Reynolds v. Sims Abroad: a Briton Compares Apportionment Criteria

Abstract

nolds v. Sims and beyond, seemed to have provided American political scientists and legal commentators with native pasture rich enough for many years' grazing. Naturally then, the business they preferred to mind was their own, for there was plenty of it. Now, however, that the American apportionment revolution if such it truly was has passed its flood, perhaps even moved into its conservative phase, a non-American may be allowed to point out, in suitably modest tones, that European legislatures too have their electoral problems, of which apportionment (or at any rate districting) is one; and that these problems, allowing for circumstantial variations, sometimes resemble American problems sufficiently to deserve a little transatlantic comparison. He may even, provided he does not press the similitude too hard or too close, suggest one or two features of European, and particularly British, experience as possibly relevant and fruitful. Take, for instance, the experience of Switzerland. Within forty-eight hours of the U.S. Supreme Court's ruling in Baker, the highest Swiss federal court, the Tribunal Fideral, handed down a judgment whose resemblance to that case was particularly strong. The circumstances were as follows. Article 36 of the Swiss canton of Fribourg's constitution provides simply for proportional representation in electing its parliament, the Grand Conseil. But an electoral law enacted by the latter body in March 1921 required a system of scrutin de liste and declared that any party list which failed to attract at least 15 percent of the valid ballots cast should be eliminated from the subsequent apportioning of parliamentary seats. In the cantonal elections of December 3, 1961, the Workers and Employers party had received 1.2.4 percent of the votes cast in one cantonal district, the Socialist party 6.6 percent of those cast in another. Under the quota requirement each was accordingly denied parliamentary representation, though pure and unqualified proportional allotment would have secured them two and one of those seats respectively allocated in the Grand Conseil to the districts concerned. Discontented citizens alleged that the 1921 electoral law did violence to the principle of Article 36 of Fribourg's constitution, to Article 9 of the same instrument (All citizens are equal before the law), as well as to Article 4 of the Swiss federal constitution (All Swiss are equal before the law). On appeal the Tribunal Fidiral, powerless to nullify the law of 1921, yet opined by 5 to 2 that Article 36, while not inhibiting Fribourg's Grand Conseil from setting a quota, was violated by one so high as 15 percent; and set aside its application to the Workers and Employers party, though not to the Socialist.' The Grand Conseil promptly com-