One Person, One Filibuster?
Judge Alito's Controversial Comment on a Supreme Court Voting Rights Case

By RICHARD L. HASEN
Wednesday, Nov. 30, 2005

In 1985, Samuel Alito - now a Supreme Court nominee - made a brief comment criticizing the Supreme Court's "one person, one vote" cases on a job application for a deputy attorney general position in the Reagan Administration.

Alito wrote, "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause and reapportionment [of voting districts]."

In response, Senator Joseph Biden told FOX News that based on the comment, a Senate filibuster of Alito's nomination might be merited. Biden said, "If [Judge Alito] really believes that reapportionment is a questionable decision -- that is, the idea of Baker v. Carr, one man, one vote -- then clearly, clearly, you'll find a lot of people, including me, willing to do whatever they can to keep him off the court. ... That would include a filibuster, if need be."

Is Biden correct? It depends - as Biden himself has noted - on how Judge Alito explains his earlier statement.

As I will explain, certain criticisms of the "one person, one vote" are more legitimate than others.

The Warren Court and the Reapportionment Cases

Prior to the Warren Court's reapportionment cases, the Supreme Court refused to consider claims that malapportioned districts violated the Constitution. In California, for example, rural areas of the state had many more representatives in the state Legislature than did Los Angeles (which at one point had only one representative).

The Court refused to intervene because it saw such issues as political questions that were better left to the state processes themselves, and because it did not see unequal districts as necessarily unconstitutional: After all, the U.S. Senate itself provides two senators for each state regardless of each state's population.

But in the 1960s, the Warren Court changed constitutional law in this area. In a line of cases including Baker v. Carr and Reynolds v. Sims, it made clear that legislatures could no longer favor rural over urban and suburban areas -- and it eventually held that virtually all state and local legislative bodies must be comprised of legislators elected from roughly equal-sized districts.

Many have defended the Supreme Court's one person, one vote cases on grounds that the political process was not self-correcting. Why would legislators from malapportioned districts have any incentive to redistrict themselves out of a job? But the Supreme Court went even further, holding that even malapportionment approved by the people through voter initiative violated the Equal Protection Clause.

Past and Recent Criticisms of "One Person, One Vote"

At the time they were handed down, in the 1960s, the reapportionment decisions evoked hostile and bitter dissents on the Supreme Court from Justices Frankfurter, Harlan, and others. The dissenters pointed out, among other things, that the Warren Court opinions were not compelled by the text or history of the Equal Protection Clause.

Today, however, the "one person, one vote" principle is settled precedent. Not since 1986 has any Supreme Court Justice penned an opinion questioning the principle. (That year, Chief Justice Burger briefly cited to Justice Frankfurter's earlier pronouncements in Burger's concurrence in a partisan gerrymandering case.)

But in academia, it's a different matter: In recent years, academics have reconsidered the "one person," one vote rule, criticizing it from both the left and right.

Some argue that the principle does not go far enough, and that courts really need to intervene more to prevent ills like partisan gerrymanders. For example, they argue that it does no good when a person technically has an equal vote, if he or she has been gerrymandered into a district in which his or her views will always lose.

Others argue that the rather strict mathematical equality required by the Warren Court has had negative consequences such as encouraging partisan gerrymanders, preventing the formation of regional government authorities (like transportation districts), or inadequately protecting minority voting rights. They contend that even if gross disparities of district size cannot be tolerated, smaller disparities ought to be deemed acceptable if they serve other worthy purposes.

Judge Alito's Comment Demands Follow-Up Questioning

In light of all the different criticisms that might be - and have been - made of "one person, one vote," it is hard to know what to make of Judge Alito's 1985 comment. So the Senate ought to ask him a series of follow-up questions to figure that out.

Senators should begin by asking whether Alito still holds that view. Another question (relevant in many contexts besides election law) should be how strong his respect for precedent is: If he does disagree with decisions, how quickly would he vote to overturn them?

Most importantly, Senators should probe whether Alito questions the Court's reasoning, its strict equal population remedy, or both.

Perhaps he agrees that Court intervention was necessary to end the practice of grossly malapportioned districts, but also believes the Court's strict one person, one vote principle went too far in remedying that problem, and that mild deviations from "one person, one vote" might be acceptable.

This view, depending on how Alito expresses it, likely would allay fears of some Senators about whether Alito's views are outside the mainstream on this issue.

But perhaps, as Senator Biden suggests, Judge Alito would prefer to return to the days where state legislatures could restore malapportioned districts--potentially leading to the biggest power grab through redistricting that we likely would see in our lifetimes.

That view is far from the mainstream, and would offer a principled basis for Senators to oppose Judge Alito's confirmation, and perhaps even filibuster his nomination.

Judge Alito's Views on Election Law Deserve Close Scrutiny By the Senate

Election law remains an important part of the Supreme Court's docket. Whether controlled by liberals or conservatives, the Court has been remarkably activist in this area.

Before Baker v. Carr, the Supreme Court decided about 10 election law cases per decade. Since that time, the Court has decided about 60 cases per decade - each, typically, with major ramifications for politics throughout the country.

In the last four decades, the Court has set out rules on everything from campaign finance to gerrymandering to minority voting rights -- even intervening in the 2000 presidential election fight in Florida in Bush v. Gore. And, in recent years, Justice O'Connor, whom Judge Alito might replace, has held the swing vote in the most important of these cases.

For all these reasons, the Senate must press Judge Alito to clarify his views in this area. Judge Alito's views on these cases could be decisive on the Supreme Court, and the consequences for our political system could be enormous.


Richard L. Hasen specializes in Election Law at Loyola Law School, Los Angeles. He writes the Election Law Blog.