Redistricting and the United States Constitution

Thomas Mann joins Sean O’Brien and Nate Persily on the Diane Rehm Show to examine what the U.S. Constitution says about drawing congressional and legislative districts and how court decisions have further shaped those guidelines.

DIANE REHM: Thanks for joining, us I’m Diane Rehm. The framers of the U.S. Constitution did not use the word district when they outlined how Congressional representatives would be chosen. Article 1, Section 2 of the document states only how to choose the number of lawmakers. Today, the redistricting process has become at times contentious and blatantly partisan. As part of our “Constitution Today” series, we look at what the document says about the process of redistricting and how court cases have furthered shaped those guidelines.

Joining me here in the studio are Sean O’Brien of the Center for the Constitution at James Madison’s Montpelier, Thomas Mann of the Brookings Institution and joining us from Columbia Law School where he is The Beekman Professor of Law and Political Science, is Nate Persily. Throughout the hour, we’ll welcome your calls, questions, 800-433-8850. Send us your e-mail to [email protected]. Good morning, gentlemen. Thank you for joining me.

SEAN O’BRIEN: Good morning.

THOMAS MANN: Good morning.

NATE PERSILY: Good morning.

REHM: Sean O’Brien, let me start with you. What does the constitution actually say about legislative districts and I’m glad that you have a copy of the constitution right in front of you, good. Nate Persily has his as well.

O’BRIEN: As you indicated in the opening it’s very, very vague, as are many things in the constitution, and we have to figure out how to implement what this constitution says. Really what they did initially was set up the initial representation and came up with the number of representatives that each state would have before they knew how many people lived there and set up a minimum number of representatives that each state could have and the maximum size, which they could be.

And so they basically — it just says here the actual enumeration shall be made within three years after the first meeting of the Congress of the United States and within every subsequent term of 10 years, in a manner as they shall by law direct. The number of representatives shall not exceed one for every 30,000, but each state shall have at least one representative. And until such enumeration shall be made and then they lay out which states get how many members of Congress in the first Congress.

And that gets into an interesting story that Tom and I were talking about out in the lobby, but again, it’s pretty open and that’s why we have a lot of opportunities to continue to talk about this issue right now.

REHM: All right. And turning to you, Nate Persily, when did the word district first come into play?

PERSILY: Well, for hundreds of years now, we’ve had districts, but as Sean said, there’s no constitutional requirement that we have it. We have since the Supreme Court decisions in the 1960s abided by a rule of population equality for congressional and other districts and are drawn but Congress then has passed statutes, various apportionment statutes over time that have required single member districts and the one that currently exists today is about 90 years old.

REHM: Ninety years old? Tom Mann.

MANN: It’s important to remember the other provision of the constitution that is relevant here is Article 1, Section 4, the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. So it was the states that were given the authority to decide how those representatives would be elected. They could have set up a proportional representation system, everyone running at large statewide in which case redistricting would never have arisen as a problem.

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