To what extent can we provide equality in apportionment? In answering this question, we shall take for granted the beliefs of many judges, scholars, and others that an "equi-populous district" prescription will bring egalitarian results. Therefore, at this time, we assume that this system is the only apportionment system that might achieve equality; it is the most equitable. The Hare system of Proportional Representation, for example, need not be discussed, although its egalitarian properties may be much more considerable than the "equi-populous district" formula. We are making a grand detour around all other possible means of achieving an applied science of equality through the system of apportionment.
In the first place, "the equi-populous district" formula cannot be arithmetically perfect without taking extreme measures in numerical calculations. Submission to the mechanics of a computer is practically demanded if the districts are to be kept within a range of 5 per cent of the average in numbers of persons or voters. To some this resort to a computer may appear to be a demeaning of the electorate.
In the second place, the application of the formula will have wide variations in effects, depending upon whether it is based upon equal numbers of voters, of eligibles, of citizens, or of whole populations. An example can be cited: If the New York State legislature were apportioned into districts of equal number of votes cast after the decision of Baker v. Carr, the status quo of many years would be maintained. In short, the net effect of the enforcing of the formula depends upon a matter that the courts have not decided and cannot logically decide. Or will the courts make bold to say that "equal populations" are more equal than "equal number of eligible voters?" Indeed, many other devices of representative government, contained in the list presented, might be employed by the leaders of a jurisdiction in order to avoid the egalitarian (or, more likely, other) presumed consequences of the formula.
Since the doctrine treats men as numbers, or, at best, as mechanical men obsessed with purely power considerations, some complaint may be offered from a moral point of view. Even if it is enacted into law and fails, as it must, in that precise respect that it aims at–reducing all behavior to a one-to-one cause and effect–it will have harmful effects on the image of man in contemporary society.
Much of the justification of the doctrine is blatantly materialistic and vengeful, whether equality or some other effect is claimed. Advocates frequently assert that their purpose is to bring about reforms that benefits materially one segment, area, party, or faction of a jurisdiction. Interests are obviously involved, all justified in the name of equality, but equality can scarcely be attributed to most of the effects they intend to bring about.
The confusion of the total electoral process caused by the application of the doctrine has been great. The confusion will continue. This effect has little to do with equality. A very rapid, almost revolutionary, change in institutions of government is not to be taken as proof of the establishment of equality among the electorate unless some kind of evidence proves it to be productive of equality.
Legislative processes have been completely reorganized, in a most distressing fashion, in dozens of state legislatures over the past three years and will be in years to come. This cannot be called an equalizing effect of the reapportionment. Inexperienced legislators are replacing experienced ones; this in itself cannot be said to be equality.
The courts, without proof and even against proof, have been drawing district lines without the brake of public opinion. The court processes, so long as they dominate (1962- ?), cannot be said to be equalizing anything but numbers, whereas they can be said meanwhile to be depriving a great many people of the equal protection of the laws. That is, when the law cannot be known and the constitutional authorities are in a state of political crisis, the public can be asserted to be deprived of ordinary rights to determine the forms of government. While the courts proceed, equal protection of the laws is not to be had.
The numerically equal formula of equi-populous districts is supposed by its advocates to produce a situation in which many public welfare matters will be better handled in the laws. This theory is unproved and in some ways disproved. The latest study, by Professor Dye, has rated the fifty states on three different equi-populous district indices of "malapportionment." He has then correlated the degree of malapportionment with the amount of party competition found in each state and with thirty measures of state policy in the areas of education, welfare, and taxation. He has found no significant relation between apportionment and these behaviors, even when the degree of urbanization, industrialization, the income, and the educational level of states are held constant.
Admittedly, city problems are desperate today. But apportionment by equi-populous districts is not indicated as positioning reform forces very well for attacking them. Nor do states whose cities have had the "benefit" of "equi-populous district" apportionment appear to demonstrate better urban welfare policies, better schools, and better urban organization than other states. This author has brought out some facts in this regard in his study of Apportionment and Representative Government. There, for example, it was shown that one of the legal briefs used in the very case of Baker v. Carr with the purpose of exhibiting discrimination in Tennessee (certainly one of the least equi-populous districted states at that time) could have been rebutted by the simple proof that the rural areas, while grouped in less populous districts, were also poorer and presumably therefore received larger school aid on that account. Equality of district populations may end up depriving the poorer sections of some states of the right to equal educational opportunities; is this equal protection of the laws?
Those who have advocated equi-populous districts have for a generation had in mind giving central cities of metropolitan regions a greater voice in state legislatures. Not surprisingly, a number of them have represented labor-union interests. But at least two excellent studies have shown that under past systems of apportionment when city representatives have united in the state legislature, they have obtained what they wanted (the studies referred to were made in Missouri and Illinois several years ago; Indiana and New York studies have shown similar results). Furthermore, the suburban areas have since come to be in a position to make the greatest gains in seats from "equi-populous district" apportionment, since suburbs have grown rapidly and central cities have remained stationary.
This problem could be handled by apportionment of various kinds, but not by rigid "equi-populous district" apportionment. The effect of the formula could be to put the most difficult element in big-city reform—the suburbs—in the saddle of state legislatures. Equality is elusive of aim. Change occurs, but not equality.
Political organizations can be more readily made into large scale political machines in areas of dense and large populations. The realities of politics are that machines destroy equality; they do not create it. If equi-populous districting abets machine growth, it has to diminish equality of power among the voters and people.
The same holds true for the majority principle, which is in essence anti-equality. If equi-populous districting enhances the case of majority rule as against consensual or compromising rule in assemblies, whether by strengthening political parties, or by creating a single large urban bloc, or by increasing an already existing majority of seats, it will tend to diminish equality of power and access to government.
If one race happens to "benefit" (on racial issues) from a given apportionment, and another to be unequally and therefore unjustly treated in a numerical sense, we should have a beginning of an argument for reapportionment by equi-populous districts on grounds of race relations. However, the best available evidence suggests that Negroes in the country as a whole are no more discriminated against than they are specially favored under equi-populous districting. There is presently some concern, for example, in certain areas of the rural South where Negroes are registering rapidly, that redistricting according to the directives of the federal courts will reduce the number of seats that Negroes might otherwise win or influence.
The equi-populous doctrine will have great effect upon many thousands of country boards, town councils, and other local jurisdictions throughout the country. The Supreme Court has not the foggiest notion of what will happen by the magic of its equal numbers formula here. Nor have we, except that a great hullabaloo will take everybody’s mind off other problems here again, confusion, but not equality.
If new districts are drawn, the rate of change in personnel of state legislatures will speed up and thence the rate of change of the political place-holders and patronage appointees. We may expect to see more types from the cities and suburbs. It is hard to see that this brings more equality except in this sense that the chance of a citizen from anywhere in the state to get a state or federal patronage job may increase by some slight degree, say from 15/120,000 to 15/100,000 in a New York City district.
The effects of the method of application (or imposition) of the system of apportionment may be more important than the economic and social effects. It is difficult to dispute the contention that of all methods of apportioning legislatures, the most "equal" method is that produced by a popularly-based assembly, even when it produces a not-so-equi-populous system, because "the method-in-itself" is "equality in operation."
Apportionment by constitutional authorities based on the mass of people seems to be the method most closely related to the doctrine of equality, because it is most nearly equal in itself. When a popular referendum, or the legislature, or an arm of the legislature, or a constitutional assemblage of some kind of representative of a large number of citizens, forms and/or approves an apportionment, the foundations of representative government tend to be preserved.
When the courts apportion, certain kinds of results occur. The logical and political confusion of the courts have some effects that have been dealt with elsewhere. Crowded dockets become even more crowded, and this has an undesirable effect on "equality before the law." But the largest negative effect may occur because a half-dozen appointive judges in Washington and less than this number in every state (also mostly appointive) dispose of the toughest political issues with the flimsiest of constitutional warrant and with little effect on the direct provocation for intervention, but with greater ultimate, negative effect on the separation of powers, federalism, and the rule of law.
On the other hand, when governors and official commissions apportion, a different result ensues. The power of the executive branch of the states (and ultimately of most localities) is enlarged when gubernatorial or executive-designated commissions command the apportioning process. The legislature is diminished in stature, both in power and in the eyes of many voters.
Strictly speaking these last three paragraphs have dealt with effects of the method, not of the apportionment formula. But the court-administered method has become and may remain a continuous feature of the formula’s operation.