Judging Electoral Districts in America, Canada, and Australia Erin Daly

Boston College International and Comparative Law Review Volume 21 | Issue 2 Article 2 8-1-1998 Idealists, Pragmatists, and Textualists: Judging Electoral Districts in America, Canada, and Australia Erin Daly Follow this and additional works at: http://lawdigitalcommons.bc.edu/iclr Part of the Comparative and Foreign Law Commons, and the Election Law Commons Recommended Citation Erin Daly, Idealists, Pragmatists, and Textualists: Judging Electoral Districts in America, Canada, and Australia , 21 B.C. Int'l & Comp. L. Rev. 261 (1998), http://lawdigitalcommons.bc.edu/iclr/vol21/iss2/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College International and Comparative Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. Idealists, Pragmatists, and Textualists: Judging Electoral Districts in America, Canada, and Australia Erin Daly* I. INTRODUCTION In the 1960s, the United States Supreme Court entered the political thicket of voting rights cases in which plaintiffs challenged apportion ment and districting plans. In the 1970s, the Australian High Court heard its first districting case, and in the 1980s, the Canadian courts entered the fray. This decade has seen renewed and intensified interest in voting rights as the highest courts of all three countries have issued landmark decisions in this area. With a surprising degree of consensus, the Canadian and Australian courts have held that their respective Constitutions do not guarantee that electoral districts must be of equal size; in other words, they rejected the one person, one vote standard that has been a staple of American law for nearly 35 years. 1 A pro foundly divided American Supreme Court, by contrast, has held that, in addition to this equipopulosity requirement, the U.S. Constitution also requires that electoral districts be drawn without predominant attention to the race ofvoters.2 Although there is some common ground among these sets of cases, they ultimately exemplifY three very different jurisprudential attitudes towards redistricting questions,3 and towards constitutional questions * Associate Professor of Law, Widener University School of Law. BA., Wesleyan University (1983); J.D., University of Michigan (1989). My thanks to David Williamson, Tony Blackshield, Robert Lipkin, and Laura Ray. I am also particularly grateful to Patrick Kelly and to Widener University's International Law Institute in Sydney, 1996. I See Reference re: Electoral Boundaries Commission Act [1991] 78 D.L.R. 449; McGinty v. Western Australia (1996) 134 A.L.R. 289. Both cases rejected the requirement of equipopulosity or equipopulous districts of Reynolds v. Sims, 377 U.S. 533 (1964). 2 See Shaw v. Reno, 509 U.S. 630 (1993) (Shaw I), and its progeny: United States v. Hays, 515 U.S. 737 (1995); Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. 1894 (1996) (Shaw II); Bush v. Vera, 517 U.S. 952,116 S. Ct. 1941 (1996); Abrams v.Johnson, 117 S. Ct. 1925 (1997). These cases are collectively known as the Shaw cases. 3 (Re-)apportionment is the process of determining how many people should vote in each 261 262 BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAw REVIEW [Vol. XXI, No.2 generally. In fact, the different results in these cases are largely attrib utable to the jurisprudential choices each Court has made. In these cases, the Canadian Court has taken a pragmatist stance, while the Australian approach is more textualist; the American redistricting cases may be characterized as idealist. Since no Constitution mandates any particular jurisprudential model, a court adopting one approach is clearly choosing from among available options. Whatever model the court chooses determines (and is determined by) not just its approach to constitutional interpretation, but also the court's perception of its own role in the nation's political system, and its conception of the nation's electoral process. This article will describe the principal redis tricting cases from each country so as to expose the particular para digm that each court has chosen to govern its approach. The article then suggests that, for the redistricting cases that are currently occu pying so much of the courts' time, the pragmatism of the Canadian Supreme Court is preferable to either the American Supreme Court's idealism or the Australian High Court's textualism. The complicated story told by these decisions reveals how the high courts of these three countries approach each other, converge on certain issues, then turn and go their separate ways, then sometimes meet up again. Nonetheless, while the courts of Canada and Australia are acutely aware of each move made by the others, the U.S. Supreme Court plods along, seemingly oblivious to what is going on around it. This indifference to other countries' experiences is not unique to voting rights law,4 even though, as Justice Breyer has recently suggested, "[other countries'] experiences may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem."5 By looking at other countries' resolution of similar issues, district of a particular jurisdiction. (Re-) districting is the process of determining where the lines should be drawn for each district. They are distinct, but related concepts: both are used when "the governors and their political agents ... select their electors." T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines after Shaw v. Reno, 92 MICH. L. REv. 588, 588 (1993). Districting seems to be the broader concept, because it includes head-counting which is a prerequisite to line-drawing; the term "districting" will thus be used to refer both to districting per se and to the combined issues raised in both processes. 4 But see Washington v. Glucksberg, 117 s. Ct. 2258, 2274 (1997), for a rare discussion of another country's experience in a majority opinion. In this case, ChiefJustice Rehnquist referred to Holland's experience with assisted suicide. Even this, however, was a comparison of underlying facts, not constitutional interpretation. In Printz v. United States, 117 S. Ct. 2365, 2377 n.11 (1997), the Court rejected ~e dissent's discussion of European federated republics because "such comparative analysis [is] inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one." 5 Linda Greenhouse, Appealing to the Law's Brooding Spirit, N.Y. TIMES, July 6, 1997, at E4. 1998] JUDGING ELECTORAL DISTRICTS 263 the American courts can learn from their experiences, as other coun tries have learned from ours. It is especially illuminating to study the constitutional traditions of Australia and Canada because in some ways they are so similar to our own, particularly in their underlying values: all three nations, of course, were spawned by Great Britain but unlike her, all three developed written constitutions early on. In all three countries, moreover, the constitutional systems are similar: they are among the few federated republics of the world and in each case separation of powers-particu larly between the judiciary and the political branches-is a salient feature. In addition, in all three countries, representatives to one or both houses of the bicameral federal legislature are chosen by popular election, and the same is true for most state or provincial legislatures. Finally, it is worth noting (although this can only be stated in the most general terms), in all three countries, democratic governance, includ ing equality as an essential component, is fundamental to the nations' political self-consciousness. Despite these basic similarities, each coun try's highest court has reached different conclusions about the degree to which their Constitutions define and guarantee equal voting rights in the context of districting. The keystone in this area was the 1964 American case of Reynolds v. Sims, which propounded the one person, one vote rule.6 While the incontrovertible success of this rule must be acknowledged,7 it has resulted in a complacency of two sorts. As a psychological matter, American pride in the rule has fostered a confidence in home-grown 6 See Reynolds, 377 U.S. at 554-58. 7 This is a descriptive point, not a value judgment. See, e.g., DA..'1IEL HAYS LOWENSTEIN, ELEC TION LAw: CASES AND MATERIALS 102 (1995) (''Though Wesberry and Reynolds were fiercely controversial when they were decided, the one person, one vote standard has become widely accepted in the United States. "); Samuel Issacharoff,Judging Politics: The Elusive Quest Fur Judicial Review of Political Fairness, 71 TEx. L. REv. 1643, 1657 n.72 (and sources cited therein) (noting that "the appeal of individual equality in the political process proved so strong that these decisions did not spark an outcry similar to that arising in response to the Court's forays into the civil rights and criminal justice areas"). This article makes no claim as to whether the Reynolds Court was correct either as a constitutional or as a political matter. See, e.g., Jesse Choper, Consequences of Supreme Court Decisions Upholding Individual Constitutional Rights, 83 MICH. L. REv. 1, 90-91 (1984) (explaining that "in the first half decade after Reynolds v. Sims, despite complying altera tions in virtually every state legislative and congressional district in the nation, the studies undertaken came to conflicting conclusions as to the effect of reapportionment on state policy and the extent to which reapportioned legislatures were more likely than malapportioned ones to expend funds, respond to urban needs and have a competitive political system. Subsequent empirical efforts, however, have vindicated the criticism that those who had earlier discounted the political and policy consequences of reapportionment had failed to prove their case.").

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