Stewart’s 14th Amendment-based two pronged test, which equally weighed the needs of the states with protections for the majority would have not only neatly displaced the problems of previous decisions, but would have embraced the best ideas of a democratic system. While it is perhaps axiomatic that no realistic system will ever completely rid the election process of ills such as extreme gerrymandering or disproportionate vote values, Stewart’s test was the best effort by a justice to that point to combine the intricacies of local politics with proper emphasis on the republican rights of the electorate.
Though it cannot be forgotten that early apportionment cases such as Colegrove occurred during a time when views of judicial power were very different from those of today, courts’ handling of such cases left the electoral process prone to even the most blatant abuse. In his opinion, Frankfurter did a better job than later justices in recognizing that simply declaring the system of a state as invalid didn’t solve an inherent problem. However, at the same time he ignored the great inadequacies of the Illinois system, whereby some votes were essentially eight to nine times as potent as others. Simply calling apportionment a political question meant that entrenched politicians and a minority of citizens could essentially control their parties’ destiny and interests.
The same issue of apportionment arose again in 1963 when the Court heard Baker v. Carr. Here, however, instead of declaring that such issues were non-justiciable due to their political nature under the Guaranty Clause, the court drifted all the way to the other end of the spectrum in an opinion by Justice Brennan. Brennan adopted a Fourteenth Amendment Equal Protection argument to declare that Tennessee’s apportionment scheme was insufficient, wresting dominion over the question from the realm of pure politics and forever changing the role of the court in apportionment cases. However, in doing so, Brennan offered no preferred remedy, possibly recognizing Justice Harlan’s earlier concerns of judicial impotence in matters of state’s rights. Notably, despite concurring in the case, Stewart foreshadowed his future dissent in Lucas by trying to limit the scope of the decision. However, Brennan’s views prevailed, placing the judiciary squarely in Justice Frankfurter’s political thicket.
Perhaps the best defense of judicial interference in the apportionment decisions of states came from Chief Justice Warren in his decision in Reynolds v. Sims. There, a passionate defense of the role of the judiciary in cases of invidious discrimination was made in ruling that a state could not have an apportionment scheme for its bicameral system roughly equivalent to that of the U.S. government. Though his ignoring of local issues was aptly critiqued by Justice Harlan in his dissent, Warren did recognize the value of votes to individuals, and his concerns regarding the ills of discrimination were more artful than those voiced in the past. These concerns provided half the composition of Stewart’s later test. For his part, Harlan’s defense of the viewpoint that considered economic, historic, geographic and majority concerns of states presaged the other half of the framework Stewart built upon in Lucas.
Lucas was presented to the court the same year as Reynolds, and it was once again the Chief Justice who took responsibility for writing the opinion of the majority. In Lucas, the court was presented with a novel question in its line of apportionment cases. The state of Colorado had a system that resulted in a disproportionate voting, an approach which had already been discussed and rejected by previous courts. However, several wrinkles differentiated the Colorado scheme from some of those which had been rejected in the past. For one, Colorado utilized referenda for questions such as reapportionment, and it was by such a vote that the disputed scheme was in place. Further, the divisions within the state had been reapportioned roughly once every decade dating back to the 1880’s. Finally, the state itself was able to justify its scheme, not just reasonably, but completely believably. Of note, the state includes several mountainous regions which are very difficult to travel to. There are also several pockets of areas which are primarily tourist destinations. This lead to the proposal of regional districts which sometimes lead to disproportionate voting weights, but which was nonetheless explicitly sanctioned by the very people it was supposedly disenfranchising.
In his opinion, Chief Justice Warren continued to advocate for the equality of votes, and in the process, ignored what may very well have been best for the state. There was no discrimination claimed in Colorado; Warren merely took the best parts of his previous opinion and applied them to the situation at hand. Such a blind adherence to his own precedent provoked Justice Stewart to proclaim upon dissenting that he,
‘…could not join in the fabrication of a constitutional mandate which imports and forever freezes one theory of political thought into our Constitution, and forever denies to every State any opportunity for enlightened and progressive innovation in the design of its democratic institutions, so as to accommodate within a system of representative government the interests and aspirations of diverse groups of people, without subjecting any group or class to absolute domination by a geographically concentrated or highly organized majority.’
Rather than merely criticizing Warren however, and in addition to adding a few notable phrases to the judicial phrasebook along the way, Stewart proposed a common sense approach to the apportionment question. To Stewart, similarly to Warren, discrimination, or ‘frustration against the will of a majority,’ must be stopped. This was an admission that the courts had more responsibility in the question than Harlan was ever willing to accept. However, on top of Warren’s unyielding protection of majority rights, Stewart seized upon the benefits of the Colorado system, and Harlan's earlier analysis, and added a prong mandating courts to weigh whether a state’s characteristics and needs might allow it to adopt a rational plan which did not strictly adhere to the principles of ‘sixth-grade math.’ This proposed two prong balancing test was simple, sensible and effective. It captured the best of the both Warren and Harlan’s views of protection and state’s rights respectively, and would have nipped more problems in the bud that it would have created.
If Stewart’s approach had been adopted, it would have meant that invidious discrimination would have been protected against and that the voice of the majority would not have been ignored. At the same time, his two prong test would have shown deference to the local politicians and indeed citizens of States that the justices might never have even visited. Instead, common sense was put to the side for the sake of stare decisis in a clear cut case of precedent overruling the best solution to a problem. This adherence to precedent had far reaching repercussions impacting such derided practices as extreme gerrymandering which continue to this day. Stewart's test would not have solved every problem, and it is naive to believe that those with a stake in the status quo would always behave honorably. However, when the judiciary finds itself in political thickets, the best strategy is to always adopt sensible rules with wide applicability. In Lucas the Court failed to do so.