Abstract

Malapportionment—electoral districts with divergent ratios of people to representation—was ruled to be unconstitutional in a widely venerated series of cases before the Warren Court. Those cases held that a principle of political equality, ‘one person, one vote’, is required by the Constitution. But what is the content of that principle? Many Justices and commentators declare that it is vague, empty, circular, or meaningless. This creates a murder mystery. Malapportionment was killed; but by what, exactly? This Article seeks an answer by focusing on the Court’s commitments about the scope and strictness of one person, one vote: it is a broad (rather than narrow) principle of rough (rather than exact) equality. As such, one person, one vote requires an equal number of people per district and an equal number of votes per voter; and it requires a roughly equal number of people per district. These commitments are attractive in isolation. But, this Article shows, they are objectionable in conjunction: they entail that one person, one vote is too permissive, as it only requires a roughly equal number of votes per voter. If your vote is roughly equal to mine when your district is fractionally more populous than mine, your vote is also roughly equal to mine when I can cast fractionally more votes than you. Since this problem follows inexorably from the Court’s commitments about the scope and strictness of one person, one vote, there are two possible solutions. First, one person, one vote could be broad a principle of exact equality; administrability may then justify underenforcing the principle in distributing voters to districts, but not in distributing votes to voters. Second, one person, one vote could include a narrow principle requiring rough equality in apportionment, as well as a distinct principle requiring exactly equal votes per voter. These solutions have important constitutional implications—including for resolving the population baseline at issue in malapportionment, which remains uncertain after Evenwel v. Abbott. But neither provides an easy way out. Each makes one person, one vote either too restrictive or too permissive. This puzzle brings to light why the operative principle in a venerated series of cases is deeply unclear and unsettled. But it has a special significance beyond that. One person, one vote lies at the heart of America’s constitutional democracy, which is already under considerable threat. On the one hand, if the content of the principle is too restrictive (or too uncertain), then objections to its constitutionality are considerably strengthened. On the other hand, if it is too permissive, then one person, one vote provides little constraint on Vice-President J.D. Vance’s recent proposal to give extra votes to parents, as well as myriad similar policies and procedures that would erode voters’ equality at the ballot box.