Partisan Gerrymandering Claims Research Articles

Religious Gerrymandering: A New Avenue for Redistricting Challenges?

Recently, the Supreme Court significantly limited review of partisan gerrymandering claims, closing the door to a substantial portion of redistricting challenges. However, religious-based redistricting is an overlooked area that should be explored under both federal and state Constitutions. Existing redistricting standards can easily be applied to religious gerrymandering claims. In addition, the federal Establishment Clause may provide a basis for some especially egregious instances of religious gerrymandering. However, perhaps the least explored and most viable avenue for relief is through reliance on state constitutional protections, such as the unique language of Utah's Constitution. Using Utah as a case study, I suggest that religious gerrymandering is an area ripe for development through legal challenges.

A Comparative Study of the Political Question Doctrine in the Context of Political-System Failures: The United States and the United Kingdom

In 2019, the Supreme Courts of both the United States and the United Kingdom decided cases involving the political question doctrine. In Rucho v. Common Cause, the U.S. Supreme Court held that partisan gerrymandering claims raise inherently political questions because the Court was unable to discern judicially manageable standards for determining when a partisan gerrymander had gone “too far.” Whereas, in R v. The Prime Minister (“Miller”), the United Kingdom Supreme Court adopted a narrower view of the political question doctrine, unanimously ruling that although the case involved political actors and the royal prerogative, it did not present a political question. The Court then proceeded to decide the case on the merits, holding that the Prime Minister exceeded his authority in prorogating Parliament before the Brexit deadline. The response of the judiciary—whether to abdicate or to intervene—presents a study in stark contrasts. This paper evaluates Rucho by comparing the United States’ and United Kingdom’s respective political question doctrines through the lens of John Hart Ely’s representation-reinforcement theory of judicial review. According to Ely, the judiciary is uniquely competent to intervene like referees when one side gets an unfair advantage—not when the “wrong side” scores. Translated into legal theory, that means that when the political processes are undeserving of trust, either because certain groups are denied access or because representatives are operating in flagrant disregard of constituents’ interests, courts are fully capable of determining when the political branches have gone “too far.” Both cases illustrate why the Court’s duty to protect from state infringement individual liberties related to democratic participation is at its zenith when system failures denigrate the political process. In Rucho, the Court ignored this calling, abdicating its duty to intervene. Examining Miller reveals where the Court erred in Rucho: (1) Miller is an exemplar of the representation-reinforcement theory of judicial review, (2) Miller offers critical insights to contrast the Court’s approach in Rucho, and (3) Miller offers an example of “judicially manageable standards” for determining when a branch has exceeded the constitutional boundaries of its powers—a standard that the majority in Rucho so desperately seeks. At bottom, Rucho got it wrong—and Miller can help us see why.

The Anti-Carolene Court

Once upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial review. Intervene to correct flaws in the political process, Carolene instructed courts, but otherwise allow American democracy to operate unimpeded. In this Article, I use the Supreme Court’s recent decision in Rucho v Common Cause to argue that the current Court flips Carolene on its head. It both fails to act when the political process is malfunctioning and intercedes to block other actors from ameliorating American democracy. Rucho is the quintessential example of judicial apathy when, under Carolene, judicial engagement was sorely needed. The Court acknowledged that partisan gerrymandering offends democratic values like majoritarianism, responsiveness, and participation. But the Court didn’t take the obvious next step under Carolene and hold that extreme gerrymanders are unlawful. Instead it went in exactly the opposite direction, announcing that partisan gerrymandering claims are categorically nonjusticiable. Rucho, however, is only the tip of the current Court’s anti-Carolene spear. Past cases have compounded (and future cases will likely exacerbate) the democratic damage by preventing non-judicial institutions from addressing defects in the political process. Looking back, the Court’s campaign finance decisions have struck down regulation after regulation aimed at curbing the harms of money in politics. Looking forward, the Court may well nullify the main non-judicial response to gerrymandering: independent redistricting commissions adopted through voter initiatives. What can possibly explain this doctrinal pattern? Conventional modes of analysis — originalism, judicial restraint, respect for precedent, and so on — all fail as justifications. They’re riddled by too many exceptions to be persuasive. What does seem to run like a red thread through the current Court’s rulings, though, is partisanship. The anti-Carolene Court may spurn pro-democratic judicial review in part because, at this historical juncture, it often happens to be pro-Democratic.

Nonjudicial Solutions to Partisan Gerrymandering

This Essay offers some hesitation over judicial solutions to the partisan gerrymandering, hesitation consistent with Justice Frankfurter’s dissenting opinion in Baker v. Carr. It argues that partisan gerrymandering reform is best suited for the political process and not the judiciary. First, it traces the longstanding roots of the problem and the longstanding trouble the federal judiciary has had engaging in the process, which cautions against judicial intervention. Second, it highlights the weaknesses in the constitutional legal theories that purport to offer readily-available judicially manageable standards to handle partisan gerrymandering claims. Third, it identifies nonjudicial solutions at the state legislative level, solutions that offer more promise than any judicial solution and that offer the flexibility to change through subsequent legislation if these solutions prove worse than the original problem. Fourth, it notes weaknesses in judicial engagement in partisan gerrymandering, from opaque judicial decisionmaking to collusive consent decrees, that independently counsel against judicial involvement.

Gerrymandering & Justiciability: The Political Question Doctrine After Gill v. Whitford

In Rucho v. Common Cause, the Supreme Court held that partisan-gerrymandering claims present political questions beyond the jurisdiction of the federal courts. The decision marks the first time that a majority of the Court has used the political question doctrine to dismiss a claim based on the supposed unmanageability of legal standards alone. Despite this development being essential to the Court’s holding, its significance went largely unexplored and uncontested. This Article deconstructs Rucho’s articulation and application of the political question doctrine and makes two contributions. First, the Article disentangles the political question doctrine from neighboring justiciability doctrines. The result is a set of substantive principles that should guide federal courts as they exercise a range of routine judicial functions—remedial, adjudicative, and interpretive. Rather than unrealistically attempting to draw crisp jurisdictional boundaries between exercises of “political” and “judicial” power, the political question doctrine should seek to moderate their inevitable (and frequent) clash. Standing doctrine should continue to guide courts in determining whether they have authority over a case involving a political question. But the political question doctrine should guide courts in determining how to navigate areas of overlapping constitutional authority covered by the question. Second, the Article challenges the assumption that manageability can and should provide a standalone test of jurisdiction. Rucho’s “manageability exception” to Article III actively undermines the separation of powers principles it purports to protect. Treating manageability as an independent test of jurisdiction invites federal courts to opine about abstract questions not presented by the case or controversy before them and to abdicate their duty to decide cases properly before them without any constitutional command to the contrary. Rucho offers a profound illustration. Chief Justice Roberts asserts that partisan-gerrymandering claims are not “resolvable according to legal principles,” but his opinion fails to set out any legal standard rooted in the Constitution for deciding when a claim is or is not “manageable.” The result is a decision as hollow as it is hypocritical. This Article proposes a new approach to the political question doctrine, explains where the Court went wrong in Rucho, and explores what it could mean for the future of partisan-gerrymandering claims and justiciability doctrine alike.

Understanding Significance Tests From a Non-Mixing Markov Chain for Partisan Gerrymandering Claims

ABSTRACTRecently, Chikina, Frieze, and Pegden proposed a way to assess significance in a Markov chain without requiring that Markov chain to mix. They presented their theorem as a rigorous test for partisan gerrymandering. We clarify that their ε-outlier test is distinct from a traditional global outlier test and does not indicate, as they imply, that a particular electoral map is associated with an extreme level of “partisan unfairness.” In fact, a map could simultaneously be an ε-outlier and have a typical partisan fairness value. That is, their test identifies local outliers but has no power for assessing whether that local outlier is a global outlier. How their specific definition of local outlier is related to a legal gerrymandering claim is unclear given Supreme Court precedent.

Gerrymandering and Association

This article argues that the First Amendment expressive right of association prohibits excessive partisan gerrymanders. For decades, the Court has struggled to articulate a manageable standard for partisan gerrymandering claims. Justice Kennedy’s concurring opinion in Vieth v. Jubelirer suggested that the First Amendment might provide a more promising basis for such a claim than equal protection. The issue is now before the Court in Gill v. Whitford and Benisek v. Lamone. The right of association has long been understood to limit the dominant political group’s ability to discriminate against its rivals. For over four decades, the Court has understood that voting implicates the right of association, at least in some contexts. The article develops the argument for challenging partisan gerrymanders as a violation of the First Amendment right of association, focusing on the party-based character of the harm and an administrable effects-based legal standard. It explains how the legal standard developed in other voting contexts might be extended and applied to cases challenging excessive partisanship in drawing district lines. Expressive association provides the strongest constitutional basis for challenging partisan gerrymandering for three reasons. The first is that it best captures the character of the injury, which inheres in party-based discrimination – more specifically, the dominant political party’s attempt to entrench itself at the expense of the rival major party and its supporters. Second, the legal standard adopted in voting-as-association cases focuses on effect rather than intent, avoiding the thorny challenge of discerning legislative intent. Third, the voting-as-association cases provide an appropriately nuanced standard. The balancing test that the Court has adopted in its voting-as-association cases allows fair consideration of both the burdens that the challenged practice has on the non-dominant party, as well as the state interests that might justify these burdens.

The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent

It has been notoriously difficult for the U.S. Supreme Court to develop a judicially manageable — and publicly comprehensible — standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one-person, one-vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one-person, one-vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning in sharp contrast to the universalism of the “one-person, one-vote” principle; and particularism can provide a judicially manageable standard for partisan gerrymandering claims, doing so by making the original Gerrymander — the one provided the name for this category of pernicious partisanship — a fixed historical benchmark by which to judge the distortion of legislative districts. This particularistic reasoning should be persuasive to Justice Anthony Kennedy, especially if rooted in the First Amendment (home to other well-known examples of particularistic analysis), and if also combined with a cogent explanation why the First Amendment right must remain “judicially under-enforced” relative to its potential scope on universalistic grounds, because of the barrier imposed by the political question doctrine’s need for a judicially manageable standard. (Particularism, in other words, defines not necessarily the full First Amendment right from a theoretical perspective, but only the judicially enforceable portion of it.) Even more important than persuading Justice Kennedy, however, is convincing a Supreme Court controlled by conservatives — after Kennedy has been replaced by another like Justices Thomas, Alito, or Gorsuch — not to overrule an opinion in which Justice Kennedy has identified a judicially manageable standard for invalidating partisan gerrymanders as unconstitutional. On this crucial point, particularism has distinct advantages to universalism, including facilitating the possibility that the Kennedy-authored precedent quickly becomes imbedded in the nation’s political culture, because the public easily understands (and embraces) a precedent that renders unconstitutional a district as disfigured as the original Gerrymander. A precedent that becomes as integral element of America’s public self-understanding in this way is one that conservatives on the Court would have difficulty overruling and, indeed, little interest in repudiating insofar as it is historically grounded and limited by the kind of particularistic reasoning that conservatives consider acceptable.

From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders

For decades, legal attacks on partisan gerrymanders have foundered on a manageability dilemma: doctrinal standards the Supreme Court has regarded as judicially discoverable have been rejected as unmanageable, whereas the more manageable standards on offer have been dismissed as insufficiently tethered to the Constitution, that is, as undiscoverable. This Article contends that a solution to the dilemma may be found in a seemingly unlikely place: the body of state constitutional law concerned with the adequacy of state systems of public education. The justiciability barriers to partisan gerrymandering claims have near analogues in educational adequacy cases, yet only a minority of the state courts have deemed educational adequacy claims nonjusticiable. Other courts have dealt with putatively standardless education claims by holding that the legislature must adopt educational standards, together with a system of testing, school-finance, and accountability reasonably designed to realize those standards. If the legislature drags its feet, courts have issued provisional remedies, which the legislature is free to update or replace. I explain how the same strategy could be adapted for a new generation of “representational adequacy” claims under broadly worded provisions found in many state constitutions, and possibly under Article I or the Fourteenth Amendment of the U.S. Constitution. I also suggest that by anchoring claims to the generally-worded provisions about representation found in state constitutions and Article I, litigants can mitigate the substantial downside risk of success under the Equal Protection Clause — namely, the inducement of responsiveness-dampening bipartisan gerrymanders. The Appendix provides a state-by-state breakdown of constitutional provisions and relevant precedents, highlighting twenty-two states that appear ripe for representational-adequacy litigation.

Voting is Association

What’s the relationship between the First Amendment right to expressive association and the Fourteenth Amendment right to vote? It’s closer than you probably think. The Supreme Court employs a balancing test in constitutional challenges to a wide variety of election practices, including ballot access rules, blanket primaries, and voter identification. This standard is commonly referred to as “Anderson-Burdick” for the two main cases from which it derives, Anderson v. Celebrezze and Burdick v. Takushi. Commonly overlooked is that the Anderson-Burdick standard is the offspring of a union between the Fourteenth Amendment right to vote and the First Amendment right of association. This article explores the origins, development, and subsequent obscuration of the relationship between voting and associational rights. Central to this story are two opinions by Justice John Paul Stevens, the first (Anderson) written early in his tenure on the Supreme Court and the second (Crawford v. Marion County Election Board) near the end. After canvassing the Court's voting-association cases, the article argues for renewed recognition of this link when it comes to contemporary burdens on participation, closing with some thoughts on the applicability of the First Amendment right of association to partisan gerrymandering claims. Voting restrictions implicate expressive association to the extent they prevent voters from joining together with like-minded others, candidates, and political parties. Reviving the voting-association link would cast current voting rights cases in a different light, one that more accurately reflects the real-world dynamic in these cases. These disputes are not simply or even mainly about an individual’s right to cast a ballot. They are best understood as inter-party disputes, in which political insiders seek to block outsiders from aggregating their votes so as to challenge the dominant party. The focus would accordingly shift to a voting law or practice’s disparate impact on likely supporters of the non-dominant party, a question that has been in the background but not the foreground of most recent cases.

Revealing Preferences: Why Gerrymanders are Hard to Prove, and What to Do about It

Gerrymandering requires illicit intent. We classify six proposed methods to infer the intent of a redistricting authority using a formal framework for causal inferences that encompasses the redistricting process from the release of census data to the adoption of a final plan. We argue all proposed techniques to detect gerrymandering can be classified within this formal framework. Courts have, at one time or another, weighed evidence using one or more of these methods to assess racial or partisan gerrymandering claims. We describe the assumptions underlying each method, raising some heretofore unarticulated critiques revealed by laying bare their assumptions. We then review how these methods were employed in the 2014 Florida district court ruling that the state legislature violated a state constitutional prohibition on partisan gerrymandering, and propose standards that advocacy groups and courts can impose upon redistricting authorities to ensure they are held accountable if they adopt a partisan gerrymander.

The Supreme Court and Election Law: A Reply to Three Commentators

Journal of Legislation and Notre Dame Law School invited three distinguished scholars to comment on my recent book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003), and have kindly given me this chance to reply. After a brief summary of the main points of my book, I focus on what I consider to be the central critical claim of each commentator. Professor John Nagle gently suggests that election law itself may not be a coherent field of study, noting that much election law jurisprudence appears to turn on matters of appearance over that of substance. Professor Luis Fuentes-Rohwer agrees with much of my analysis, but argues that I do not go far enough - suggesting that the logical end-point of my argument is for the Supreme Court to extricate itself from the political thicket entirely. Professor Guy-Uriel E. Charles argues that my distinction between core and contested equality rights eliminates any purpose for judicial review and is too difficult to put into practice.In this Reply, I defend my approach. Professor Nagle is right that the Court often strays from the right path when it decides election law cases on appearances alone, but he fails to recognize how conceiving of election law synthetically informs Court decisionmaking on issues such as the justiciability of partisan gerrymandering claims. Professor Fuentes-Rohwer's general suggestion of Court exit from the political thicket has much to commend it in the abstract, but he fails to evaluate my proposal as a second best approach, particularly compared to the main alternative floating around election law circles today, the structuralist approach that focuses on appropriate political competition. Finally, Professor Charles puts his finger on the most difficult aspect of my book, and I welcome his decision to take my proposed distinction between core and contested equality claims seriously.

Looking for Standards (in All the Wrong Places): Partisan Gerrymandering Claims after Vieth

In 1986, the Supreme Court held that it would entertain claims that a legislative decision to redistrict legislative seats to give unfair advantage to one major political party over the other could violate the United States Constitution's Equal Protection Clause. But the Court's fractured decision in Davis v. Bandemer that such claims were justiciable resulted in virtually no successful claims in the lower courts.In Vieth v. Jubelirer, 124 S. Ct. 1769 (2004), the Court revisited the issue. The case was a 4-1-4 split. Four Justices signed a plurality opinion stating the view that partisan gerrymandering claims should be considered nonjusticiable because of the absence of a standard for separating permissible from impermissible consideration of party affiliation of voters in the redistricting enterprise. Four Justices would have adopted one of three invigorated tests to police partisan gerrymandering. Justice Kennedy, writing only for himself, agreed with the four dissenters that partisan gerrymandering cases remain justiciable. But he also agreed with the four Justices in the plurality that the Vieth plaintiffs' claim must fail because no one has articulated thus far judicially manageable standards for partisan gerrymandering claims. He suggested a standard might emerge from historical discussions of districting practices, better computer technology, or shifting to a First Amendment analysis.Part I of this Article surveys the five opinions in Vieth, focusing on Justice Kennedy's pivotal opinion. Part II explains why Justice Kennedy is unlikely to find a judicially manageable standard for partisan gerrymandering in history, technology, or the First Amendment, given his rejection of vote dilution, expressive harm, conflict of interest, and improper motive tests proposed by the Vieth plaintiffs and dissenters. Finally, Part III endorses Justice Kennedy's decision to leave the door open to future partisan gerrymandering cases. It explains that the judicial manageability debate in Vieth conflates two separate concerns: one about consistency of result across the courts and a second about the justifiability of a standard for judging partisan gerrymandering claims. The consistency of result concern is overblown, because the Court could rather easily come up with an easily administrable partisan gerrymandering standard. But the Court should refrain from coming up with such a standard until it could be justified by an emerging social consensus regarding proper and improper consideration of voter party identification in redistricting. If consensus emerges, the Court may embrace it. Until then, the matter should be left to the political processes, which have a number of tools to control egregious partisan behavior.

Looking for Standards (in All the Wrong Places): Partisan Gerrymandering Claims after Vieth

In 1986, the Supreme Court held that it would entertain claims that a legislative decision to redistrict legislative seats to give unfair advantage to one major political party over the other could violate the United States Constitution's Equal Protection Clause. But the Court's fractured decision in Davis v. Bandemer that such claims were justiciable resulted in virtually no successful claims in the lower courts.In Vieth v. Jubelirer, 124 S. Ct. 1769 (2004), the Court revisited the issue. The case was a 4-1-4 split. Four Justices signed a plurality opinion stating the view that partisan gerrymandering claims should be considered nonjusticiable because of the absence of a standard for separating permissible from impermissible consideration of party affiliation of voters in the redistricting enterprise. Four Justices would have adopted one of three invigorated tests to police partisan gerrymandering. Justice Kennedy, writing only for himself, agreed with the four dissenters that partisan gerrymandering cases remain justiciable. But he also agreed with the four Justices in the plurality that the Vieth plaintiffs' claim must fail because no one has articulated thus far judicially manageable standards for partisan gerrymandering claims. He suggested a standard might emerge from historical discussions of districting practices, better computer technology, or shifting to a First Amendment analysis.Part I of this Article surveys the five opinions in Vieth, focusing on Justice Kennedy's pivotal opinion. Part II explains why Justice Kennedy is unlikely to find a judicially manageable standard for partisan gerrymandering in history, technology, or the First Amendment, given his rejection of vote dilution, expressive harm, conflict of interest, and improper motive tests proposed by the Vieth plaintiffs and dissenters. Finally, Part III endorses Justice Kennedy's decision to leave the door open to future partisan gerrymandering cases. It explains that the judicial manageability debate in Vieth conflates two separate concerns: one about consistency of result across the courts and a second about the justifiability of a standard for judging partisan gerrymandering claims. The consistency of result concern is overblown, because the Court could rather easily come up with an easily administrable partisan gerrymandering standard. But the Court should refrain from coming up with such a standard until it could be justified by an emerging social consensus regarding proper and improper consideration of voter party identification in redistricting. If consensus emerges, the Court may embrace it. Until then, the matter should be left to the political processes, which have a number of tools to control egregious partisan behavior.

The Benefits of 'Judicially Unmanageable' Standards in Election Cases Under the Equal Protection Clause

The conventional story about the Supreme Court's decision in Baker v. Carr to adjudicate disputes over legislative apportionment is that political market failure required intervention. The market failed in the case of unequally populated districts because existing legislators could not be expected to themselves out of a job, nor would voters who benefit from the existing apportionment plan elect legislators inclined to do so. This market failure makes a strong case for extra-legislative intervention in apportionment, assuming we - or at least courts - may make the normative judgment that unequally populated districts are improper. Thus, a subtext of the conventional story is our trust in the judiciary. We need faith that judges' impartiality and general wisdom makes up for the lack of particular competence in dealing with political matters. Opponents of intervention doubted competence in this area, calling for nonjusticiability in this area because standards...for judgment are lacking. This concern over judicial manageability turned out to be seriously exaggerated in the legislative apportionment and districting cases, where the court's adoption in Reynolds v. Sims of a strict person, one vote standard required little more than knowledge of sixth grade arithmetic, but it has proven more real in other cases, most recently, in Bush v. Gore.This Article argues that the Baker majority and dissenters apparently failed to appreciate the benefits of unmanageability for dealing with election cases under the Equal Protection Clause of the 14th Amendment. Precisely because these cases require the Supreme Court to make (at least implicit) normative judgments about the meaning of democracy or the structure of representative government, the danger of manageable standards is that they ossify the new rules and enshrine the current Court majority's political theory. That enshrinement is precisely what happened in the one person, one cases.We cannot be surprised that the Court adopted the manageable standard of equally apportioned districts in Reynolds; manageable standards lower administrative costs, decrease the chances of lower court deviation from Supreme Court preferences, and increase reliance interests of those involved in the electoral process. But we must recognize the cost of manageable standards as well.In contrast to Reynolds, when the Court does not articulate a manageable standard, it leaves room for future Court majorities to deviate from or modify rulings in light of new thinking about the meaning of democracy or the structure of representative government, or based on experience with the existing standard. It also allows for greater experimentation and variation in the lower courts using the new standard. Following modification and experimentation, it then often will be appropriate for the Court to articulate a more manageable standard.In Part I of this Article, I explore whether the Court adopted an appropriately precise standard in the person, one vote cases. I argue that the Court adopted the most manageable of standards that in retrospect has been too restrictive of political realities. I further consider how politics and jurisprudence might have been different had the Court adopted Justice Stewart's alternative, unmanageable standard for judging malapportionment claims. Justice Stewart's standard would have provided greater flexibility in dealing with apportionment problems and provided greater information to the Justices as they refined the new constitutional standards.In Part II of this Article, I explore three additional areas in which the Court has adjudicated election cases under the Equal Protection Clause: cases involving wealth qualifications (Harper), suffrage qualifications (Kramer), and counting (Bush v. Gore). I use these three cases to illustrate how the Court may increase the unmanageability of the equal protection standards as it faces a more controversial equal protection claim.Finally, in Part III, I briefly show how unmanageable standards may counteract the possibility of court-imposed proportional representation, which lurks in the background of a number of election cases under the Equal Protection Clause. Unmanageable standards sometimes will be a better alternative than denying relief altogether. I make this point by contrasting two cases. In Mobile v. Bolden, the Court rejected a claim that an at-large districting plan violated equal protection. It did so at least in part because it believed that to hold otherwise would have imposed a system of proportional representation on the creation of legislative bodies. In Davis v. Bandemer, the partisan gerrymandering case, the Court recognized a claim of an unconstitutional partisan gerrymander under the Equal Protection Clause, but did so using an unmanageable standard. Contrary to the predictions of the Justices not signing the plurality opinion and of some commentators, the Court in Bandemer successfully avoided imposing a proportional representation test on partisan gerrymandering claims. Thus, the Mobile Court was incorrect that a decision under the Equal Protection Clause would have led inexorably to proportional representation.