§ 119. “The Divisions in each State.”
The electoral divisions for the House of Representatives, in each State, may, until the Federal Parliament interposes and deals with the subject, be determined by the State legislatures, subject to the one restriction that a division is not to be formed out of parts of different States. In America a similar power has been exercised by the State legislatures without check for many years, and electoral divisions have been, for party purposes, carved out in a manner which led to grave scandal and dissatisfaction. This reprehensible manipulation of constituencies developed the art known as “Gerrymandering,” so named because Essex, a district of Massachusetts was, for political reasons, so curiously shaped as to suggest a resemblance to a salamander, and Elbridge
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Gerry was the governor of the State who signed the Bill. (See Bryce, Am. Comm. 2nd ed. I. p. 121.) The grossly unjust apportionment of population of districts, made by partisan majorities in State Legislatures, eventually led to the intervention of the Courts, and certain State laws which were clearly in violation of the equality enjoined in their respective Constitutions were held invalid. (Foster, Comm. I. p. 399.) A law of a State, relating to electoral divisions, could not be held unconstitutional unless it was contrary either to Federal law or to the Constitution of the State in which it was challenged. (Id.)
“By the Apportionment Act of 25th February, 1882, Congress required, as the general rule, that the members from each State shall be ‘elected by districts composed of contiguous territory, containing as nearly as practicable an equal number of inhabitants, and equal in number to the number of representatives to which such State’ ‘may be entitled in Congress, no one district electing more than one representative.’ To the States is left, then, only the construction of such districts. Congress must find the constitutional warrant for this measure either in the clause which provides that ‘representatives shall be apportioned among the several States,’ &c., or in the clause which provides that Congress may prescribe regulations as to the times, places and manner of holding elections for representatives.” (Burgess, Political Sc. II. p. 48.)
“I think it cannot be reasonably doubted that the power to determine the manner of holding the Congressional elections includes the power to prescribe the scrutin d'arrondissement or district ticket as against the scrutin de liste or general ticket, or vice versa; but does it include the power to require the States to construct the districts of contiguous territory and of as nearly equal population as is practicable? It is perhaps too late to raise any doubts upon this point. Congress has certainly gone no further than a sound political science would justify, indeed, not so far as a sound political science would justify.” (Id. p. 49.)