Bench Memos

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Alito and Reapportionment


From the Left, law professor Rick Hasen offers a much more nuanced analysis than Senator Biden recently did concerning Alito’s summary comment from 20 years ago about his views from 35 years ago on Warren Court decisions on reapportionment. Here are some excerpts:

“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.”

“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.… 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.”

“Perhaps [Alito] 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.”


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