One Man, One Vote: Reynolds v. Sims and the Making of a Hyper-Partisan America

Eamon McCarthy Earls^*

“Legislators represent people, not trees or acres.”¹ In 1964, Chief Justice Warren’s proclamation in Reynolds v. Sims required states to have equal populations in electoral districts and inserted the federal judiciary into state electoral decisions like never before. The Reynolds case, taken in combination with the Voting Rights Act a year later, set in motion an unfortunate series of events that resulted in the hyper-partisan and gerrymandered United States of today, where major swings in policy are determined by negligibly small numbers of voters.

The U.S. Supreme Court exercises an awesome power in the area of Constitutional interpretation. Few dispute that its decisions carry great weight. Indeed, many point to landmark decisions that improved the state of American law—or derailed it. Court critics miss an important mistake in the Court’s jurisprudence when they overlook Reynolds v. Sims, and the statutory and technological developments that transformed America for the worse in its aftermath.

In 1964, Reynolds v. Sims cemented the holding in Baker v. Carr, signaling that the federal government could dictate the terms of apportionment to state governments without relying on the comparatively narrow text of the Fifteenth Amendment. Relying on his own real-world experience pushing partisan apportionment in California, as well as a desire to combat racial disparities informed by the Cold War competition with the Soviet Union, Chief Justice Earl Warren steered the Court to this outcome. The case failed to consider the rising tide of computerization and data availability or the second order effects of this decision, and it encouraged Congress to adopt the Voting Rights Act (VRA) of 1965–plus damaging 1982 amendments to the VRA. Thus, the congressional response to the Reynolds decision ushered in a new era of computerized gerrymandering that persists today, which allows miniscule differences in vote totals to determine critical policy decisions.

I. The Origins of Reynolds and Its Aftermath

A. Reynolds and Baker: Decisions in Context

In Reynolds, the Supreme Court heard an appeal and two cross-appeals from a decision of the U.S. District Court for the Middle District of Alabama.² On August 26, 1961, the plaintiffs—residents, taxpayers, and voters in Jefferson County, Alabama—filed a complaint on their own account and on behalf of similarly situated Alabama voters to challenge the apportionment of Alabama’s Legislature.³The suit, brought against various state and party officials involved in elections, challenged a deprivation of rights under the Equal Protection Clause of the Fourteenth Amendment.⁴

The state constitution capped the number of House legislators at 105, unless new counties were created, and guaranteed that every county would have at least one representative.⁵ With the exception of one new county created in 1903 and some minor statutory changes, Alabama retained the same apportionment of state House and Senate seats in 1961 as it had in 1903.⁶The plaintiffs argued that the Legislature had not updated electoral districts since the 1900 census leading to lopsided representation that now greatly disfavored Jefferson County due to population growth.⁷

A three-judge District Court panel convened and groups of voters, taxpayers, and residents from urbanized Jefferson, Mobile, and Etowah counties intervened.⁸ In a coup for the plaintiffs, the Supreme Court issued its ruling in Baker v. Carr on March 26, 1962.⁹ Although the District Court chose not to enjoin the May, 1962, Democratic state convention or the November, 1962, general election, it did decide that based on Baker, the plaintiffs had standing and had a justiciable case.¹⁰ The plaintiffs then amended their complaint, asking the District Court to provisionally reapportion the Alabama Legislature so that the rural stranglehold would be relaxed enough to permit it to reapportion itself.¹¹

Based on this mounting pressure from the District Court, the Alabama Legislature convened an extraordinary session on July 12, 1962, to consider a new apportionment plan that would give each of its sixty-seven counties one seat and distribute the other seats by population using an “equal proportions” method.¹² This “equal proportions” method would determine apportionment until the results of the 1970 Census became available.¹³ As an alternative measure, the Legislature and the Governor adopted the Crawford-Webb Act, set to take effect in 1966 if a state constitutional amendment failed.¹⁴ This act provided thirty-five senate districts on county lines, one House seat for each county, and thirty-nine House seats apportioned by population.¹⁵

Despite these measures, the District Court ruled on July 21, 1962, that the existing apportionment violated the Equal Protection Clause.  Rural Bullock County received one representative per roughly 6,750 persons, while much larger Jefferson County received one representative per roughly 90,000 persons.¹⁶Weighing the state constitutional and statutory changes, the District Court wrote:

This Court has reached the conclusion that neither the “67-Senator Amendment,” nor the “Crawford-Webb Act” meets the necessary constitutional requirements. We find that each of the legislative acts, when considered as a whole, is so obviously discriminatory, arbitrary and irrational that it becomes unnecessary to pursue a detailed development of each of the relevant factors of the [federal constitutional] test.¹⁷

The District Court found the apportionment of senate seats by county particularly invidious, giving thirty-four counties with a combined population of less than Jefferson County a majority of the seats in the Senate.¹⁸ The District Court ordered an immediate reapportionment according to its plan, and Supreme Court Justice Hugo Black refused to block the order.¹⁹

Turning to the appeal, the Supreme Court observed that the Constitution “undeniably” protects the right to vote.²⁰ Previous cases held that the right to vote cannot be outright denied or denied indirectly through ballot stuffing and ballot alteration.²¹Between its decision in Baker and the hearing in Reynolds, the Court had already heard several apportionment cases. In Gray v. Sanders, it struck down Georgia’s county unit system,²² and in Wesberry v. Sanders, it held that constitutional questions about Congressional districting were justiciable.²³ The Court in Wesberry observed:

We do not believe that the Framers of the Constitution intended to permit the same vote-diluting discrimination to be accomplished through the device of districts containing widely varied numbers of inhabitants. To say that a vote is worth more in one district than in another would . . . run counter to our fundamental ideas of democratic government . . . .²⁴

Relying on the Equal Protection Clause, the Court in Reynolds thus concluded that seats in a bicameral state legislature must be apportioned based on population.²⁵ Referring to the two Alabama reapportionment plans, Chief Justice Warren wrote:

[W]e conclude that the deviations from a strict population basis are too egregious to permit us to find that that body, under this proposed plan, was apportioned sufficiently on a population basis so as to permit the arrangement to be constitutionally sustained . . . . While mathematical nicety is not a constitutional requisite, one could hardly conclude that the Alabama House, under the proposed constitutional amendment, had been apportioned sufficiently on a population basis to be sustainable under the requirements of the Equal Protection Clause.²⁶

Warren acknowledged state interests in maintaining political subdivisions but dismissed these concerns as “little more than an open invitation to partisan gerrymandering,” inapplicable in the interconnected America of the 1960s.²⁷ Justice Clark concurred with the opinion, and Justice Stewart concurred in-part, but not all the justices were ready to sign on to Reynolds. Justice Harlan dissented:

Whatever may be thought of this holding as a piece of political ideology—and even on that score the political history and practices of this country from its earliest beginnings leave wide room for debate . . . I think it demonstrable that the Fourteenth Amendment does not impose this political tenet on the States or authorize this Court to do so.²⁸

Chief Justice Warren biographer, Bernard Schwartz, argued in 1983 that Warren had a significant change of heart about redistricting between his time as governor of California and cases like Baker and Reynolds.²⁹ Warren stated in his memoirs that he regarded Baker as the most important case of his tenure as Chief Justice.³⁰ Thus, by implication, Reynolds was a way to cement the Baker decision and expand its holding. Exercising his assigning authority, he helped push the Court toward its ultimate decision in Baker by allowing Justice Brennan to write a broader opinion going to the merits on Equal Protection grounds.³¹ Chief Justice Warren chose not to assign the case to Justice Douglas or Justice Black (the dissenters in the earlier Colegrove v. Green³²case holding apportionment non-justiciable) for fear that would lose Justice Stewart’s vote.³³

In addition to his own distaste for partisan apportionment, informed by his time as governor, Warren likely also pushed for the outcomes in Baker and in Reynolds based on considerations related to the Cold War.³⁴ As early as 1954, close in time to the Brown v. Board of Education decision,³⁵ Warren told Fourth Circuit Court of Appeals judges that “[we] can make our contribution to justice at home and peace in the world,” in the context of deciding civil rights cases.³⁶ The U.S. government readily promoted the Brown decision through Voice of America, and Warren received an ebullient welcome in India later in 1954 when he arrived to speak about the case.³⁷ Legislative initiatives leading up to the Voting Rights Act were trumpeted abroad to promote America’s commitment to “equality before the law,”³⁸ and Warren’s decision was likely influenced by this national policy background.³⁹

As a matter of Constitutional interpretation, did the Supreme Court reach a correct determination in Reynolds? At the time, the Court had to contend with relict de jure racial segregation and the opposition of many Southern states to court-ordered desegregation.⁴⁰ As such, its decision was almost certainly based on the political considerations of the day. In particular, it is surprising that Justice Hugo Black, a noted originalist from Alabama, chose to sign on to the opinion.⁴¹ His decision makes more sense in light of the Court’s holding in Gomillion v. Lightfoot four years earlier.⁴² In Gomillion, the Court rejected a local act of the Alabama Legislature that changed the corporate boundaries of a city from a square to a 28-side polygon to remove all but 4 of its 400 black voters without removing a single white voter.⁴³ Because of Alabama’s bad-faith behavior and resistance to desegregation, the Court seemingly threw caution to the wind in Reynolds and failed to consider the second-order effects of its ruling. Over the long term, Justice Harlan’s reservations proved prescient.

Examining the Constitutional text, the Court’s decision was likely incorrect. The Fifteenth Amendment provides, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude–The Congress shall have the power to enforce this article by appropriate legislation.”⁴⁴ At the time of Reynolds, Congress had not passed any legislation pursuant to the Fifteenth Amendment that could be construed as requiring equal population between electoral districts.⁴⁵ Even if Congress had adopted such legislation, it might have gone beyond the text of the Fifteenth Amendment because unequal population between districts and geographic representation by county does not have a direct connection to race, particularly in a state like Alabama with majority or plurality black counties.⁴⁶

The entire Reynolds decision was premised on the Fourteenth Amendment, even though the Fourteenth Amendment speaks only to equal protection of the laws and not the right to vote.⁴⁷ Together with the Fourteenth and Fifteenth Amendment problems with the Court’s decision, the justices simply ignored Article IV, Section 4 of the Constitution, which guarantees a republican form of government to every state in the Union.⁴⁸The Constitution provides little guidance on what form a republican government should take, leaving that question open for states to decide.⁴⁹ Alabama’s system and similar systems of geographic representation in other states prior to Reynolds closely mirror the system of states and electoral vote allocations of the United States as a whole.

The Court did not explain its insistence on population equality instead of a rational scheme.⁵⁰ Geoffrey R. Stone and David A. Strauss, revisiting the legacy of the Warren Court, speculated that this might have been viewed as easier for the judiciary to manage based on Census data.⁵¹ The authors note, “[I]t remains unresolved whether states can satisfy Reynolds if they make districts equal in the number of people of voting age, or in the number of registered voters, or in the number of people eligible to vote.”⁵²

Under a strict reading of the Constitution, then, the only way for the federal government to interpose itself into state elections to the extent of Baker v. Carr and Reynolds v. Sims would be through a constitutional amendment, or perhaps by legislation enacted under a combination of Section 5 of the Fourteenth Amendment and the Fifteenth Amendment.

Apart from constitutional considerations, eliminating the possibility of geographic districts within a state is also bad policy. The Court reached the correct conclusion in Gomillion where Alabama engaged in patent racial discrimination to exclude black voters.⁵³ Such policies do fail under the Fourteenth Amendment, and in a world without a Reynolds decision, electoral apportionment in this way would probably still be justiciable. Although a system of county districts like Alabama’s does grant significant extra voting power to rural areas, as a practical matter it might also make gerrymandering more difficult. Small populations are likely easier to sway through low-cost campaigning methods like billboards, mailers, and door knocking. Similarly, no state in the country (apart from Vermont and Massachusetts) has a single party that receives the majority of votes in all rural counties, because of the presence of college campuses, Indian reservations, or other rural demographic outliers.⁵⁴

The decision in Reynolds was not just unconstitutional, but it was also bad policy. In Reynolds, the Warren Court set the tone for a string of activist decisions in the areas of race and civil rights that the Burger Court would propound, ultimately weakening the important goals of desegregation and helping to trigger the originalist backlash against the federal judiciary in the late 1970s.⁵⁵

B. The Voting Rights Act and the Federalization of State Apportionment

On August 6, 1965, Congress passed the Voting Rights Act.⁵⁶The next January, the Supreme Court heard a constitutional challenge to the VRA in South Carolina v. Katzenbach, upholding its constitutionality.⁵⁷

Prior to Carr and Reynolds, federal courts viewed apportionment as a non-justiciable state question.⁵⁸ In truth, many states did not follow their own constitutional requirements, but that was a question for state courts.⁵⁹ Justice Frankfurter took the view that federal courts did not belong in that “political thicket,” when the Court refused to intervene on a 1946 apportionment case involving both the largest and smallest Congressional districts in the nation in Illinois.⁶⁰

In the immediate aftermath of Baker and Reynolds, state House, Senate, and Congressional seats became apportioned by population.⁶¹Initial rulings found that Florida and Texas divergences of greater than twenty percent in apportionment were unallowable.⁶² Mirroring its efforts to restrain metropolitan desegregation bussing, the Court reduced these strictures for local and state districts in the early 1970s but kept the requirement for Congressional districts.⁶³

After Baker and Reynolds, the Court next revisited apportionment in 1968 in Avery v. Midland County.⁶⁴ In its holding, the Supreme Court rejected a ruling by the Supreme Court of Texas that factors other than population could be considered for apportionment.⁶⁵

The following year, the Court announced there was effectively no limit to its commitment to “one man, one vote.”⁶⁶ In Kirkpatrick v. Preisler, Justice Brennan, writing for the Court, explained: “We reject Missouri's argument that there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the ‘as nearly as practicable’ standard.”⁶⁷

With its decision in Reynolds, coupled with Baker and the other 1960s apportionment cases, the Supreme Court leant a veneer of constitutional credibility to the intervention of federal courts in state election decisions. The Court’s actions laid the groundwork for the VRA and the quasi-federalization of state elections, straying from traditional notions of federalism and the plain text of the Constitution itself.⁶⁸ The sheer number of papers about the VRA and racial gerrymandering indexed by legal databases such as Westlaw—numbering into the dozens—speaks to the significance of the VRA. Not since the popular sovereignty fights of the Kansas-Nebraska Act⁶⁹have future national election results hinged so much on federal decisions coupled with on-the-ground head counts.

The advent of VRA federalized elections in key ways but was Constitutional in some respects. In its original form, the VRA was constitutional to the extent that it prohibited poll taxes and literacy tests, based upon the Congress’s power to adopt “appropriate legislation” to enforce the Fifteenth Amendment.⁷⁰The preclearance standards that required “covered jurisdictions” to seek approval for any changes to voting or election laws from the Department of Justice were unconstitutional, violating the federal structure and going far beyond the powers provided by the Fifteenth Amendment.⁷¹

The 1982 amendments to the VRA produced an even more Constitutionally flawed version of the statute.⁷² The 1982 amendments built on the already unconstitutional and unevenly applied preclearance provisions, creating a disparate impact standard that effectively required majority-minority districts for black voters.⁷³ Aside from “baking in” race as an element of politics, the amendments required states and the DOJ to boost black vote strength artificially, discriminate against white voters, and discriminate based on religion in violation of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, and the plain text of the Fifteenth Amendment.⁷⁴ The 1986 Thornburg v. Gingles decision held that plaintiffs can bring a VRA Section 2 challenge to apportionment when: (1) a minority group that “is sufficiently large and geographically compact to constitute a majority in a single-member district,” (2) is “able to show that it is politically cohesive,” and (3) “able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority’s preferred candidate.”⁷⁵Under Gingles and subsequent cases, no discriminatory intent is required for federal courts to tip the scales.⁷⁶

While the DOJ set the tone of apportionment, the Court continued to reinforce its precedent in Reynolds. A mere one-percent difference in population between the largest and the smallest Congressional district was enough for a finding that New Jersey had an unconstitutional apportionment plan in Karcher v. Daggett in 1983.⁷⁷

As gerrymandering became a growing concern in the 1990s, the Court ultimately heard a triumvirate of racial gerrymandering cases. In Shaw v. Reno, the Court heard a challenge to reapportionment brought by white North Carolina voters, contesting a racial gerrymander in violation of the Fourteenth Amendment.⁷⁸ U.S. Attorney General Janet Reno had pressured the state to create a second majority‑black district in north‑central North Carolina.⁷⁹ The new district stretched for 160 miles and was little wider than the immediate surrounds of the I-85 highway.⁸⁰ Justice O’Connor, writing for the Court, reasoned that because the district was highly irregular and rationally interpretable only as an attempt to segregate races, the plaintiffs could state a claim under the Equal Protection Clause.⁸¹

In Shaw, the Court did not rule on the racial gerrymandering itself, but the case opened the door to fresh challenges. Two years later, in the 1995 case Miller v. Johnson, the Court decided that a bizarre shape was not necessary to state a racial gerrymandering claim; rather, the question of whether race was “the legislature's dominant and controlling rationale in drawing its district lines,” should be dispositive.⁸²

The third part of the racial gerrymandering triumvirate came in 1996. In Bush v. Vera, white voters challenged three majority-minority districts that were created based on the results of the 1990 census and were approved under VRA Section 5 preclearance to boost representation of minorities in Texas.⁸³ “Our Fourteenth Amendment jurisprudence evinces a commitment to eliminate unnecessary and excessive governmental use and reinforcement of racial stereotypes . . . . We decline to retreat from that commitment today,” wrote Justice O’Connor, reaffirming the reasoning in Shaw.⁸⁴

Reynolds and the VRA likely had an outsized role in creating the current Sixth Party System.⁸⁵ The impact of the VRA in the South is often framed in terms of court battles over specific districts, but there is also a colorable case that the VRA strengthened racial political divides in states like Alabama and Mississippi that lack the influx of new arrivals seen in Florida, Texas, Georgia, and the Carolinas.⁸⁶ There, partisan voting attitudes are remarkably consistent and map very closely to race.⁸⁷ In a system where some races are required to receive districts where they are the majority, racial interest groups live on and solidarity suffers. Taken nationally, this has probably strengthened the Congressional Black Caucus as a voting bloc and weakened left-of-center lower-middle-class and poor white voters, who are often grouped with conservatives to preserve black-majority districts.⁸⁸

II. An Incomplete Reining In of Reynolds

Reynolds remains good case law, and its impacts are still being felt today.⁸⁹ After the disastrous consequences of the federalization of state electoral apportionment, the Supreme Court began to revise its position, beating an incomplete retreat from apportionment battles in the 21st century.

A. Computing and Big Data Compound the Mistakes of Reynolds and the VRA

Justice Harlan recognized that Reynolds augured poorly for the future of American democracy, and his prescience continued.⁹⁰ Writing in 1969, Harlan observed, “absolute equality is perfectly compatible with ‘gerrymandering’ of the worst sort. A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues.”⁹¹

Computerization was still in its infancy at the time of Harlan’s writing, but increasing data availability and sophistication has resulted in data driven apportionment. From early origins in the 1970s and 1980s, computerization became essentially universal in state redistricting by 1991, supplemented with new geographic information systems (GIS) technology.⁹² Ironically, political scientists in the 1960s initially proposed computerization as an antidote to partisan gerrymandering.⁹³Sadly, there is no easy way to remove human involvement in computing.⁹⁴Increasingly affordable GIS technology allowed more consulting companies to begin offering redistricting services by 2001.⁹⁵ Human involvement comes in to balance different criteria. To comply with Reynolds and with the VRA, keeping municipal jurisdictions mostly intact and maintaining relatively compact districts required significant manual intervention into software programs available in the 2000s.⁹⁶

For the most part, states conduct apportionment using the PL94-171 master file of census block race and ethnicity data, together with Census Bureau TIGER (“topographically integrated geographic encoding and referencing”) data.⁹⁷ Most state redistricting authorities “enhance” this data with state voter registration information, and other political data.⁹⁸

As news media and researchers became more aware of computerization in the 2000s, concerns grew that the outcome of elections could essentially be predetermined through careful data analysis. In fact, competitiveness was already in decline by the 1980s, but the number of competitive districts dropped noticeably with widespread computerization in the early 1990s.⁹⁹

Dicta in Miller v. Johnson, a case about racial gerrymandering, mentions “traditional districting principles such as compactness.”¹⁰⁰ There is no actual requirement that states follow these ostensibly traditional principles, and to meet Reynolds and VRA requirements, states have increasingly drawn bizarrely-shaped districts that far surpass the odd shape of Elbridge Gerry’s famed 1790s “Gerrymander.”¹⁰¹ Illinois’s 17th Congressional district, known as the “rabbit on a skateboard” after its 2002 redistricting, was one strange example.¹⁰² Arranged along the Mississippi River, tendrils of the district, only as wide as the highway, extended into the center of Illinois to include portions of Decatur.¹⁰³

Massachusetts is a perfect example of Justice Harlan’s warning come to pass. In the 2020 presidential election, voters cast 32.1% of ballots for Donald Trump.¹⁰⁴ In statewide elections, voters have chosen a Republican as governor fifty-four percent of the time since the 1980s.¹⁰⁵ Yet Republicans are a super-minority in both houses of the Massachusetts Legislature, and the state has no Republican members of Congress, likely due to clever computerized gerrymandering.¹⁰⁶

The triumvirate of racial gerrymandering cases in the 1990s signaled growing discontent among the justices with the Court’s interventions in state apportionment. With these apportionment cases, the Court essentially spoke out both sides of its mouth at once. On one hand, it would be a violation of the VRA—and perhaps the Constitution itself—to have electoral districts that dilute minority representation.¹⁰⁷ Yet simultaneously, carving out majority-minority districts favored by the DOJ for VRA compliance also violated the Equal Protection Clause.¹⁰⁸ The decisions arguably did not go far enough in assessing the Constitutional validity of the VRA itself or the involvement of federal courts in state apportionment decisions.

The Rehnquist Court started a partial retreat from the involvement of federal courts in other cases. United States v. Hays, in 1995, indicated that only residents of a challenged district could bring racial gerrymandering cases.¹⁰⁹Hunt v. Cromartie and Easley v. Cromartie both challenged North Carolina’s 12th Congressional district (subject of Shaw v. Reno), with the Court permitting political rather than racial gerrymandering.¹¹⁰ During the final years of the Rehnquist Court and the early years of the Roberts Court, the Supreme Court waffled on the justiciability of gerrymandering cases. The justices split in Vieth v. Jubelirer¹¹¹ and held that partisan gerrymandering could be justiciable in League of United Latin American Citizens v. Perry.¹¹²

The Roberts Court at last struck down the VRA’s unconstitutional pre-clearance requirements in 2013 by eliminating the enforceability of coverage formulas in Shelby County v. Holder.¹¹³ Subsequently, in 2021, with the Brnovich v. DNC decision, the Court interpreted “totality of the circumstances” language in Section 2 of the VRA, opening the possibility of voting rules with some disparate impact.¹¹⁴

Some states, faced with the continued fallout of sophisticated gerrymandering after Reynolds, adopted independent redistricting commissions, often by ballot initiative.¹¹⁵ These commissions enjoy a superficial appeal, but are almost always unconstitutional under the U.S. Constitution, and often under state constitutions as well, because Article I textually assigns redistricting to state legislatures.¹¹⁶ Independent redistricting commissions also raise non-delegation questions at the state level, concerns about who gets appointed, and their removability.¹¹⁷ In a five-to-four decision, the Supreme Court upheld Arizona’s independent redistricting committee in 2015.¹¹⁸ Chief Justice Roberts wrote:

The people of Arizona have concerns about the process of congressional redistricting in their State. For better or worse, the Elections Clause of the Constitution does not allow them to address those concerns by displacing their legislature. But it does allow them to seek relief from Congress, which can make or alter the regulations prescribed by the legislature.¹¹⁹

Perhaps the most remarkable indirect challenge to Reynolds came in 2019. In Rucho v. Common Cause, the Supreme Court heard a partisan voting challenge by voters in North Carolina and Maryland.¹²⁰The Court recognized that both districts were drawn with partisan considerations in-mind, each favoring a different party.¹²¹ Referring to Reynolds indirectly, the Court observed, “In two areas—one-person, one-vote and racial gerrymandering—our cases have held that there is a role for the courts with respect to at least some issues that could arise from a State’s drawing of congressional districts.”¹²²Revisiting the history of the Constitution’s Elections Clause, the Court held that partisan gerrymandering is not a justiciable question for federal courts, overruling the district court in North Carolina that found partisan gerrymandering diluted the voting strength of Democrats in violation of the Equal Protection Clause.¹²³

Justice Kagan delivered a blistering dissent, joined by the Court’s liberal wing: Justices Ginsburg, Breyer, and Sotomayor.¹²⁴ Kagan’s dissent criticized the majority for ignoring judicially manageable standards to prevent partisan gerrymandering, yet simultaneously laid out facts that would support the negative impact of Reynolds in combination with computerized redistricting, citing the near elimination of Republican Congressional districts in Maryland after 2000.¹²⁵ Justice Kagan explained:

[B]ig data and modern technology—of just the kind that the mapmakers in North Carolina and Maryland used—make today’s gerrymandering altogether different from the crude linedrawing of the past. . . The effect is to make gerrymanders far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides. These are not your grandfather’s—let alone the Framers’—gerrymanders.¹²⁶

For now, Reynolds survives, along with the VRA. In practice, although Supreme Court precedent still formally forecloses most deviations from exactly equal population, district courts and circuit courts have themselves become increasingly reluctant to enforce Reynolds. The U.S. District Court for the Western District of Texas, in League of United Latin American Citizens v. Edwards Aquifer Authority, ruled that the apportionment of votes in a special district based on sub-regional water interests was rationally related to a statute’s objectives.¹²⁷

Gerrymandering—particularly with computers—has serious flaws for representation and political competition. However, direct federal intervention in state elections does nothing to remedy the problem and can create national blocs that undermine state-level representation and interest group coalition formation.

Major partisan battles about voting, mail-in ballots, voter registration, and redistricting are a defining characteristic of national and state politics in the 2020s. The 2023 term witnessed two major electoral apportionment cases. In Moore v. Harper,  the Supreme Court issued a rare grant of a writ of certiorari on a state court case arising from the North Carolina Supreme Court.¹²⁸ The North Carolina legislature argued for the independent state legislature theory and contended it is textually assigned redistricting authority under both the U.S. Constitution and the North Carolina Constitution, thereby limiting judicial review of its apportionment decisions.¹²⁹ Although the Court rejected the independent state legislature theory, it effectively adopted a new canon of enforcing state election laws.¹³⁰

Despite his restraint in Rucho v. Common Cause, holding that race-based affirmative schemes in university admissions violate the Equal Protection Clause of the Fourteenth Amendment,¹³¹ Chief Justice Roberts wrote a majority opinion for the Court in Allen v. Milligan that was nearly as destructive and atextual as Reynolds.¹³² Together with Justices Sotomayor, Kagan, and Jackson, Roberts reiterated the standard from Thornburg v. Gingles to mandate majority-minority electoral districts exclusively for black voters in complete contravention of the Fifteenth Amendment’s textual prohibition on racial discrimination in voting.¹³³Whether the case represents a majority opinion or not is uncertain, given that Justice Kavanaugh concurred only in parts of it.¹³⁴

So far, Reynolds has attracted only limited attention from Constitutional advocacy organizations, in part because these other electoral conflicts are viewed as more pressing and immediately justiciable.¹³⁵ Going forward, states may choose to test the bounds of Reynolds in their redistricting initiatives. Boldest of all would be a state simply choosing to defy Reynolds outright and, by statute or a state constitutional amendment, implementing a geographically apportioned state senate, with representation by county or a similar “fixed” geographic unit that resists regular reapportionment. If the Court follows Rucho, state legislatures might have greater latitude to redistrict as they see fit, moving away from Reynolds. Similarly, if the Supreme Court is serious about its emerging canon of enforcing state constitutional law outlined in Harper, many states already require redistricting that comports with traditional boundaries like towns and counties, hueing closer to the world before Reynolds.¹³⁶ With the Supreme Court more originalist than in past decades and simultaneously more reticent to engage in redistricting feuds, yet periodically activist as with Roberts’s contradictory opinion in Milligan, the future of Reynolds is now uncertain.

Conclusion

In its fateful decision in Reynolds v. Sims, the Supreme Court chose to compound the mistaken reasoning from cases like Baker v. Carr, unconstitutionally misinterpreting the Fourteenth Amendment and inserting federal courts into state electoral apportionment. Chief Justice Warren mistakenly allowed his own distaste for partisan gerrymandering and desire to achieve desegregation as part of the American Cold War initiative toward racial equality to cloud his judgment, and directed the Court towards a near majority in Reynolds. Justice Harlan’s skepticism about the ruling proved to be prescient. Taken in combination with the passage of the Voting Rights Act and the advent of computerized redistricting, this holding created a hyper-partisan, gerrymandered American political landscape where major policy decisions come down to negligibly small vote totals, and single parties dominate the politics of many states.

The Supreme Court has only slowly recognized its mistake and has begun to execute an incomplete withdrawal from state electoral apportionment. In decisions throughout the 2000s, 2010s, and 2020s, it has blunted the effect of the VRA, has reduced the justiciability of state electoral apportionment claims, yet has propounded an atextual interpretation of the Fifteenth Amendment. Ultimately, these decisions have permitted forms of racial discrimination in electoral apportionment to persist, all while leaving the faulty reasoning of Reynolds v. Sims intact.

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* Eamon McCarthy Earls currently serves as a First Amendment, labor and employment, and complex civil litigation attorney. Previously he served as a Town Councilor for the Town of Franklin, Massachusetts and Vice-Chair of the Massachusetts Municipal Councillors Association. Eamon received his Juris Doctor from George Mason University, as well as a B.S. in Geology and B.A. in History from University of Massachusetts-Amherst. He writes regularly in the areas of law, history, foreign affairs, and public policy.

1 Reynolds v. Sims, 377 U.S. 533, 562 (1964).

2 Id. at 536.

3 Id. at 537.

4 Id. Plaintiffs also claimed deprivation of rights under the Alabama Constitution, which had apportioned Senators to counties without regard for population, analogous to the Federal Constitution. Ala. Const. of 1875, art. IX, § 200 (1901).

5 Reynolds, 377 U.S. at 538.

6 Id. at 539–40.

7 Id. at 540.

8 Id. at 541–42.

9 Id. at 542 (citing Baker v. Carr, 369 U.S. 186 (1962)) (considering an Equal Protection Clause claim against a state electoral apportionment and holding the claim justiciable).

10 Id.

11 Id. at 543.

12 Id. at 543–44.

13 Id. at 544.

14 Id.

15 Id. at 544–45.

16 Id. at 545–46.

17 Id. at 547.

18 Id.

19 Id. at 553.

20 Id. at 554.

21 Id. at 555.

22 372 U.S. 368, 381 (1963).

23 376 U.S. 1, 16–17 (1963).

24 Id. at 8.

25 Reynolds, 377 U.S. at 569.

26 Id.

27 Id. at 579.

28 Id. at 590.

29 Bernard Schwartz, Super Chief, Earl Warren and His Supreme Court: A Judicial Biography 411 (1983).

30 Id. at 410.

31 Id. at 418.

32 328 U.S. 549, 566, 574 (1946).

33 Schwartz, supra note 29, at 418.

34 Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy 104 (2011).

35 Brown v. Bd. of Educ., 347 U.S. 483 (1954).

36 Dudziak, supra note 34, at 106.

37 Id. at 108–09.

38 Id. at 237.

39 Schwartz, supra note 29, at 410.

40 Dudziak, supra note 34, at 110.

41 See generally Bryan Bennett, Hugo Black, in 1 American Governance (Stephen L. Schechter ed., 2016) Credo Reference (providing an overview of Justice Black’s textualist philosophy).

42 364 U.S. 339, 347 (1960).

43 Id. at 341.

44 U.S. Const. amend. XV.

45 See Gomillion, 364 U.S. at 340 (striking down an Alabama districting statute as violating the fifteenth amendment). If Congress had previously required population equality in apportionment under the 15th Amendment, the Court in Gomillion would’ve relied on that statute under the constitutional avoidance canon. See also infra note 56 and accompanying text (showing the passage of the Voting Rights Act of 1965, which was subsequently applied to cases of racial gerrymandering).

46 See generally Michael L. Clemons, Political Mobilization and Empowerment in the Rural Alabama Black Belt: A Comparative Analysis of Sumter and Greene Counties, 22 J. Afr. Am. Studs. 309, 309 (2018) (addressing nuances surrounding 1970s population and political heterogeneity in selected Alabama counties).

47 See U.S. Const. amend. XIV (containing no references to the words “vote” or “voting”).

48 U.S. Const. art. IV, § 4, cl. 1.

49 Id. (providing no definition to the phrase “Republican Form of Government”).

50 Geoffrey R. Stone & David A. Strauss,Democracy and Equality: The Enduring Constitutional Vision of the Warren Court81 (2020) (“The Court inReynoldsdid not explain why it required population equality instead of simply saying that states had to show that their districting schemes conformed to some rational plan.”).But see Reynolds v. Sims, 377 U.S. 533, 579–80 (1964) (“So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature. But neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation.”).

51 Stone & Strauss, supra note 50, at 81.

52 Id. at 86.

53 Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960).

54 Alice Park et al., An Extremely Detailed Map of the 2020 Election, N.Y. Times, https://www.nytimes.com/interactive/2021/upshot/2020-election-map.html [https://perma.cc/R3XK-W67B].

55 See Keith Whittington, The New Originalism, 2 Geo. J.L. & Pub. Pol’y 599, 601 (2004) (characterizing originalism as a theory rising in critique of the Warren and Burger Courts).

56 Voting Rights Act (1965), National Archives, (Feb. 8, 2022), https://www.archives.gov/milestone-documents/voting-rights-act [https://perma.cc/E3TL-XPFQ].

57 See South Carolina v. Katzenbach, 383 U.S. 301 (1966) (upholding the VRA as constitutional).

58 C. David Peters, The Demise of “One Man, One Vote”: Changes in Legislative Representation in the United States Since Baker v. Carr and Reynolds v. Sims, 3 (Dec. 1977) (Ph.D. dissertation, University of Oklahoma).

59 Id. at 5.

60 Id. at 6 (citing Colegrove v. Green, 328 U.S. 549 (1946)).

61 Id. at 4.

62 Id. at 23 (citing Swann v. Adams, 385 U.S. 440 (1967)).

63 Id. at 4 (citing Abate v. Mundt, 403 U.S. 182 (1971); Mahan v. Howell, 410 U.S. 315 (1973); White v. Weiser, 412 U.S. 783 (1973)).

64 390 U.S. 474, 475–76 (1968).

65 Peters, supra note 58, at 19. In 1970, the Court went even further and applied this standard to the election of junior college trustees. Id. at 19–20.

66 Kirkpatrick v. Preisler, 394 U.S. 526, 530 (1969).

67 Id.

68 Peters, supra note 58, at 3, 8.

69 Kansas-Nebraska Act (1854), National Archives, https://www.archives.gov/
milestone­-documents/kansas-nebraska-act [https://perma.cc/JDC8-UYC9].

70 See Voting Rights Act (1965), supra note 56; see also U.S. Const. amend. XV (“The Congress shall have power to enforce this article by appropriate legislation.”).

71 See Shelby Cnty. v. Holder, 570 U.S. 529, 557 (2013) (striking down §4(b) of the Voting Rights Act as unconstitutional).

72 See S. Rep. No. 97-417, at 2 (1982) (reporting on the 1982 amendments to the VRA establishing a results test for § 2).

73 See generally United States v. Marengo County Comm’n, 731 F.2d 1546 (11th Cir. 1984) (holding commission’s at-large system for elections violated the VRA on a disparate impact standard).

74 Thornburg v. Gingles, 478 U.S. 30, 49–51 (1986).

75 Id. at 50–51.

76 Id.; Chisom v. Roemer, 501 U.S. 380, 403–04 (1991).

77 462 U.S. 725, 727 (1983).

78 509 U.S. 630, 635–36 (1993).

79 Id. at 635.

80 Id. at 636.

81 Id. at 649.

82 515 U.S. 900, 913 (1995).

83 517 U.S. 952, 956–57 (1996).

84 Id. at 986 (O’Connor, J., concurring).

85 See generally Gary W. Cox & Jonathon N. Katz, Elbridge Gerry's Salamander: The Electoral Consequences of the Reapportionment Revolution 106 (2002) (arguing that the 1960s wave of redistricting disproportionately impacted the Republican party).

86 See America Counts Staff, South Region Has the Most States: 16 (and District of Columbia), United States Census Bureau (Aug. 25, 2021), https://www.census.gov/
library/stories/state-by-state/south-region.html [https://perma.cc/K9ME-S8YS] (showing large increases in population for those states compared to Alabama and Mississippi).

87 Steve Kornacki, The "redneck-blackneck" politics of the Deep South, Salon (Aug. 24, 2011, 7:27 PM), https://www.salon.com/2011/08/24/race_deep_south/ [https://perma.cc/9YE5-DW3U].

88 See generally Majority-minority districts, Ballotpedia (2024), https://ballotpedia
.org/Majority-minority-districts [https://perma.cc/A9CM-KHMS] (curating a professional compendium of current majority-minority districts, with high-level arguments for and against their use, from both partisan and non-partisan viewpoints).

89 See Gill v. Whitford, 585 U.S. 48, 67 (2018) (denying plaintiffs’ request for new statewide judge-drafted maps by distinguishing the case from the circumstances present in Reynolds).

90 Micah Altman et al., Pushbutton Gerrymanders? How Computing Has Changed Redistricting, in Party Lines: Competition, Partisanship, and Congressional Districting 51, 51 (Thomas E. Mann & Bruce Cain eds., 2005).

91 Wells v. Rockefeller, 394 U.S. 542, 551 (1969).

92 Altman et al., supra note 90, at 52–53.

93 Id. at 53.

94 See id. Idaho, New Hampshire, New Jersey, and Vermont were the last states to use computerization in reapportionment in the 1990s. Id.

95 Id.

96 See id. at 54–55.

97 Id. at 56.

98 Id.

99 Id. at 58.

100 515 U.S. 900, 919 (1995).

101 Id. at 912–13 (clarifying that Shaw did not stand for the proposition that a district’s shape can give rise to an equal protection claim).

102 Altman et al., supra note 90, at 59.

103 Id.

104 Election Results Archive, 2020 Presidential Election, Sec’y Commonwealth Mass., https://electionstats.state.ma.us/elections/search/year_from:2020/year_to:2020/office
_id:1/stage:General [perma.cc/J97Z-4UZT].

105 Election Results Archive, 1982–2022 Gubernatorial General Elections, Sec’y Commonwealth Mass., https://electionstats.state.ma.us/elections/search/year_from
:1982/year_to:2022/office_id:3 [perma.cc/HP4J-45LS] (showing Republican victories in six out of eleven gubernatorial elections since 1982 via an official state database).

106 Massachusetts General Court, Ballotpedia (2022), https://ballotpedia.org/
Massachusetts_General_Court [perma.cc/A8PJ-8G5M] (showing Republicans holding just 4 out of 40 seats in the senate and 25 out of 160 seats in the house of representatives).

107 Wesberry v. Sanders, 376 U.S. 1, 8 (1963).

108 See supra notes 78–82 and accompanying text (discussing this exact scenario in the context of Shaw v. Reno).

109 515 U.S. 737, 739 (1995).

110 Hunt v. Cromartie, 526 U.S. 541, 551 (1999); Easley v. Cromartie, 532 U.S. 234, 248 (2001).

111 541 U.S. 267, 305 (2004) (plurality opinion) (holding political gerrymandering claims are non-justiciable); see also id. at 306 (Kennedy, J., concurring in judgment) (agreeing that the specific claims in the case were non-justiciable, but declining to “foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases”).

112 See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 414 (2006) (“We do not revisit the justiciability holding but do proceed to examine whether appellants' claims offer the Court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution.”).

113 Shelby Cnty. v. Holder, 570 U.S. 529, 550–51 (2013).

114 Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 674 (2021).

115 See Nick Seabrook, One Person, One Vote, 301–09 (2022).

116 U.S. Const. art. I, § 4, cl. 1.

117 See U.S. Const. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States . . . .”); Overview of Nondelegation Doctrine, Constitution Annotated, https://constitution.congress.gov/browse/essay/artI-S1-5-1/ALDE_00000014/ [perma.cc/MDL2-B73V] (providing a broad overview of the purpose of the doctrine in guarding separation of powers).

118 Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 793 (2015).

119 Id. at 849.

120 588 U.S. 684, 689–90 (2019).

121 Id. at 690.

122 Id. at 699 (explaining that Congress passed the Apportionment Act of 1842 requiring single member districts with contiguous territory—contiguity requirements were later eliminated).

123 See id. at 720–21.

124 Id. at 721–22 (Kagan, J., dissenting).

125 See id. at 724–25.

126 Id. at 728–29.

127 313 F. Supp. 3d 735, 749 (W.D. Tex. 2018).

128 Moore v. Harper, 868 S.E.2d 499 (N.C. 2022), aff’d, 600 U.S. 1 (2023).

129 Id. at 534; Moore, 868 S.E.2d at 572 (Newby, C.J., dissenting) (“Both the Federal Constitution and the North Carolina Constitution textually assign redistricting authority to the legislature.”).

130 Moore v. Harper, 600 U.S. 1, 32 (2023) (“[H]istorical practice confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause”).

131 See generally Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023) (holding race-based affirmative action schemes for college admissions violate the Equal Protection Clause of the Fourteenth Amendment).

132 See Allen v. Milligan, 599 U.S. 1, 9 (2023); id. at 45 (Thomas, J., dissenting) (“These cases ‘are yet another installment in the “disastrous misadventure” of this Court’s voting rights jurisprudence.’” (quoting Alabama Legis. Black Caucus v. Alabama, 575 U.S. 254, 294 (2015)).

133 See id. at 17–18, 37, 41–42 (“[T]his Court and the lower federal courts have repeatedly applied the effects test of § 2 [to authorize] race-based redistricting as a remedy for [noncompliant] state districting maps.”).

134 Id. at 42.

135 See, e.g., Alliance Defending Freedom, https://www.adflegal.org/ (last visited Oct. 16, 2024) (listing similar priorities). Conservative-leaning legal advocacy organizations typically focus more on issues like Abortion, Parental Rights, Free Speech, Religious Liberty, and Property Rights – arguably to the detriment of this area of jurisprudence. Id.

136 See, e.g., Mass. Const. amend. art. CI. (“[S]uch districts shall be formed, as nearly as may be, without uniting two counties or parts of two or more counties, two towns or parts of two or more towns, two cities or parts of two or more cities, or a city and a town, or parts of cities and towns, into one district.”).