Signposts: New Directions in Southern Legal History

The Southern Roots of the Reapportionment Revolution

393 In July 1961, only thirteen states had constitutional or statutory rules requiring the apportionment of the upper houses of their legislatures to be based on population alone; for the lower houses, the number stood at just twelve. An additional seven states mandated that their upper houses take population figures into account but allowed for “minor” variations based on other factors—there were only four additional corresponding provisions for the lower houses. All other states based their apportionment schemes on geographic factors such as county lines or town and regional groupings, used other nonnumerical standards such as taxes paid, or placed specific proportional limitations on the amount of representation that any one town, county, or region could receive no matter what its population. In actuality, the situation was even more inequitable than suggested by a review of the laws on the books. Most states using numerical reapportionment rules allowed significant population disparities between legislative districts—as much as 25 percent or more.Worse yet, the failure of many of those states using numerical apportionment to regularly reapportion their seats (in some states, the legislature had not redrawn its legislative boundaries in fifty years or more) meant that variations among districts had grown over time. The result was a near-universal system of disproportionate legislative apportionment in the United States, with some districts overrepresented and others underrepresented. In some states, the disparity in apportionment was extreme, with a mere 20 percent or less of the state population electing a majority of that state’s legislators. In other states, closer to 50 percent of a given state’s population elected a majority of the legislators, and in The Southern Roots of the Reapportionment Revolution Charles L. Zelden 394 Charles L. Zelden a few states a slim majority of the electorate had a say in electing the majority of seats in the legislature. Yet no state had anything close to true numerical equivalence between legislative districts based on population. This malapportionment dilemma pitted the nation’s growing urban and suburban centers against its declining rural sectors. Frustrated by the relative lack of political power that their numbers should have brought them, urban reformers had waged an ongoing campaign since the start of the twentieth century to force the redistribution of legislative seats to approximate more closely the population realities then in force. Overall, their efforts proved fruitless. Most paths to reapportionment, constitutional or statutory, required the consent and active support of the existing legislative bodies. Not surprisingly, these bodies—chosen under the existing system of unrepresentative apportionment—proved unwilling to support changes that would have produced radical transformation of their membership (and cost many sitting legislators their seats). Efforts to force change through the courts proved equally fruitless. State judges often were willing to address the issue and even on occasion to invalidate inappropriate apportionment plans, but they lacked the will or the power to force real change on recalcitrant legislatures. Federal judges—even in those instances where they acknowledged that a violation of the spirit of the Fourteenth Amendment had occurred—generally avoided the issue by invoking the “political question” doctrine, which forbade federal courts from ruling on questions best left to the “political” branches of government. This impasse began to erode in 1962, when the U.S. Supreme Court held in Baker v. Carr that the federal courts had a role in resolving the problem of legislative apportionment. “The mere fact that the suit seeks protection of a political right,” explained Justice William J. Brennan Jr. for the majority, “does not mean it presents a political question.” If anything, “the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision.” Over the next three years, a series of rulings by the Court built on the foundation that the justices laid in Baker; Gray v. Sanders (1963), Wesberry v. Sanders (1964), and Reynolds v. Sims (1964) each held that the Constitution demanded the application of a numerical standard for apportionment— generally expressed as one person, one vote. “Legislators represent people, not trees or acres,” explained Chief Justice Earl Warren for the majority in Reynolds. “As long as ours is a representative form of government, and our Southern Roots of Reapportionment 395 legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a...