Anthony J. Gaughan, Drake University Law School, has posted Redistricting in the Political Thicket: The Ghosts of Colegrove v. Green, which is forthcoming in the Kentucky Law Journal:
Few election law rulings seem more outdated than Colegrove v. Green. In the notorious 1946 case, the U.S. Supreme Court turned aside a Constitutional challenge to Illinois’s ancient congressional districts. The plaintiffs asserted that Illinois’s extreme malapportionment—the state’s largest Congressional district had 914,053 people whereas its smallest had only 112,116 —violated their rights under the U.S. Constitution, the Illinois Constitution, and the Northwest Ordinance of 1787. Despite the farcically unequal districts, the Supreme Court ruled that the plaintiffs’ malapportionment claims raised a non-justiciable political question. In a famous quip, Justice Felix Frankfurter directed judges to steer clear of redistricting battles, warning that “[c]ourts ought not to enter this political thicket.”
In the decades that followed, courts eventually ignored Frankfurter’s advice. In a series of cases in the 1960s, the Supreme Court adopted a One Person, One Vote rule for apportionment cases arising under the Equal Protection Clause. Contrary to Frankfurter’s assertion, courts found it quite easy to adopt judicially manageable standards for adjudicating claims arising from malapportioned districts. It turned out that the application of elementary math principles—i.e. total state population divided by total number of districts—enabled courts to avoid many of the political thickets that Frankfurter so feared. The One Person, One Vote rule is now a cornerstone of American Constitutional law. Not surprisingly, therefore, Colegrove v. Green is remembered as little more than a musty relic of a bygone jurisprudence.
However, this article contends that Colegrove deserves a second look. To be sure, Justice Frankfurter’s majority opinion has little to recommend it. His exercise of judicial restraint in the face of an extreme, decades-long assault on democratic principles represented a case study in short-sighted jurisprudence. Yet, there is far more to the case than Frankfurter’s myopic and curmudgeonly reasoning. The story of Colegrove involved issues directly pertinent to those faced by courts and litigants in the 2020s. It demonstrated how efforts to modernize redistricting law during a time of tumultuous political and demographic changes face unique challenges. The case thus offers timely insights and rich historical context for our current redistricting controversies. Indeed, to a remarkable extent, the ghosts of Colegrove still walk the halls of the Supreme Court.
The article is organized into three sections. Part I tells the story of Colegrove v. Green. Part II describes how a new generation of justices—informed by new thinking and imbued with confidence in the Supreme Court’s ability to defend democracy--overturned Colegrove. Part III examines how features of the Colegrove case nevertheless continue to plague election law in the 21st century.
--Dan Ernst
