutral] term districting.
• These districts are called Congressional Districts (CDs).
– Members of state legislatures are similarly election from districts,
though not always SMDs.
Congressional Districting
• State legislatures determine how Congressional District
boundaries are drawn following each census.
– Usually, districting is done by the legislature itself.
• State legislatures typically also draw their own
district boundaries.
• The districting process is highly contested and
political and often partisan.
• State legislative elections take on special
importance every 10 years.
– A few states set up special (more or less politically
neutral) commissions to draw district boundaries.
– Sometimes legal actions are initiated, with the result
that courts in effect draw district boundaries.
Congressional Districting (cont.)
• Legislative districting raises two questions:
– malapportionment, pertaining to the size (population)
of the districts, and
– gerrymandering, pertaining to the geographical shape
of the districts.
• District size:
– If districts with (perhaps highly) unequal populations
each elect one representative (with one vote in the
legislature), the voting power of individual voters
varies from district to district.
– Note that the U.S. Senate is highly malapportioned in
this sense.
Malapportionment
• Prior to the 1960s, many states had malapportioned
Congressional districts.
– State legislative districts were often malapportioned in
even greater degree.
– State legislatures were often dominated by rural
representatives who resisted redrawing district
boundaries to reflect the growth of urban and
suburban areas.
– State legislatures were inclined to preserve existing
CDs if their apportionment of House seats did not
change,
• even though there may have been large population shifts
within the states.
Malapportionment (cont.)
• Does malapportionment of Congressional Districts violate
the Equal Protect Clause of the 14th Amendment?
– Colgrove v. Green (1946): exercising judicial self-restraint, the
Supreme Court declared districting to be a nonjusticiable “political
question.”
– Baker v. Carr (1963): a more activist court overruled the Colgrove v.
Green precedent and declared districting to be justiciable.
– Reynolds v. Simms (1964): the courts ruled that malapportionment
does violate the Equal Protection Clause, which demands “one man,
one vote” (i.e., districts with equal populations).
– Wesberry v. Sanders (1964): the Court applied “one man, one vote”
specifically to Congressional Districts.
Malapportionment (cont.)
• Since the mid-1960, all Congressional (and other)
districts within a state have been required to be almost
precisely equal in population (not number of voters) at
the beginning of each census decade.
– Thus all states with more than one CD must redraw
CDs boundaries each decade, even if (like Maryland
for the past six decades) they have neither gained nor
lost seats.
– In 2004, Texas and Georgia redrew CDs boundaries
(for partisan political reasons) when they were not
required to.
District Boundaries: Gerrymandering
• Gerrymandering: drawing district boundaries (often
creating weird shapes) in order to advance one or other
political interest.
– Political scientists differ on whether gerrymandering
can be wholly avoided, i.e.,
• whether neutral non-political districting criteria can be
identified.
• Gerrymandering has become more pronounced in recent
decades.
– The “one man, one vote” rule means that jurisdictional
(and other) boundaries cannot be followed.
– Technological developments:
• especially computerized census, voter registration, and
election data and other geographical information systems,
• sophisticated computer software for districting.
The Original “Gerrymander”
Some Recent Gerrymanders
Closer to Home
Hypothetical Districting Example
Gerrymandering (cont.)
• Different types of gerrymanders:
– Partisan gerrymandering: draw district boundaries to maximize the
number of seats likely to be controlled by one’s own party, achieving
this by “cracking and packing” the other party’s areas of support, i.e.,
• crack apart areas of support for the other party, and/or
• pack supporters of the other party into as few districts as possible
• [see Mixed Districts diagram].
– Bipartisan gerrymandering: draw district boundaries to create many
safe districts for both parties [Homogeneous Districts diagram].
– Non-partisan gerrymandering: draw district boundaries to protect
incumbents (of both parties), so they can acquire valuable legislative
seniority.
– Racial/ethnic gerrymandering: draw district boundaries to maximize
(or minimize) the number of minority (e.g., African-American,
Hispanic, etc.) members likely to be elected.
• Voting Rights Act and “majority minority” districts
• Shaw v. Reno (1993)