2.6.3. The Mid-Atlantic States (1925-1965): The Slow Demise of Legislative Malapportionment

  • Apportionment of legislative seats has been a matter of contention ever since the Declaration of Independence proclaimed that equality is a fundamental American principle.   The U.S. Constitution allocated seats in the House of Representatives based on population but as part of the Constitution’s compromise over slavery Southern states received extra seats based on the non-voting slave population.  Throughout American history, many states apportioned legislative seats based on factors other than population, often to favor rural areas at the expense of cities. 
  • Malapportionment became deeply institutionalized in New York in the mid-19th century, as upstate Republicans sought to maintain control over Democratic-leaning New York City and minimize its legal influence.  Lawmakers enshrined malapportionment in New York’s 1894 constitution by including a detailed schedule of districts that ensured continuing rural dominance.  Pennsylvania and New Jersey institutionalized milder forms of malapportionment.

Key cases:

Butcher v. Bloom – Pennsylvania, 1964 (203 A.2d 556); Jackman v. Bodine – New Jersey, 1964 (205 A.2d 713); In re Orans – New York, 1965 (206 N.E.2d 854); Glinski v. Lomenzo – New York, 1965 (209 N.E.2d 277)
  • In the early 1960s the U.S. Supreme Court administered a near-death blow to malapportionment, declaring that the U.S. Constitution’s equal-protection clause required that all legislative districts be equal in population.  In the mid-Atlantic states, this led to a flurry of litigation and frantic efforts to devise new apportionment plans in time for the next election. 
  • The highest courts of all three states faced the same problem:  if they followed the U.S. Supreme Court’s rulings, they would violate their own state constitutions.  New York’s 1894 constitutional apportionment was still in effect; Pennsylvania’s constitution contained an elaborate apportionment scheme which provided that neither Philadelphia nor any other county could have more than one-sixth of the members of the lower chamber.  Even New Jersey’s more modern 1947 constitution provided that each county, no matter how small, must be allotted at least one senator and representative. 
  • Each court went along reluctantly with the Supreme Court’s rulings, but each made clear that it was not happy about doing so.  The courts tried different solutions.  In Orans and Lomenzo, New York’s highest court decided to postpone the 1964 state election when the legislature was unable to agree quickly on a plan that complied with federal law.  In Butcher, Pennsylvania’s supreme struck down an initial legislative reapportionment effort and urged the legislature to try again.  New Jersey’s court gave the legislature a deadline to call a convention for amending the apportionment clauses of the state constitution and warned that if the legislature did not meet the deadline, it would be forced to come up with its own reapportionment plan for the next election. 
  • Eventually, courts and legislatures made the necessary changes.  Reapportionment has not completely destroyed the art of redistricting in the mid-Atlantic states.  For example, in the early years of reapportionment the New York Senate consistently had a small Republican majority and the Assembly a Democratic majority; leaders in both chambers have tacitly agreed to use redistricting to preserve this new status quo which, except for a few short intervals, has remained  intact to this day. 
“There were sharp contrasts [between colonial East New Jersey and West New Jersey] … which have not disappeared even today. …. This balancing of legislative power between the two divisions was bottomed upon the desire that neither should be able to force its will upon the other by the mere fortuity of numerical superiority – each division … being composed of peoples with differing econ interests, religious affiliations and national origins.  Thus was established the precedent for legislative representation based upon territory as distinguished from population. … The reasons for the protection of minorities against the overpowering and ofttimes hasty and ill-considered actions of the majority continue to have vitality.  - Justice Vincent Haneman (dissenting), in Jackman

Map showing the eight districts of the New York state senate (1836) - courtesy New York Public Library

[T]he [U.S. Supreme] Court completely disregards and discards history, tradition, geography, local interests and local problems, differences in dialects and language, in customs, in ideas and ideals in each State and also in many parts of each State. … [This] will almost inevitably deprive minority groups of a fair and effective representation in legislative halls of their principles, customs, traditions, their particular problems and desired solutions, and the preservation of their cherished way of life.”  - Justice John Bell (concurring), in Butcher

Map showing East and West Jersey (1702) - courtesy New York Public Library