Alito disagreed with court decisions on reapportionment

(Correction: Because of a reporting error, a story in the Nov. 17 Nation pages about Judge Samuel Alito's writings on reapportionment incorrectly attributed a quote about Warren Court decisions to Joshua Schwartz. The quote was from David Strauss, a University of Chicago law professor.)

WASHINGTON --In the same 1985 job application in which Samuel A. Alito Jr. said there is not a constitutional right to abortion, he made a statement that has startled many legal analysts: He said he disagreed with the Warren court decisions on reapportionment, which required that voters have equal representation.

The reapportionment cases, heard by the court when Earl Warren was the chief justice, are among the court's most widely accepted decisions on civil rights and equal representation. Until the cases were decided in the early 1960s, many state legislators were elected by geographic area, rather than by population. The result was that a legislator representing a sparsely inhabited rural area had as much power as a representative of a much more heavily populated urban area.

Wade Henderson, executive director of the Leadership Conference on Civil Rights, said yesterday that the Supreme Court nominee's views ''on reapportionment cases are deeply troubling. His opposition to one person, one vote is an extraordinary statement about his views on important principles of . . . democracy."

Gordon Todd, a Justice Department lawyer who is working on the Alito nomination, cautioned against reading too much into a line in Alito's application for a post as deputy assistant attorney general.

''He doesn't say in here, 'I disagree with one person, one vote,' " Todd said, adding that only the word ''reapportionment" is used. Moreover, Todd said, the principle of one person, one vote ''is not an issue that is going to come before the court again, and is widely accepted."

The reapportionment cases were hotly disputed when they were decided four decades ago. Many states argued that the Supreme Court should not intervene in local politics.

''Basically, what happened is that in a number of states, legislatures had been apportioned in the late 19th century and they hadn't been reapportioned since then," said Richard Fallon, a Harvard Law School professor. The Warren Court declared that unequal legislative districts had violated the Constitution's equal protection clause, establishing the ''one person, one vote" framework that governs election law today.

Once decided, the cases became widely accepted, legal scholars said. By the time Alito expressed his disagreement with the cases, in 1985, they had not been challenged even by most conservative legal activists.

''I would say that within a decade, nearly everybody had come to accept these decisions," Fallon said.

The cases struck down some gross inequities. In New Hampshire, for example, a township with three people had one state representative, as did another district with 3,244 inhabitants. In Connecticut, one House district had 191 people, while another had 81,000, according to a list in 1964 that was compiled by Morris K. Udall, who was then a Democratic representative from Arizona.

Alito's thinking about reapportionment may have been influenced by the experience of his home state, New Jersey, and the work of his father, Samuel A. Alito Sr.

The senior Alito worked for the New Jersey Legislature and was involved in developing the 1966 plan for state reapportionment, which sought to comply with mandates set by the Warren court.

A listing of radio programs in the Oct. 16, 1966, edition of The New York Times included a ''Discussion of reapportionment in New Jersey, with Samuel A. Alito, research director for the New Jersey Constitutional Convention."

The senior Alito also testified in a 1972 case on behalf of the state regarding the reapportionment.

The result of reapportionment was that New Jersey went from being represented mostly by Republicans to a majority of Democrats, said a law review article coauthored by Nathaniel Persily, a University of Pennsylvania law professor. The proportion of Democratic seats in the Senate increased to 58.6 percent from 28.6 percent, and in the New Jersey House to 65 percent from 46.7 percent, according to the article.

The New Jersey Senate was ''one of the most malapportioned in the country," the article said. It added, ''Under 'judicial pressure,' the Republican legislature and governor redrew the lines to the great benefit of Democrats who were strong in urban areas."

In an interview, Persily said that while the principle of one person, one vote, rapidly became accepted, it was controversial at the time. ''The one-person, one-vote cases are the example of the judiciary being the most activist ever . . . it led to the redrawing of districts for almost every representative institute in the United States, from the smallest town council to congressional delegations," Persily said.

Joshua Schwartz, a University of Chicago law professor who worked with Alito at the solicitor general's office in the 1980s and who is a specialist on the Warren court, agreed that the one-person, one-vote decisions ''were very controversial for a while because they dramatically changed state governments."

''But the decisions were needed to deal with a serious problem," Schwartz said. ''In many states, a handful of rural voters had more power in the state legislatures than hundreds of thousands of city-dwellers. The Warren Court decisions changed that by requiring equality, and within a few years those decisions became almost universally accepted, as they are today."

Before 1962, the Supreme Court did not intervene in apportionment disputes because justices feared favoring one party. In 1946, Justice Felix Frankfurter wrote that the court should not enter the ''political thicket" of redistricting.

The Warren court overturned Frankfurter's precedent in 1962, ruling that Tennessee's voting districts, which had not been updated in 60 years and greatly favored rural voters, violated the equal rights of residents of urban districts.

In decisions that followed, the court outlined the one-person, one-vote doctrine that forced dozens of states to redraw their districts. The court also ruled that congressional districts should be of roughly the same size.

Harvard Law School professor Morton Horwitz, in a 1998 book about the Warren court, wrote that the apportionment decisions allowed blacks to claim more political power. Before the 1962 Baker v. Carr decision, he wrote, ''legislative malapportionment served as another device for diluting the political power of urban black voters."