Article I, Section 2

Though the substance of Article I, Section 2 was among the most controversial subjects at the Constitutional Convention, for many years thereafter it was among the least controversial parts of the Constitution. In the twentieth century, however, the problem of gross malapportionment of congressional districts (large population disparities between congressional districts) drew increasing public attention and calls for a judicial solution. Nevertheless, for many years, the Supreme Court held that the drawing of congressional districts was a “political question” for which there was no judicial remedy. See e.g., Colegrove v. Green (1946).  

The Supreme Court changed tack in the landmark 1962 decision in Baker v. Carr, holding that questions of legislative reapportionment were justiciable, and in Wesberry v. Sanders (1964) the Court held that “one person, one vote,” was a constitutionally required standard for apportionment. The Court, quoting James Wilson, defined this as “when a given number of citizens, in one part of the state, choose as many representatives, as are chosen by the same number of citizens, in any other part of the state.” Wesberry held that congressional districts should be equal in size “as nearly as is practicable” to “mathematical precision.”

The concept of “one person, one vote” was resoundingly, and appropriately, embraced by the American public in the wake of Wesberry and other decisions. However, while the concept is simple, it raises a number of questions that have yet to be resolved. For example, in Wesberry and later decisions the Supreme Court uses the terms “voters,” “citizens,” and “population” almost interchangeably. But two districts that have equal population will rarely have equal numbers of “voters,” since many people—notably children, non-citizen immigrants, and in many states, convicted felons—will not be eligible to vote.

Although the Court has usually spoken in terms of equally weighted “votes,” in fact districting since Wesberry has been based on equal population. Thus, “votes” are not equally weighted. For example, after the 2010 census, Texas’s 1st State Senate District had approximately 574,000 eligible voters, while the 27th District had approximately 372,000 eligible voters, even though the districts met the Wesberry standard of near perfect population equality. In Evenwel v. Abbott (2016), plaintiffs sought an order requiring the state to use voting population, rather than total population, for redistricting purposes. The Supreme Court held that the Texas districting plan, relying on equal population, was constitutional.

While the Court’s decision in Evenwel can be readily justified by history and tradition, it does suggest that the Court’s longstanding rhetoric of equal voting power may be misguided. An individual’s vote in Texas’s 1st District clearly is worth less than a vote in a 27th District, in that it has less impact on the outcome of a race.

In Evenwel, the plaintiffs argued that voting population was the required standard; the United States argued that total population was required; and Texas asked the Court to rule that either was permissible, and perhaps others too, such as equal numbers of registered voters. The Court limited its holding to specifying that equal population was a permissible standard for drawing districts. With legislatures demonstrating increased interest in redistricting alternatives, it seems only a matter of time until a state apportions based on the number of eligible voters or some other criteria beyond simple population, and that apportionment is challenged on the basis that total population is the only acceptable measure for apportioning seats. The purpose of the Baker v. Carr line of cases was to prevent gross malapportionment of the type occurring in the mid-twentieth century. Any of the standards given above would serve that function. Given the traditional role reserved in the Constitution for state legislatures to make redistricting decisions, allowing some state flexibility in choosing the exact standard may be appropriate.

The other area of some recent controversy is a quite unrelated one, but one brought to the fore with the impeachment of President Bill Clinton in 1998. Article I, Section 2 gives the House of Representatives the sole power of impeachment, but Article II, Section 4 specifies the criteria for impeachment: “Treason, Bribery, or other high Crimes and Misdemeanors.” During the debate over the impeachment, there was much commentary as to what constituted “high Crimes and Misdemeanors,” and whether this restricted the ability of the House to act.

As a practical matter, it is fair to say that when the House acts to impeach, it decides what the standard is for “High Crimes and Misdemeanors.” The Senate, which has the sole power to try impeachments under Article I, Section 3, then applies its own interpretation of the phrase to the evidence at hand. This is an important reminder, perhaps, that interpretation of the Constitution is not left to the judiciary alone. Each branch has an obligation to interpret the Constitution to the best of its ability, and to act in a manner faithful to that interpretation.

How should the Constitution apply to a country that is very different from the one in which the Framers lived?  It is among the most vexing and persistent questions in American constitutional law, as ongoing controversies over Article I, Section 2 exemplify.

Back in 1787, the United States was much smaller and predominantly agrarian. The norm was that only white, male landowners could vote in state legislative elections—and therefore in U.S. House elections under Article I, Section 2. After the Civil War, African Americans were finally recognized as equal citizens through the enactment of the Fourteenth and Fifteenth Amendments, yet their civil and political rights were brutally suppressed for almost another century. Women too were denied equal citizenship for most of our history, only winning the right to vote when the Nineteenth Amendment was added to the Constitution in 1920. 

Expansion of the franchise is not the only respect in which our democracy has changed since the original Constitution. There has also been a major shift in responsibility over the enforcement of civil and political rights, away from the states and toward the federal government. The Fourteenth, Fifteenth, and Nineteenth Amendments all gave Congress authority to enforce the new rights they conferred. Congress has exercised its authority on numerous occasions, none more important than the Voting Rights Act of 1965, which made the right to vote a reality for southern blacks who had long been excluded from democratic politics.  

The federal courts have played a critical role in fostering a more inclusive democracy as well. In the 1960s, the Supreme Court articulated the “one person, one vote” principle in cases like Wesberry v. Sanders (1964) and Reynolds v. Sims (1964). It also struck down the poll tax in Harper v. Virginia Board of Elections (1966), based on the principle that the right to vote should not depend on one’s wealth or poverty. Other barriers to equal participation and representation were invalidated under the Voting Rights Act. We now take it for granted that race, sex, and economic means are not proper bases for denying or diminishing the vote. 

With the renewed focus on voting rights in this century, new questions regarding the meaning and import of Article I, Section 2 have arisen. Two recent developments illuminate the challenge of applying the Constitution to a world that is very different from the one in which the Framers lived. Both concern the relationship between Article I, Section 2 and another provision of the Constitution. Both arise from the rapidly increasing Latino population, particularly in the U.S. southwest. And both raise questions that the Supreme Court has yet to resolve conclusively.

The first concerns state restrictions on who may register to vote, which many states have adopted over the past decade. One such state is Arizona, a state with a growing Latino population that adopted a law mandating documentary proof of citizenship to register. This state law conflicts with the National Voter Registration Act (NVRA), under which states must “accept and use” a federal registration form that does not require documentation of citizenship. Arizona argued that this federal requirement was impermissible under Article I, Section 2, because it allows states to determine the qualifications for voting in congressional elections.

The Supreme Court rightly rejected this argument in Arizona v. Inter Tribal Council of Arizona (2013).  Justice Scalia’s opinion for the majority surveyed the history of Article I, agreeing that it allows states to set voting qualifications, but holding that Congress has broad power to regulate the manner of conducting congressional elections. Through the NVRA, Congress properly exercised this authority. Although it would raise constitutional doubts for Congress to prevent states from enforcing their voting qualifications, the NVRA imposed no such impediment. 

While correctly decided, Arizona v. Inter Tribal Council is surely not the last word on the uneasy relationship between a state’s power to set qualifications and Congress’s power to regulate congressional election procedures. Arizona and other states have challenged the federal government’s refusal to approve new proof-of-citizenship requirements on the federal registration form. New questions could arise if Congress were to adopt new rules regulating congressional elections, such as a uniform voter identification requirement preempting more stringent state laws. 

The other recent controversy implicating Article I, Section 2 concerns the drawing of state legislative districts. For more than a half-century, the “one person, one vote” rule has required that districts be drawn on an equal population basis. Article I, Section 2 is the textual source of this requirement for congressional elections, while the Equal Protection Clause is its textual source for state legislative elections. Disagreement persists over exactly who should count in assessing whether the requisite population equality exists.

The question of who counts for state legislative redistricting was raised but not fully resolved in Evenwel v. Abbott (2016).  Like every other state, Texas uses total population—including children, non-citizens, and others who are ineligible to vote—to draw its districts. The plaintiffs in Evenwel argued that the Fourteenth Amendment required Texas to equalize eligible voters among districts. The case thus raised the question whether “one person, one vote” is a principle of representational equality or voting equality. 

The Supreme Court unanimously rejected the challenge to Texas’s districting argument, holding that the state was entitled to equalize total population and not eligible voters. The result was not surprising, given the uniform practice of the states. Justice Ginsburg’s opinion for the Court relied on the language and history of Article I, Section 2, which requires that representatives be apportioned among states “according to their respective Numbers.” That includes people who are not eligible to vote. Section 2 of the Fourteenth Amendment retained this requirement, while abolishing the three-fifths clause. “It cannot be,” Justice Ginsburg reasoned, “that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis.” 

The question Evenwel leaves open is whether states are required to equalize total population when drawing state legislative districts—or, alternatively, whether they may leave out non-voters like children, non-citizens, and prisoners. Evenwel holds that states may equalize total population, but does not decide whether they must do so. The issue could arise after the 2020 Census, if Texas or some other state decides to use eligible voters instead of total population to draw its districts. Such a decision would have the effect of weakening the voting strength of Latino communities, which tend to include more people (such as children and non-citizens) who may not vote. Evenwel suggests that “the theory of the Constitution” is that everyone should count but, again, does not definitively resolve this question.

The Arizona and Texas cases reveal the continuing importance of Article I, Section 2 to recent and ongoing controversies over the right to vote. Courts interpreting this provision should be guided by a clear-eyed recognition of how our law and society have developed since the Founding. That includes our greater inclusivity of our democracy, as well as the centrality of federal law in enforcing the right to vote. This isn’t to say that the original meaning and the intent of the Constitution are irrelevant. To the contrary, they are critical touchstones, as the opinions in Arizona v. Inter Tribal Council and Evenwel demonstrate. But to paraphrase Justice Felix Frankfurter, the gloss that our constitutional history has written upon words of the Constitution should also inform their interpretation. That gloss includes the expansion of the right to vote and Congress’s central role in protecting it.