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History Draws a Line on 'One Man, One Vote'

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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On Tuesday, the Supreme Court heard oral arguments on whether states' drawing of legislative districts should be based on total population, as it is now, or voter population, as some conservatives want. The case, Evenwel v. Abbott, raises a fundamental question about who is represented in our democracy. But as so often happens, the oral argument took a turn in the direction of our history with a focus on the drafting of the Constitution.

The key moment came when Justice Elena Kagan asked petitioner William Consovoy what would seem like devastating question: The Constitution requires counting total population when apportioning congressmen, so why should the states have to count voters rather than population?

Consovoy’s answer related to the Constitutional Convention held in Philadelphia in the hot summer of 1787. It’s a bit shocking, so I’ll quote it in full:

Apportionment at the time of Article I's framing was focused on taxation issues, on giving States autonomy with respect to voter qualifications. And there was a real concern. That's why it was a --­­ the great compromise.

What Consovoy was talking about is the so-called “great compromise” that kept the Constitutional Convention from breaking up over a conflict between states with big populations -- mainly Virginia, Pennsylvania and Massachusetts -- and the coalition of smaller states that included New Jersey, Connecticut, Delaware and Maryland. The core of the compromise was that delegates to the House of Representatives would be based on a state’s population (with blacks counting as three-fifths of whites), while states would each have two senators regardless of size.

So how was Consovoy’s answer relevant? As he amplified it later, he was saying that when the convention decided to apportion the House on the basis of population, it wasn't saying anything at all about how states should arrange their own internal districts. Indeed, Congress gave states the power to do their own internal voter apportionment: “There was an issue with suffrage, to be sure. There was an issue with voter qualifications. It was a complex, Federalism­-based, sovereignty compromise that does not apply within a State."

According to this view, the states were allowed to handle their own internal voting procedures as unfairly as they wanted -- “an issue with suffrage,” to be sure.

So is Consovoy correct as a matter of history? Start with his claim that apportionment was “focused on taxation” rather than voting. This is not quite accurate. It's true that the convention debated until very late in the process whether the House should be apportioned based on population or based on a state's wealth. But the compromise squarely recognized that the basis would be population. The key to that compromise was the infamous three-fifths clause, which reconciled Southern states that wanted to count enslaved blacks as full persons with Northern states that didn't want blacks counted at all. On July 13, 1787, three days before the compromise was adopted, the convention voted 9 states to 1 to remove wealth as a permissible measure of population.

With respect to voter qualifications and suffrage, Consovoy is right that the states retained their power to decide. If the framers had been asked who was in control of internal districting, they’d certainly have answered that the states were. (Although free blacks voted in some Northern states, no one thought, for example, that women would be allowed to vote anywhere.)

But controlling who votes isn’t the same thing as choosing a district's composition. On that basis, the Supreme Court in 1964 outlawed malapportioned congressional districts. In a historically detailed opinion, Justice Hugo Black wrote for the court “that those who framed the Constitution meant that, no matter what the mechanics of an election, whether statewide or by districts, it was population which was to be the basis of the House of Representatives.”

Black, a liberal, invented originalism in Supreme Court jurisprudence. He read the sources as making it very clear that the Constitution required a direct link between the apportionment of congressional seats and the states’ allocation of voting districts. His logic should dictate the outcome in the case.

Today, originalism is more widely used by conservatives; indeed, Consovoy clerked for Justice Clarence Thomas, the court’s most consistently originalist justice. But if historical facts are going to be used, they need to be interpreted strictly, not loosely.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net