March 26, 1962 – The U.S. Supreme Court Decides Baker v. Carr

Baker v. Carr, 369 U.S. 186 (1962), was a landmark United States Supreme Court case which held that federal courts had the power to rule on the constitutionality of reapportionment plans and decisions (that is, changes in the boundaries of voting districts) made by state governments.

This case is one of the most cited in Supreme Court history. Why? There are at least two reasons it has engendered so much attention.

The first is the intrinsic importance of apportionment to the exercise and maintenance of political power. Canny setting of boundaries can establish “safe” districts for the party in power and dilute the concentration of voters for its opponents. The majority party in state politics generally has the power to set the boundaries of voting districts, and has a strong incentive to maximize the number of legislative seats it can control. Almost by definition, minority parties cannot use the legislative process to prevent the majority from setting boundaries that favor the majority. Thus the minority has an incentive to fight the majority’s reapportionment decisions in any way it can, the most effective of which has proved to be constitutional litigation.

The second reason for the frequency of citation of Baker is the controversy over the separation of powers among the branches of government. The courts use the term justiciable to describe matters that are amenable to resolution through the judicial process. The Supreme Court has always held that matters that are purely “political” do not fall within the purview of the judiciary. However, deciding whether a matter is political or justiciable can be a very thorny issue. The Court has striven mightily to articulate the distinctions between those two legal categories, and Baker v. Carr is its seminal effort on this question.

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The defendant in Baker v. Carr unsuccessfully argued that reapportionment of legislative districts is a “political question.” Plaintiff Charles Baker was a Republican who lived in Shelby County, Tennessee, the county in which Memphis is located. (Defendant Joe Carr was named by virtue of his position as Secretary of State for Tennessee.) Baker complained that the Tennessee State Constitution required legislative districts be redrawn every ten years according to the federal census to provide for districts of substantially equal population, but that Tennessee had not in fact redistricted since the census of 1901. By the time of Baker’s lawsuit, the population had shifted such that his district in Shelby County had about ten times as many residents as some of the rural districts. Thus, the votes of rural citizens were worth more than the votes of urban citizens. Baker argued that this discrepancy failed to afford him the “equal protection of the law” required by the Fourteenth Amendment.

Justice Brennan reformulated the applicable doctrine, proposing a six-part test for determining which questions were “political” and thus, not “justiciable.” He stated that cases deemed to be political would evince:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” [Numerals in brackets added for clarity.]

Justice William Brennan

Justice William Brennan

The Court found that none of those characteristics applied to Baker’s complaint. In doing so, it had to distinguish many previous cases in which it had chosen not to rule because of political considerations. Most previous reapportionment cases had unsuccessfully argued that the states’ actions had violated the constitutional clause guaranteeing a “republican form of government.”

But Baker did not rely on the so-called “Guarantee Clause,” which if anything militates against judicial interference with the acts of the legislature. The Court’s majority found Baker’s complaint to be more similar to that in Gomillion v. Lightfoot, 364 U.S. 339 (1960). Gomillion was a Negro who had been a resident of the City of Tuskegee, Alabama until the municipal boundaries were so recast by the State Legislature as to exclude practically all Negroes. He claimed deprivation of the right to vote in municipal elections. The defendant unsuccessfully argued that states enjoyed unrestricted control over municipal boundaries.

In this case, the Court relied on the Fifthteenth Amendment. (It reads in part: “Section. 1. 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 Court applied the Fifteenth Amendment to strike down a redrafting of municipal boundaries which effected a racially discriminatory impairment of voting rights.

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Citing the Gomillion case, Justice Brennan wrote:

Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. . . . The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.”

The Court did not want to get into the business of drawing legislative district boundary lines, a task for which it was ill-suited. Instead, it found that the Fourteenth and Fifteenth Amendments acted as constraints on the acts of the legislature. The legislature was free to draw the boundaries as it wished (one might say, in a political manner), so long as those boundaries did not impinge on rights secured by the Amendments.

After the case was first argued in the Supreme Court, it had to be put over to the next session for re-argument because no clear majority emerged in conference for either side. Justice Charles Evans Whittaker was so troubled by the case that he eventually recused himself, and the arduous decisional process in Baker is often blamed for Whittaker’s subsequent health problems, which led him to resign from the Court.

The opinion was finally handed down nearly a year after it was initially argued. The Court split 6 to 2 in ruling that Baker’s case was justiciable, producing, in addition to the opinion of the Court by Justice Brennan, three concurring opinions and two dissenting opinions.

Justice Tom C. Clark switched his vote at the last minute to a concurrence on the substance of Baker’s claims. Justice Felix Frankfurter, joined by Justice John Marshall Harlan II, dissented vigorously and at length, arguing that the Court had shunted aside history and judicial restraint and violated the separation of powers between legislatures and courts.

Justice Felix Frankfurter

Justice Felix Frankfurter

The large majority in this case can in many ways be attributed to Justice Brennan, who convinced Justice Potter Stewart that the case was a narrow ruling dealing only with plaintiff’s power to challenge the legislature’s failure to act. Brennan also talked down Justices Black and Douglas from their usual absolutist positions in order to achieve a compromise.

You can watch some videos about the case, including one in which Justice Ginsberg discusses the case, here.

Some Notable Updates:

Litigation involving the drawing of voting district boundaries made headlines on March 9, 2009, when the Supreme Court, in an opinion written by Justice Anthony Kennedy, decided Bartlett v. Strickland (No. 07–689), interpreting the Voting Rights Act of 1965. The Act deals with an entirely different kind of diminution of voting power through boundary setting. The Act was designed to make certain that districts containing a substantial number of minority voters would not be carved up and affixed to predominantly white districts, thus making it very difficult to elect minority legislators.

In Bartlett, as a result of migration and other neighborhood changes, a district that had formerly been a geographically compact black majority district now was found to contain less than 36% black voters. The State of North Carolina gerrymandered the boundaries of the district to bring the concentration of black voter up to 39.36%, with the intention of complying with the Act and the expectation that black voters and “cross over” voters could still elect candidates preferred by the black voters. In a 5 to 4 decision, the Court ruled that the protections [of Section 2] of the Act apply only to districts that contain a 50% or greater majority of black voters. In other words, districts with less than a majority of minority voters can be carved up in a diminution of the minority sector’s power. The rationale the Court gave was that, more or less, we are now basically in a “post-racial” society.

Justice Anthony Kennedy

Justice Anthony Kennedy

The issue in Bartlett was substantially different from the issue in Baker. In fact, the Court in Bartlett does not even cite the Baker case. Baker was a constitutional case in which the plaintiff claimed that his voting power was diluted because he was in a very populous district that elected the same number of legislators (one) as far less populous districts. In Bartlett, no constitutional rights were allegedly violated. Instead, the issue was one of statutory construction.

North Carolina’s redistricting again went to the courts in Harris v. McCrory, (Case No. 1:13-cv-949). On February 5, 2016 a 3-judge U.S. District Court issued an opinion written by U.S. Court of Appeals Judge Roger L. Gregory, a Clinton appointee, finding that North Carolina’s U.S. House district boundaries for the First and Twelfth Districts violated the Fourteenth Amendment. According to Judge Gregory’s opinion, the state’s mapmaker — a redistricting expert “who served as redistricting coordinator for the Republican National Committee for the 1990, 2000, and 2010 redistricting cycles” — intentionally packed black voters into these two districts, thereby diminishing the impact of the African-American vote in other parts of the state.

North Carolina’s 12th Congressional District

North Carolina’s 12th Congressional District

Additional cases have followed, including two from Arizona. On June 29, 2015 the Court also ruled on an Arizona redistricting case in Arizona State Legislature v. Arizona Independent Redistricting Commission et al., when a 5-4 decision found that voters concerned that partisan gerrymandering is creating unfair elections are entitled to take reapportionment away from state legislatures.

On April 20, 2016, the Supreme Court ruled unanimously in Harris et al. v. Arizona Independent Redistricting Commission et al. that an independent redistricting commission in Arizona did not improperly favor Democrats when drawing the state’s legislative districts.

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