Stephanie Cerkovich as posted this draft on SSRN (forthcoming, Cardozo Law Review). Here is the abstract:

he Supreme Court’s uneasy relationship with reapportionment began the moment it announced the one person, one vote principle – the idea that fair representation requires a state’s electoral districts to be equal in population. The Court’s struggle to create a consistent body of reapportionment jurisprudence is well – documented, though much of the scholarly attention has focused on racial and political gerrymandering claims rather than numerical gerrymandering or pure one person, one vote claims. Yet one person, one vote claims pose a serious threat to our judicial and political systems, because they consume scarce public resources while being virtually unwinnable. This is particularly so in cases where states have reapportioned their own electoral districts to deviate from the one person, one vote mandate of equipopulousness by close to ten percent. While the Court in Brown v. Thomson has sanctioned such deviations as constitutionally permissible – articulating what has come to be known as the ten percent rule – it has never explained its reasoning or how it arrived at the ten percent figure. As a result, the ten percent rule has engendered confusion among lower courts and created a false sense of security for states engaged in the reapportionment process. The rule’s ambiguity is further complicated by the partisan nature of reapportionment and the doctrine of legislative privilege.
This Note describes how the Court’s uneven treatment of the one person, one vote doctrine has intersected with partisanship and legislative privilege to create a record of fruitless litigation and blur the line between political, racial, and numerical gerrymandering claims. The Note also suggests that contrary to what many scholars have suggested, eliminating Brown v. Thomson’s ten percent rule is an efficient means of restoring integrity to one person, one vote jurisprudence while remaining faithful to the doctrine itself.