Redistricting—the process of drawing legislative boundaries—is back in the news. If you’re like most people, your head may be spinning, unsure of what exactly is happening and why. For those of us who study the law of democracy, though, none of this is especially surprising. In fact, the real question, at least to me, is: what took them so long?
Let me explain.
Before the Supreme Court imposed the principle of “one person, one vote,” legislative districts across the country were wildly malapportioned. Many looked like what Justice Tom Clark once called “a crazy quilt”: population differences so extreme they could not be defended as reasonable or rational. States often went decades without updating their district lines, and under the Court’s old doctrine, redistricting was treated as a political question beyond the reach of federal courts.
Justice Felix Frankfurter captured the old view. The remedy for malapportionment, he insisted, was not litigation but politics—“to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress.” In a later case, he doubled down on this point. “Appeal must be to an informed, civically militant electorate,” he wrote. “In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives.”
Justice Frankfurter lost this fight in 1962. Two years later, in Reynolds v. Sims, the Supreme Court embraced the “one person, one vote” principle, requiring states to draw districts “as nearly of equal population as is practicable.” Crucially, the Court also confronted the timing question: how often must states update their maps to remain constitutional?
The Court explained that it would be reasonable—though not mandatory—for states to redraw their districts after each census. At the same time, the justices were clear that the Constitution did not demand “daily, monthly, annual or biennial reapportionment.” They also declined to suggest that more frequent redistricting would be unconstitutional or even undesirable. What the Court did say, however, was equally important: if states waited too long between redraws, that inaction would “assuredly be constitutionally suspect.”
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Today, however, the conscience of the people’s representatives is being tested not by inaction, but by a new, aggressive challenge: “mid-cycle” redistricting. This practice involves state legislatures redrawing redistricting maps between official census deadlines, while pressured by national officials. This move fundamentally challenges the stability of our electoral system, threatening to replace old political norms with a new, aggressive model of partisan power consolidation. If this new norm takes hold, it is hard to see any limits. Might partisans redistrict any time they see their majority in danger? Might they possibly redistrict after every election?
More perniciously, this aggressive strategy is driven by national political ambitions, not by state officials or the will of their constituents. This couldn’t possibly be what the framers envisioned when they placed these questions of electoral structures in the hands of the states.
