« “p‘$;é‘%’é"R°rV‘ LC [L1, ”"_'_B 7905 or OLIN Washington University Issue Brief 4..- F‘ .-'_x'zF;« '71,?‘ .//3 M ’,;r"zr'Y7f'_§; ?;'_ raj); ‘L’, E vs 5 « x .2 ‘ ' ~ . - " - '2 -“'-'73” T4‘-A‘ ' h "LE3 f‘: % -I ' ‘ ' ' .3 V‘ J’ g ,\ ii _ xi 3'7‘ '2 {WT}; U V-"~" 5! k’ r. 5 NGRES S|0NA'+ CRXEDSEARCH V Univefsit [ oLV1ri-Acolumbiéz % //II/// /////////////fl//7// /////7///////n/////////////////////4/ SERVICE O10-103940167 CONGRESSIONAL REDISTRICTING: LEGAL FRAMEWORK ISSUE BRIEF NUMBER IB79050 AUTHOR : Seitzinger , Hic h ael V . American Law Division THE LIBRARY OF CONGRESS CONGRESSIONAL RESEARCH SERVICE HAJOR Issmas srsrnn DATE ORIGINATED gggggzg DATE UPDATED Qggggggg FOR ADDITIONAL INEORMATION CALL 287-5700 0922 CRS- 1 IB79050 UPDATE-09/22/80 l§§Q§_2§El!lIlQ! Congressional redistricting refers to the redrawing of the boundaries of congressional districts within a state for the purpose of equality of representation in the U.S. House of Representatives. Because of _the political ramifications which may result from this process, congresional redistricting is an issue of major concern to the Congress as a whole and to Henbers of the House of Representatives in particular. Redistricting is also of considerable concern to all citizens wishing to assure the eguality of their congressional representation. with the approach of the 1980 census, a great deal of legislative and national attention likely will be focused on congressional redistricting. EAQKGRQ!ND-é§2-20LICI.AHéLY5l§ Article I, section 2, clause 3 of the 0.5. Constitution requires that every 10 years a census be taken of the inhabitants of the various states of the United States in order to determine the allocation of Representatives to the states. According to this provision and to section 2 of the Fourteenth Amendment, Representatives are to be apportioned to the states based upon the > information obtained from "counting the whole number of persons in each hate." Each state in any event is to have at least one Representative. Certain federal statutes have been enacted to establish the procedures for conducting the census and for transmitting the decennial census figures to the states. Section 1&1 of title 13 of the U.S. Code requires the Secretary of Commerce to take a decennial census as of the first day of April 1980 and every ten years thereafter. The tabulation of total population by states must be completed within nine months after the census date and reported by the Secretary of Commerce to the President. Another statute (2 0.3.6. 2a(a)) provides that on the first day of the first regular session of Congress held after the completed census date or within one week thereafter, the President must transmit to Congress a statement showing the number of persons in each ’state as ascertained by the decennial census and the nunber of Representatives to which each state is entitled. Within 15 days after the receipt of this statement, the Clerk of the House of Representatives must send to the executive of each state a certificate of the number of Representatives to which the state is entitled (2 U.S.C. 2a(b)). Once the population figures and the number of Representatives to which the state is entitled are transmitted to the state's executive, the state has the duty to redistrict. In most states this duty is carried out by the state legislatures, but it is possible for a state by statute to assign the duty to redistrict to any organization or group of people. Since Article I, section H, clause 1 of the Constitution provides that the state legislature shall regulate congressional elections until such. time as Congress changes the state law, it appears that state jurisdiction over establishing the >undaries for congressional districts would arguably continue so long as wcongress does not pass a congressional redistricting law of its own. Until the state is redistricted in the required manner, the =Representatives to which the state is entitled shall be elected in the following way: (1) if there is no change in the number of Representatives, they shall be elected from the districts then prescribed by state law; (2) if CBS“ 2 IB79050 UPDATE—09/22/80 there is an increase in the number of Representatives, the additional Representative(s) shall be elected from the state at large and the other Representatives from the districts then prescribed by state law; (3) if there is a decrease in the number of Representatflves but the number of districts in the state is equal to the decreased number of Representatives, they shall be elected from the districts then prescribed by state 1aw;.(n) if there is a decrease in the number of Representatives but the number of districs in the state is less than the number of Representatives, the number of Representatives exceeding the number of districts shall be elected from the state at large and the other Representatives from the districts then prescribed by state law; and (5) if there is a decrease in the number of Representatives and the number of districts in the state exceeds the decreased number of Representatives, all of the Representatives shall be elected from the state at large (2 U.S.C. 2a(c)). Federal statutes have in the past set forth certain standards for drawing the boundaries for congressional districts. eThe first such regulation was the 1842 apportionment law, 5 Stat. #91; it required single-member districts of contiguous territory. The districting act following the 1850 census, 9 Stat. 833, did not contain these requirements, but the contiguous territory requirement was reinserted into the 1862 act, 12 Stat. 572. An act passed in 1872, 17 Stat. 28, added the requirement that districts should contain “as nearly as practicable an equal number of inhabitants." The next two apportionment acts, 22 Stat. 5 (1882) and 26 Stat. 735 (1891), repeated these Drovisions, and the 1901 act, 31 Stat. 733, added the requirement that istricts he composed of "compact" territory. The 1911 law, 37 Stat. 13, repeated these requirements, but the next apportionment law, 46 Stat. 21 (1929), omitted all districting standards. Acting under the false assumption that the 1911 standards were still in effect, several courts in 1932 invalidated state congressional districting'laws for failure to comply with the requirement of “practicable” equality of population among districts. In one of these cases, ggmg v. gghag, 1 F.Supp. 1&2 (B.D.Ky. 1932), rev. 287 U.S. 575, the federal district court discussed ccngressional power to ‘regulate districting and referred to §§_pa;tg_§igb9lQ, 100 U.S. 371 (1880), and other cases for the "proposition that section 4 of article 1 vests in Congress the supreme power to regulate the places and manner of electing Representatives in Congress. This power mndoubtedly includes the authority Ito require Congressmen to be elected from. districts of as nearly equal population as practicable and composed of compact and contiguous territory" (1 F.Supp. at 1H5). In 1967 the single-member district requirement.was again iinserted into the law and remains there as 2 D.S.C. 2c. Although there are not at present a great many federal statutes mdelineating the requirements for congressional district boundaries, court cases have set forth standards to assure equality of representation. Baker v. Carr, 369 0.5. 186 (1962), was the first Supreme Court case to hold -that. [federal courts have jurisdiction over voter complaints of unequal districting and apportioning, that the parties had standing to sue, that the issues were justiciable, and that the political question doctrine was inapplicable- In figsbgggy v. gangggs, 376 0.5. 1 (196u), the Court in an opinion by Justice “lack held that districting for congressional seats presents a justiciable ssue and that Article I, section 2 of the Constitution, providing that “the House of Representatives shall be composed of members chosen every second year by the people of the several statesy" means that as nearly as is (practicable one person's vote in a congressional election is to be worth as imuch as another's. A number of later cases were litigated concerning the precise standards CRS- 3 IB79050 UPDATE-09/22/80 which legislatures must use in drawing congressional district boundaries. giggpgtgigg v. gggislgg, 39H U.S. 526, S31 (1969), interpreted Article I, section 2 to permit "only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for iwhich justification is shown.“ Missouri's attempts to justify its districting plan in which the largest district was 3.13% above the mathematical ideal and the smallest district 2.83% below were rejected as either insufficient on the merits or as not proven to have been uniformly applied. The Supreme Court in Ehitg v. ggiggr, 412 U.S. 783 (1973), upheld a decision of a three—judge federal court invalidating a Texas congressional law with its largest district 2.43% above the mathematical ideal and its smallest 1.7% below. The Court in flhitg refused to modify giggpatgigg to permit deviation from population equality. Keeping in mind that congressional districts are not so interwined and freighted with strictly local interests as are state legislative districts and that, as compared with the latter, they are relatively enormous, with each prcentage point of variation representing almost 5000 people, wo are not inclined to disturb giggpgtgigg and gglls (#12 0.5. at 793)- LE§l§.AII E VT jd H.R. 1516 (Leach of Iowa et al.) Provides that each state entitled to more than one Representative in the 99th Congress or any subsequent Congress shall establish a number of districts equal to the number of Representatives to which that state is entitled. Directs the districts to be established as soon as practicable after the latest decennial census, but in no case later than three years. Sets forth the standards for establishing districts in order to insure fair and effective representation in the House of Representatives. Declares that any state legislature may establish by law standards for creating fair and effective districts. Sets forth judicial procedures to insure compliance ‘with this act. Introduced Jan. 25, 1979; referred to Judiciary Committee. Hearings before Subcommittee on monopolies and Commercial Law Nov. 14, 1979. 3.3. 2653 (Hanley et al.) Congressional Districting Act of 1979. Specifies that each state entitled 5to more than one Representative in the 98th or any subsequent Congress shall establish a number of districts equal to the number of Representatives to which that state is entitled. Declares that no district shall differ substantially in population size from another. Requires a five-member redistricting commission to be established in each state which shall conduct public hearings with respect to the boundaries of districts and prepare and »..submit to the Federal Election Commission a. plan for redistricting to be published in the Federal Register. Sets forth judicial procedures to insure onpliance with this act. Authorizes the Federal Election Commission to Tadninister and distribute funds to each state for the purpose of carrying out the provisions of this act. Introduced Mar. 6, 1979; referred to Judiciary .Committee. Hearings before Subcommittee on monopolies and Commercial Law NOV. 1%, 1979. H.R. 7583 (Steed) cns- n 1379050 UPDATE-O9/22/80 Treasury, Postal Service, and General Government Appropriations bill, FY81. The "HcDade Amendment“ to this bill, which may be found in Title III under the section on salaries and expenses for the Office of the White House, would prohibit the President from spending Federal funds for calculating or transmitting to Congress during FY81, or until such time as a FY81 supplemental appropriations bill is passed that does not contain this language, the statement of the number of Representatives to vhich each State is entitled. Reported to House by Committee on Appropriations (H.Rept. 96-1090) June 13, 1980. Passed House Aug. 20, 1980. Reported to Senate from Committee on Appropriations Sept. 17, 1980. S. 596 (Danforth et al.) Congressional Anti-Gerrynandering Act of 1979. Very similar to H.R. 2653 except for requirement that no district shall differ more than 2% in population size from another. Introduced mar. 8, 1979; referred to Governmental Affairs Committee. Hearings held June 21 and July 10, 199. Efiéfilflfié 8.5. Congress. House. Committee on the Judiciary. Subcommittee No. 5. Congressional districting: hearings on H.R. 8953 and related proposals. Hearings, 92d Congress, 1st session. July 21, 22, 29, 1971. Washington, 0.5. Govt. Print. off., 1971. ----- Congressional redistricting. Hearings, 88th Congress, 2d session, on H.R. 699 and others. Mar. 18-19, 196a. Washington, U.S. Govt. Print. Off., 196%. U.S. Congress. House. Committee on the Judiciary. Subcommittee No. 2. Standards for congressional districts (apportionment). Hearings, 86th Congress, 1st session, on H.R. 73 and others. June 2H and Aug. 19, 1959. Washington, U.S. Govt. Print. Off., 1959. B-2QB$§-AE2-§Q!§§§§§lQEAL-2992§§EI§ 0.5. Congress. House. Committee on Post Office and Civil Service. Subcommittee on Census and Statistics. The decennial population census and congressional apportionment. fwashington, U.S. Govt. Print. Off.) 1970. 24 p. (91st Congress, 2d session. House. Report no. 91—131fl) gggouotogx og_EvB§1§ 09/17/B0 - H.R. 7583 reported to Senate from Committee on Appropriations. p 08/20/80 —— H.R. 7583, containing "McDade Amendment," passed House. 11/1h/79 —— Subcommittee on Honopolies and Commercial Law of the House Committee on the Judiciary held hearings on H.R. 1516 and H.R. 2653. CBS’ 5 IE79050 UPDATE-OQ/22/80 07/10/79 -- Hearings on S. 596 held by Committee on Governmental Affairs. ‘ . 06/21/79 —-Hearings on S. 596 held by Senate Committee on Governmental Affairs. 03/03/79 — s. 596 introduced and referred to the Senate Governmental Affairs Committee. 03/06/79 - H.B. 2653 introduced and referred to the House 1 Judiciary Committee. 01/25/79 -- H.B. 1516 introduced and referred to the House Judiciary Committee. . AP.2.I.$.1.Q§AL..B§E§B§.bIQ§-§QQBQ§§ Baker. one naneone vote and ‘political fairness’-or how the Burger court found happiness by rediscoverying ggygglgg v. §ig§. Emory law journal, v..23, 197a: 701. Dixon. Democratic representation: Reapportionment in law and politics. (New York: 1968). The Warren court crusade for the holy grail of ‘one man—one vote.‘ Supreme Court review, 1969: 219. Dixon and McKay. Election districts: Substantial population equality and exceeded expectations. Human rights, v. 1, 1970: 7a. . McKay. Reapportionment: The law and politics of equal representation. new York, 1965. " Polsby, ed. Reapportionment in the 1970's. Berkeley, 1971. Schneckebier. Congressional apportionment. Washington, 19u1., UNIVERSHTY. ST GTQN . LOUIS - MO. T V %