Article I, Section 2, Clause 1 — Composition

ArtI.S2.C1.1 Congressional Districting

A major innovation in constitutional law was the development of a requirement that election districts in each state be structured so that each elected representative represents substantially equal populations. Although this requirement has generally been gleaned from the Equal Protection Clause of the Fourteenth Amendment,¹ in Wesberry v. Sanders,² the Court held that “construed in its historical context, the command of Art. I, § 2, that Representatives be chosen ‘by the People of the several States’ means that as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.”³

Court involvement in this issue developed slowly. In America’s early history, state congressional delegations were generally elected at-large instead of by districts, and even when Congress required single-member districting⁴ and later added a provision for equally populated districts⁵ the relief sought by voters was action by the House refusing to seat Members-elect selected under systems not in compliance with the federal laws.⁶ The first series of cases did not reach the Supreme Court until the states began redistricting through the 1930 Census, and these were resolved without reaching constitutional issues and indeed without resolving the issue whether such voter complaints were justiciable at all.⁷ In the late 1940s and the early 1950s, the Court used the “political question” doctrine to decline to adjudicate districting and apportionment suits, a position it changed in its 1962 decision in Baker v. Carr⁸ and subsequently modified again in its 2019 decision in Rucho v. Common Cause.⁹

For the Court in Wesberry,¹⁰ Justice Hugo Black argued that a reading of the debates of the Constitutional Convention conclusively demonstrated that the Framers had meant, in using the phrase “by the People,” to guarantee equality of representation in the election of Members of the House of Representatives.¹¹ Justice John Marshall Harlan in dissent argued that the statements on which the majority relied had uniformly been in the context of the Great Compromise—Senate representation of the states with Members elected by the state legislatures, House representation according to the population of the states, qualified by the guarantee of at least one Member per state and the counting of slaves as three-fifths of persons—and not at all in the context of intrastate districting. Further, he thought the Convention debates clear to the effect that Article I, § 4, had vested exclusive control over state districting practices in Congress, and that the Court action overrode a congressional decision not to require equally populated districts.¹²

The most important issue, of course, was how strict a standard of equality the Court would adhere to. At first, the Justices seemed inclined to some form of de minimis rule with a requirement that the state present a principled justification for the deviations from equality which any districting plan presented.¹³ But in Kirkpatrick v. Preisler,¹⁴ a sharply divided Court announced the rule that a state must make a “good-faith effort to achieve precise mathematical equality.”¹⁵ Therefore, “[u]nless population variances among congressional districts are shown to have resulted despite such [good-faith] effort [to achieve precise mathematical equality], the state must justify each variance, no matter how small.”¹⁶ The strictness of the test was revealed not only by the phrasing of the test but by the fact that the majority rejected every proffer of a justification which the state had made and which could likely be made. Thus, it was not an adequate justification that deviations resulted from (1) an effort to draw districts to maintain intact areas with distinct economic and social interests,¹⁷ (2) the requirements of legislative compromise,¹⁸ (3) a desire to maintain the integrity of political subdivision lines,¹⁹ (4) the exclusion from total population figures of certain military personnel and students not residents of the areas in which they were found,²⁰ (5) an attempt to compensate for population shifts since the last census,²¹ or (6) an effort to achieve geographical compactness.²²

Illustrating the strictness of the standard, the Court upheld a lower court’s decision to void a Texas congressional districting plan in which the population difference between the most and least populous districts was 19,275 persons and the average deviation from the ideally populated district was 3,421 persons.²³ Adhering to the principle of strict population equality, the Court in a subsequent case refused to find a plan valid because the variations were smaller than the estimated census undercount. Rejecting the plan, the difference in population between the most and least populous districts being 3,674 people, in a state in which the average district population was 526,059 people, the Court opined that, given rapid advances in computer technology, it is now “relatively simple to draw contiguous districts of equal population and at the same time . . . further whatever secondary goals the State has.”²⁴

Although the Supreme Court had suggested for a number of years that claims of unconstitutional partisan gerrymandering might be justiciable,²⁵ it held in Rucho v. Common Cause that such claims were nonjusticiable, saying that there was no “constitutional directive” nor any “legal standards to guide” the Court.²⁶ Quoting an earlier plurality opinion on the issue, the Court said that “neither § 2 nor § 4 of Article I ‘provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.’”²⁷

ArtI.S2.C1.2 Voter Qualifications for House of Representatives Elections

The Framers of the Constitution vested states with authority to determine qualifications for voters—referred to in the Constitution as electors—in congressional elections,¹ subject to the express requirement that a state can prescribe no qualifications other than those the state has stipulated for voters for the more numerous branch of the state legislature.² In Husted v. A. Randolph Inst., the Court stated: “The Constitution gives States the authority to set the qualifications for voting in congressional elections as well as the authority to set the ‘Times, Places and Manner’ to conduct such elections in the absence of contrary congressional direction.”³

State discretion is circumscribed, however, by express constitutional limitations⁴ and judicial decisions interpreting them.⁵ In some cases, Congress has passed legislation to address certain election requirements.⁶ In the Voting Rights Act of 1965,⁷ Congress legislated changes of a limited nature in the literacy laws of some of the states,⁸ and in the Voting Rights Act Amendments of 1970,⁹ Congress successfully lowered the minimum voting age in federal elections¹⁰ and prescribed residency qualifications for presidential elections.¹¹ The Court struck down Congress’s attempt to lower the minimum voting age for state and local elections.¹² These developments limited state discretion granted by the Voter Qualifications Clause of Article I, Section 2, Clause 1, and are more fully dealt with in the treatment of Section 5 of the Fourteenth Amendment.

While the Constitution grants states authority over voter qualifications, voting for Members of the House of Representatives is also governed by other provisions of the Constitution.¹³ For instance, under the Elections Clause set forth at Article I, Section 4, Clause 1, Congress may preempt state laws governing the “Time, Place and Manner” of elections to protect the right to vote for Members of Congress from official¹⁴ or private denial.¹⁵