[Deschler's Precedents, Volume 2, Chapters 7 - 9] [Chapter 8. Elections and Election Campaigns] [A. Apportionment; Voting Districts] [§ 4. Failure of States to Redistrict] [From the U.S. Government Publishing Office, www.gpo.gov] [Page 856-858] CHAPTER 8 Elections and Election Campaigns A. APPORTIONMENT; VOTING DISTRICTS Sec. 4. Failure of States to Redistrict Congressional redistricting is a legislative function for the several states.(3) The failure of a state in this regard may arise either through neglect to pass any new districting legislation after reallocation of House seats or population changes reflected in the census, or through enactment of legislation which does not satisfy the requirements of the Constitution, federal statutes, or state law.(4) --------------------------------------------------------------------------- 3. For discussion of state responsibility for congressional districting, see Sec. Sec. 1, 3, supra. 4. For past and present congressional districting requirements, see Sec. 3, supra. --------------------------------------------------------------------------- Where a state's districting plan is defective, the remedy lies either with Congress or with the courts. Since Congress not only has the [[Page 857]] power to enact federal standards for congressional districts,(5) but also is the sole judge of the elections and returns of its Members,(6) the House has the power to investigate the congressional districting plan of any state and to deny seats to Members from states which have drawn defective district lines or no district lines at all.(7) There appears to be no doubt that Congress has the power to compel a state to redraw its congressional district lines in accordance with existing law.(8) However, the House has declined on at least three occasions to deny seats to Members from states in violation of federal districting statutes.(9) --------------------------------------------------------------------------- 5. See U.S. Const. art. I, Sec. 4, clause 1. For the relationship of that clause to federal districting standards, see Sec. 3, supra. 6. U.S. Const. art. I, Sec. 5, clause 1. 7. However, a court finding that a particular state districting plan is invalid does not cast doubt upon the validity of elections in which Congressmen then serving have been elected, or upon their right to serve out terms for which elected. Grills v Branigin, 284 F Supp 176 (S.D. Ind. 1968), aff'd, 391 U.S. 364 (1969). 8. ``And in Colgrove v. Green, 328 U.S. 549 (1946), no Justice of this court doubted Congress' power [under U.S. Const. art. I, Sec. 4] to rearrange the congressional districts according to population. . . .'' Oregon v Mitchell, 400 U.S. 112, 121 (1970). 9. See 1 Hinds' Precedents Sec. Sec. 310, 313; 6 Cannon's Precedents Sec. 43. --------------------------------------------------------------------------- The federal courts and on some occasions the state courts have taken affirmative action to correct a failure of a state to redistrict.(10) In 1966, the U.S. Supreme Court first allowed a federal district court to itself draw congressional district lines in a state where the existing districting legislation was unconstitutional.(11) On the subject of judicial interference with the traditionally legislative function of congressional districting, the Court has stated: --------------------------------------------------------------------------- 10. See Hearings on Congressional Districting (H.R. 8953 and related proposals), subcommittee No. 5, House Committee on the Judiciary, 92d Cong. 1st Sess., pp. 141-160. Judicial intervention in the area of districting was forecast: ``[T]hat the Constitution casts the right to equal representation in the House in terms of affirmative congressional power should not preclude judicial enforcement of the right in the absence of legislation. Such judicial action is commonplace in other areas.'' Lewis, Legislative Apportionment in the Federal Courts, 71 Harv. L. Rev. 1057, 1074 (1958). Although the courts may review districting, they have no power over the allocation of seats by Congress to the states. See Saunders v Wilkins, 152 F2d 235 (4th Cir. 1945), cert. denied, 328 U.S. 870, rehearing denied, 329 U.S. 825 (1946). 11. Maryland Citizens' Committee for Fair Congressional Districting v Tawes, 253 F Supp 731 (D. Md. 1966), aff'd sub nom, Alton v Tawes, 384 U.S. 315 (1966). --------------------------------------------------------------------------- Legislative reapportionment is primarily a matter for legislative deter [[Page 858]] mination and consideration and judicial relief becomes appropriate only when the legislature fails to reapportion according to Federal constitutional requisites in timely fashion after having had adequate opportunity to do so.(12) --------------------------------------------------------------------------- 12. Dinis v Volpe, 264 F Supp 425 (D. Mass. 1967), aff'd, 389 U.S. 570 (1968) (per curiam). Congressional attempts to restrict the power of the judiciary over congressional districting have not been successful.(13) --------------------------------------------------------------------------- 13. On Nov. 8, 1967, the Senate considered a conference report on H.R. 2508, to require the establishment of compact and contiguous congressional districts, and for other purposes. A portion of the bill, as reported from conference, provided that no state could be required to redistrict prior to the 19th federal decennial census unless the results of a special federal census were available for use therein. See 113 Cong. Rec. 31708, 90th Cong. 1st Sess. The language of the bill and its effect on the power of the courts to compel congressional districting by the states in accordance with the ``one man-one vote'' principle, was extensively debated as to its clarity and constitutionality. For challenges to the constitutionality of the provision, see pp. 31696-31702. For remarks in support of its constitutionality, see pp. 31707, 31708. The Senate rejected the conference report (at p. 31712). --------------------------------------------------------------------------- A federal court may retain jurisdiction of districting matters pending appropriate action by the state legislature.(14) A federal court may postpone election processes to provide more time for redistricting,(15) but has allowed elections to be held under invalid districting where there was no other alternative.(16) --------------------------------------------------------------------------- 14. Grills v Branigin, 284 F Supp 176 (S.D. Ind. 1968), aff'd, 391 U.S. 364 (1969). 15. See Toombs v Fortson, 241 F Supp 65 (N.D. Ga. 1965), aff'd, 384 U.S. 210 (1966) (per curiam); Butterworth v Dempsey, 237 F Supp 302 (D. Conn. 1965). 16. Skolonick v Illinois State Electoral Board, 307 F Supp 698 (N.D. Ill, 1969). See also Legislature v Reinecke. 99 Cal. Rptr. 481, 492 P.2d 385 (1972). --------------------------------------------------------------------------- On several occasions, state courts have ordered congressional districting plans into effect.(17) --------------------------------------------------------------------------- 17. See Legislature v Reinecke, 99 Cal. Rptr. 481, 492 P.2d 385 (1972); People ex rel. Scott v Kerner, 33 Ill. 2d 460, 211 N.E.2d 736 (1965). --------------------------------------------------------------------------- [[Page 859]]