ONE MAN, ONE VOTE – SCOTUS – DECEMBER 8, 2015
Lucy Warner

I received this Salon article in an email a couple of days ago and was unhappy to find that the Supreme Court is going to review a basic tenet of the Constitution in relation to the commonplace and usually Republican tactic of gerrymandering for racial and political inequality. It was my understanding that this sort of gerrymandering to achieve an improvement in a specific party’s chance to win elections is not actually legal, but of course it is a basic part of what the party in power does regularly in most states, and most recently in Florida. They claim they don’t do it, but both parties have been accused of the practice down through the years. They just have to do it in a legal way, in other words, a politically balanced way. This court case is about the question of whether or not the redistricting can be done on the number of eligible voters rather than overall population. In the articles that follow, different viewpoints and arguments are given on which way is best.

Black and Hispanic people, due partly to practices like red-lining, tend to be clustered in certain city neighborhoods rather than rural areas or with whites, and they too often are not registered to vote. Laws that are restrictive on who will be given eligible status, like the requirement of a specific type of picture ID, the absence of a prior felony conviction, or in the case of Hispanic naturalized citizens the requirement of a birth certificate is commonly being used to limit the registration of minorities who are likely to vote with, rather than against, the Democratic Party. Having pared down the number of registered voters of certain groups in this way, Republicans are now trying to group people together as more powerful or weaker districts by party. They want to rig the dice.

This case is related to a change made some fifty years ago to achieve racial balance in elections. The Supreme Court has been reconsidering the laws basic to Civil Rights for the last five to ten years at the behest of the “conservatives” who now have a majority in the Republican Party and unfortunately on the Supreme Court. Today the argument on Evenwel v. Abbott is scheduled in the Court.

I will collect more articles on this subject as they appear and present them for the reader’s consideration along with opinion pieces. This is a “fact-finding tour” for me, so I will say little except that whatever rolls back Civil Rights in practice, whether legal in theory or not, is not good for our nation.



Evenwel v. Abbott – December 8, 2015 Supreme Court Trial



http://www.salon.com/2015/05/28/the_supreme_court_case_that_could_doom_the_democrats_inside_the_rights_cynical_scheme_to_cement_power/

"Supreme Court case could doom Democrats... justices could help GOP rig the game"
Salon

The Supreme Court case that could doom the Democrats: How the justices could help GOP rig the game
A new proposal to change how legislative districts are drawn shows conservatives' ruthless cynicism in action
SIMON MALOY
THURSDAY, MAY 28, 2015

Photograph -- Justices Antonin Scalia, John Roberts (Credit: AP/Dave Tulis/Larry Downing/Photo montage by Salon)


This week, the Supreme Court opted to hear arguments in Evenwel v. Abbott, a case out of Texas that challenges the ways in which states draw their legislative districts. The longstanding status quo has been that when state governments set the boundaries for legislative districts, they use census estimates of total populations to determine where the boundaries should be drawn so that each district contains roughly the same number of people. The plaintiffs in Evenwel, and the conservative activist group representing them, argue that the districts should be drawn based on the number of eligible voters, not the total population. It’s a challenge to the existing notion of “one person, one vote,” and up until now, the high court has been unwilling to consider cases that seek to redefine that principle.

This case is yet another testament to the conservative movement’s boundless creativity when it comes to exploiting the courts to achieve policy outcomes. Conservative activists know that if they can wrap their policy agenda in a legal argument that at least sounds plausible, they have a pretty good chance of getting a favorable decision from the Supreme Court’s conservative bloc.

In this case, the policy agenda is restricting the political power of Democratically-aligned populations. The reason conservative activists are seeking this change to “one person, one vote” isn’t to satisfy an ideological argument. As law professor Richard Hasen noted at Slate, the argument being put forth by the conservative group behind the case actually hampers the abilities of local governments to determine their own systems of political representation. They’re urging the Supreme Court to restrict the rights of the individual states, which tends not to comport too well with the conservative ideal of “small government.” But, as Hasen writes, “a ruling favorable to conservatives in the Evenwel case, especially if extended to congressional redistricting, could shift more power to Republicans, who are more likely to live in areas with high concentrations of voters.”

Urban areas have greater concentrations of people who, for one reason or another, are not eligible to vote. By removing them from the tallies when redrawing district lines, you’re effectively diminishing the number of districts that will be more likely to vote Democratic. In states like Texas, the impact could be huge. “Drawing districts based on the number of voters would mean that Hispanic districts in many parts of Texas would need to contain more actual people (each a constituent), than comparable suburban white districts,” the Brennan Center for Justice notes. The conservatives pushing for this change understand this, and the overall goal of increasing Republican political power outweighs the ideological considerations.

It also outweighs the practical considerations. Determining district boundaries is a messy business as it is. States use estimates of total population because it’s the least troublesome way of counting and, at the very least, they are consistent across the board. Mandating a shift to counting only the eligible voting population introduces a huge amount of complexity and chaos into an already uncertain process. Hot Air’s Jazz Shaw explains:

Among those who are currently ineligible, how many will finish their prison terms and regain the right to vote? How many will complete the naturalization process? The list goes on and it’s a dizzying problem to even contemplate. I suppose the court could say something vague along the lines of demanding that the state make their “best effort” to determine the numbers, but then you’re just in line for an endless series of lawsuits from plaintiffs who claim that the best effort in question wasn’t good enough or was corrupted by biased politicians.

It has the real potential to be a great big disaster in the making, and pretty soon you’re going to hear pretty every conservative with access to a media platform demand that it happen. As Paul Waldman writes at the Washington Post, the conservative posture towards Evenwel will very likely be similar to what’s happened with another bit of right-wing legal exotica, the King v. Burwell challenge to the Affordable Care Act’s insurance subsidies:

First, a conservative advocate comes up with a novel legal theory, one few people had considered before, to accomplish a Republican goal. Though it flies in the face of either logic, history, and common sense (as is the case in King) or settled precedent (as in this case), Republicans everywhere quickly realize its potential and embrace it wholeheartedly, no matter how many silly arguments they might have to make along the way. And in the end, five conservative justices on the Supreme Court might or might not give the GOP a huge and unexpected victory.

It’s a bluntly cynical way to realize one’s policy agenda without actually having to bother with elections and lawmaking, and conservatives have demonstrated time and again how ruthlessly effective it can be.




https://en.wikipedia.org/wiki/Redistricting

Redistricting
From Wikipedia, the free encyclopedia

Redistricting is the process of drawing United States electoral district boundaries.

In 33 states, the state legislature has primary responsibility for creating a redistricting plan, in many cases subject to approval by the state governor. To reduce the role that legislative politics might play, seven states (Arizona, California, Hawaii, Idaho, Montana, New Jersey and Washington) determine congressional redistricting by an independent or bipartisan redistricting commission.[1] Four states, Florida, Iowa, Maine, and New York give independent bodies authority to propose redistricting plans, but preserve the role of legislatures to approve them. Seven states have only a single representative for the entire state because of their low populations; these are Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont and Wyoming.

Each state has its own standards for creating Congressional and legislative districts.[3] In addition to equalizing the population of districts and complying with Federal requirements, criteria may include attempting to create compact, contiguous districts, trying to keep political units and communities within a single district, and avoiding the drawing of boundaries for purposes of partisan advantage or incumbent protection.[4] In the states where the legislature (or another body where a partisan majority is possible) is in charge of redistricting, the possibility of gerrymandering (the deliberate manipulation of political boundaries for electoral advantage, usually of incumbents or a specific political party) often makes the process very politically contentious, especially when the majorities of the two houses of the legislature, or the legislature and the governor, are from different parties. The state and federal court systems are often involved in resolving disputes over Congressional and legislative redistricting when gridlock prevents redistricting in a timely manner. In addition, the losers to an adopted redistricting plan often challenge it in state and federal courts. Justice Department approval (which is known as pre clearance) was formerly required under Section 5 of the Voting Rights Act of 1965 in certain states that have had a history of racial barriers to voting.

Partisan domination of state legislatures and improved technology to design contiguous districts that pack opponents into as few districts as possible have led to district maps which are skewed towards one party. Consequently, many states including Florida, Georgia, Maryland, Michigan, Pennsylvania and Texas have succeeded in reducing or effectively eliminating competition for most House seats in those states. In 2003 Republicans in Texas increased their representation in the U.S. House through a controversial mid-decade redistricting.

Other states including California, New Jersey and New York have opted to protect incumbents of both parties, again reducing the number of competitive districts. The Supreme Court's ruling on the Pennsylvania gerrymander[5] effectively cemented the right of elected officials to select their constituents by eliminating most of the grounds for disenfranchised constituents to challenge gerrymandered lines.

Redistricting has to follow certain criteria to be accepted.
1.compactness
2.contiguity
3.equal population
4.preservation of existing political communities
5.partisan fairness
6.racial fairness [6]

Gerrymandering[edit]

Gerrymandering is the practice of drawing district lines to achieve political gain for legislators. The practice of gerrymandering involves the manipulation of district drawing in aims to leave out, or include, specific populations in a legislator's district to ensure his/her reelection.




https://en.wikipedia.org/wiki/United_States_congressional_apportionment

United States congressional apportionment
From Wikipedia, the free encyclopedia

United States congressional apportionment is the process[1] by which seats in the United States House of Representatives are distributed among the 50 states according to the most recent constitutionally mandated decennial census. Each state is apportioned a number of seats which approximately corresponds to its share of the aggregate population of the 50 states.[2] However, every state is constitutionally guaranteed at least one seat.

Because the size of a state's total congressional delegation determines the size of its representation in the U.S. Electoral College, congressional apportionment also affects the U.S. presidential election process as well.

Representatives is currently set to 435, and has been since 1913, excluding a temporary increase to 437 after the admissions of Alaska and Hawaii. Though the actual reapportionment will normally occur in respect of a decennial census, the law that governs the total number of representatives and the method of apportionment to be carried into force at that time can be created prior to the census.

The decennial apportionment also determines the size of each state's representation in the U.S. Electoral College. Under Article II, Section 1, Clause 2 of the U.S. Constitution, any state's number of electors equals the size of its total congressional delegation (i.e., House seat(s) plus Senate seats).

Federal law requires the Clerk of the House of Representatives to notify each state government of its entitled number of seats no later than January 25 of the year immediately following the census. After seats have been reapportioned, each state determines the boundaries of congressional districts—geographical areas within the state of approximately equal population—in a process called redistricting.[3] Any citizen of the State can challenge the constitutionality of the redistricting in their US district court.[4]

Because the deadline for the House Clerk to report the results does not occur until the following January, and the states need sufficient time to perform the redistricting, the decennial census does not affect the elections that are held during that same year.

Constitutional texts[edit]

The subject of Congressional apportionment is addressed twice in the U.S. Constitution. Initially, the apportionment of House seats was guided by two sentences in Article I, Section 2, clause 3:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at least one Representative;…”

Following the end of the Civil War, the first of those provisions was superseded by Section 2 of the Fourteenth Amendment:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed,[5] But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male[6] inhabitants of such State, being twenty-one years of age,[7] and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Apportionment methods[edit]

Apart from the requirement that the number of delegates for each state is at least one, a state's number of representatives is in principle proportional to population, thus assuring reasonably consistent representation to the people regardless of the state boundaries and populations. No method of calculating a fair distribution of voting power across the various states was known until recently and five distinct apportionment methods have been used since the adoption of the Constitution, none of them producing fully proportional distribution of power among the states.

The current method, known as the method of equal proportions, has been used since the 1940 Census. The Vinton or Hamilton method, used from 1850 to 1900, was susceptible to what is known as the apportionment paradox or Alabama paradox.[17]

In 2008, a so-called One-Person-One-Vote model was suggested by Jurij Toplak in Temple Law Review,[18] which would distribute the states' power in the House of Representatives exactly 'according to their Numbers'. Under this system, however, members of the House of Representatives do not have equal voting power. Some claim that this method would be constitutional, asserting that the U.S. Constitution does not require Representatives to have equal voting powers but does require the voters to have votes of equal weight.[citation needed][19]




http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/

Evenwel v. Abbott
Docket No. Op. Below Argument Opinion Vote Author Term
14-940 W.D. Tex. Dec 8, 2015
TBD TBD TBD OT 2015

Issue: Whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population, when apportioning state legislative districts.

SCOTUSblog Coverage
Argument preview: How to measure "one person, one vote" (Lyle Denniston)
Symposium: Evenwel v. Abbott and the Constitution’s big data problem (Nathaniel Persily)
Symposium: Ideology, partisanship, and the new “one person, one vote” case (Richard Hasen)
Symposium: Misguided hysteria over Evenwel v. Abbott (Richard Pildes)
Symposium: Taking voter equality seriously (Ilya Shapiro)
Symposium: Does “one person, one vote” really mean what it says? (Hans von Spakovsky)
The new look at "one person, one vote," made simple (Lyle Denniston)
Major test on voter equality set for review (Lyle Denniston)
Petition of the day (Maureen Johnston)

Oct 9 2015 SET FOR ARGUMENT on Tuesday, December 8, 2015




http://www.scotusblog.com/2015/05/major-test-on-voter-equality-set-for-review/

Major test on voter equality set for review
Lyle Denniston Independent Contractor Reporter
Posted Tue, May 26th, 2015

Cartoon -- SCOTUS takes Evenwel v. Abbott (Art Lien)


The Constitution has been understood for the past half-century to require that no individual’s vote count more at election time than anyone else’s. The Supreme Court agreed on Tuesday, for the first time, to clarify how that concept of equality is to be measured, when legislatures are drawing up election districts.

The Court took on a case challenging the 2011 redistricting of the thirty-one seats in the Texas Senate, focusing on what measure of population should be used to judge whether the “one-person, one-vote” mandate has been met. That mandate originated in Reynolds v. Sims in 1964. The new case of Evenwel v. Abbott will be heard and decided next Term, as will two new criminal cases the Justices also agreed on Tuesday to hear.

In one of the other cases, Foster v. Humphrey, the Court will clarify the ban on the use of race in excluding potential jurors from the panel at trial — a ban laid down in the 1986 decision in Batson v. Kentucky. In a Georgia death penalty case, defense lawyers discovered evidence, after the trial, that the prosecutor had created black-juror strike lists contradicting claims of being neutral on race during seating of the jury.

In the other new criminal case, Lockhart v. United States, the Court will spell out when a mandatory minimum prison sentence is required under a federal law against child pornography, based on a prior conviction under state law for sexual abuse. The federal appeals courts are divided on the scope of that requirement.

The Justices’ move into the Texas Senate redistricting case comes fourteen years after Justice Clarence Thomas, in Chen v. City of Houston in May 2001, was the sole member of the Court who went on record in favor of sorting out “what measure of population should be used for determining whether the population is equally distributed among the districts.”

The usual choice considered by legislatures is to make districts more or less equal by dividing up shares of the state’s total population, or, as an alternative, to draw lines based upon some measure of the voting members of the population — such as the numbers actually registered to vote.

Two Texas voters, who wound up in state senate districts where they say their votes will count less than the votes in another district even though each of those districts has about the same total number of people, argued that this contradicts the “one-person, one-vote” guarantee of voter equality. Their votes would have counted equally, they contended, if the legislature instead had used voting-age population as the measure.

The voters, Sue Evenwel, who lives in Titus County in Senate District 1, and Edward Pfenninger, who lives in Montgomery County in District 4, said their votes were diluted because of the disparity between the two measures as applied to those districts, where more of the people vote proportionally. Both districts are rural. Other, more urban districts have proportionally fewer registered voters, so the redistricting plan based on actual population is said to give those who do vote more weight — that is, fewer of them can control the outcome.

“A statewide districting plan that distributes voters or potential voters in a grossly uneven way,” the two voters told the Court, “is patently unconstitutional under Reynolds v. Sims and its progeny.”

The voters do not argue that legislatures should be forbidden ever to use total population as the districting measure, but only when it results in the kind of disparity, compared to a plan based on voters’ numbers, that resulted in Texas.

At the theoretical core of this dispute is the theory of representation that a legislature should follow. Texas, supported by the lower court in the new cases, argued that this is a question of how to define democracy, a question that it said should be left to the people’s elected representatives, and not decided by the courts. The state also contended that the Supreme Court had said explicitly in a 1966 decision (Burns v. Richardson) that the choice of population measure was a matter for legislatures.

The Justices, while taking on new cases for decision, also denied review on Tuesday of a number of significant controversies, including these:

** Whether the mental disability of an individual convicted of murder, and claiming to be too handicapped to be executed, should be analyzed as of the time of the crime, or many years later when the issue arises anew. That was the question in Murphy v. Texas.

** Whether it is unconstitutional for a local government to shift to out-of-state companies most of the cost of disposing of unsold prescription drugs that may pose a safety or health hazard. The issue in Pharmaceutical Research and Manufacturers of America v. Alameda County tested the scope of the Constitution’s Commerce Clause to local recycling ordinances.


Posted in Foster v. Chatman, Lockhart v. U.S., Evenwel v. Abbott, Cases in the Pipeline, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Major test on voter equality set for review, SCOTUSblog (May. 26, 2015, 12:14 PM), http://www.scotusblog.com/2015/05/major-test-on-voter-equality-set-for-review/




http://www.scotusblog.com/2015/08/symposium-evenwel-v-abbott-and-the-constitutions-big-data-problem/

Symposium: Evenwel v. Abbott and the Constitution’s big data problem
Nathaniel Persily Guest
Posted Mon, August 3rd, 2015


Nathaniel Persily is the James B. McClatchy Professor of Law at Stanford University Law School. (For a more developed version of the argument presented here, please see Nathaniel Persily, The Law of the Census: How to Count, What to Count, Whom to Count, and Where to Count Them, 32 Cardozo L. Rev. 755, 775-81 (2011).)

The plaintiffs in Evenwel v. Abbott deserve credit for highlighting an unappreciated feature of our system of representation and exposing a gap in the jurisprudence of one person, one vote. Their constitutional argument, however, is academic, at best, and at worst, dangerous and destabilizing for the redistricting process and the U.S. Census. Leaving aside the weighty and contested philosophical arguments concerning the proper basis for legislative representation, a constitutional rule of redistricting based on citizenship or eligible voters presents insurmountable logistical difficulties. These difficulties are of constitutional import because no national database of citizenship exists at the level of granularity necessary to draw legislative districts that comply with one person, one vote.

First some basics on the redistricting process. With each decennial census virtually every level of government in the country – from Congress to state legislatures to school boards and any other manner of local government – must redraw their districts to adjust to population shifts the Census reveals. The redistricting dataset released by the Census (the so-called PL 94-171 datafile) and used by virtually all jurisdictions in the United States includes information regarding the total population and voting-age population, as broken down by race. The data are derived from the Census form we now receive every ten years, which only asks questions as to race/ethnicity, age, gender, and owner/renter status of the home. It does not ask anything about citizenship, voter registration, or anything comparable.

From where, then, do all of the data concerning citizenship we hear so much about come? They come from a yearly survey of 2.5% of American households called the American Community Survey (ACS). As one of many surveys conducted by the Census, the ACS contains a host of questions covering everything from a house’s plumbing, internet connectivity, and tax rates, to its occupants’ citizenship, marital, employment, and veteran status. The Census releases results from each year’s ACS, as well as averages for the previous three- or five-year period. Whenever you see citizenship rates reported in the news, the ACS is usually the source. Unlike the decennial census, the ACS is not mandated by the Constitution, and Congress could terminate or defund it at any time, as some representatives have threatened.

The ACS does not produce a dataset, however, that is appropriate for redistricting. First, because they sample such a small share of the population, the yearly surveys do not produce data at sufficient granularity for redistricting, namely the census block or neighborhood level, akin to the decennial census. Just like other public opinion polls, a survey like the ACS can paint, in broad outlines, the profile of a state or large subsections of it. But as you move down to your neighborhood, a 2.5% national survey will often not include enough people from your immediate vicinity in order to create accurate estimates of citizenship rates. Any such estimates, therefore, come with margins of error, just like other public opinion polls.

Because any yearly ACS is too small and inaccurate to be used for redistricting purposes, three- and five-year averages might give better estimates of the citizenship rates at smaller levels of geography. Even those statistics, though, are not released at the census block level, which is the building block for redistricting plans. Even if they were, they do not provide estimates of the citizenship population at the time of redistricting – that is, they are averages of earlier years and give estimates of what the citizenship rates have been, not what they are at the time districts need to be drawn. Unlike the decennial census, which presents a snapshot of the population, the ACS is more like a movie, highlighting general movements in the population data viewable only on the big screen. (To make matters even more complicated, those ACS averages are derived from the earlier census geography – i.e., the census tracts as they were drawn for the census ten years earlier – not the census immediately preceding the redistricting.)

The other population base for redistricting put forward by the Evenwel appellants is registered voters. With this suggestion, they appear on more familiar ground, given that the Supreme Court in Burns v. Richardson (1966), upheld, though clearly did not mandate, the use of registered voter data for redistricting purposes. Burns somewhat reluctantly sanctioned the use of registered voters as the population base, only because in that context, “registered voters was chosen as a reasonable approximation of both citizen and voter population.” Requiring as a constitutional rule redistricting on the basis of equal numbers of registered voters comes with its own set of serious problems, however.

First, as with a “citizen census,” the Constitution does not require voter registration. In fact, North Dakota does not require its voters to register and nothing prevents other states from following suit. Another fourteen states allow for Election Day registration; for them, the number of registered voters in a given jurisdiction can fluctuate considerably depending on whether one uses data before or after the election.

Indeed, the extreme variability in voter registration data for any jurisdiction is a key reason such data should not be used for redistricting purposes. The size and accuracy of a voter registration list will often depend on the proximity to an election. When voter registration drives are in full force, especially for an impending presidential election in a battleground state, the number of registered voters can increase substantially. If the next election is a congressional election or even an off-year local election, the number of registered voters in a jurisdiction might be smaller or out of date. The voter registration list is, in this sense, a moving target. If it is to be used for redistricting, the decision as to which voter list to use, and when, can lead to dramatically different outcomes. (Expressing caution as it blessed the use of registered voters, Burns recognized this problem: “[F]luctuations in the number of registered voters in a given election may be sudden and substantial, caused by such fortuitous factors as a peculiarly controversial election issue, a particularly popular candidate, or even weather conditions.”

The inaccuracy of voter rolls, moreover, has been a continuing source of frustration for election administrators and should caution against using voter registration as a population base for redistricting. As the Report of the Presidential Commission on Election Administration, for which I served as Senior Research Director, detailed, roughly eight percent or sixteen million voter registration records are invalid or significantly inaccurate. But the degree of inaccuracy varies considerably by state and over time. For some states, as many as fifteen percent of the names on their voter registration list constitute “deadwood”: names of people who have likely moved or died since they were registered at the given address. As a result, states conduct periodic purges of their voter rolls, as regulated by the National Voter Registration Act (NVRA). Whether a jurisdiction redistricts on the basis of a list before or after a purge can lead to different results. To guard against disenfranchisement by way of purging, furthermore, states retain different lists of voters: an active voter list of those who have regularly voted and an inactive voter list, which includes people who have missed voting in the last few elections. As with the ACS citizenship data, mandating redistricting on the basis of “registered voters,” as the Evenwel appellants urge, does not settle the question concerning the proper population base for redistricting: It would require further decisions as to which voter registration list, at which time.

These points concerning the inaccuracy and variability of the potential alternative data sources for redistricting will likely receive less attention in Evenwel than familiar constitutional arguments concerning the proper interpretation of the Fourteenth Amendment. But these seemingly technical and logistical issues should foreclose the constitutional debate. Current data on citizenship or on registered voters is simply too inaccurate or contested to be used in redistricting. Unless the Justices are prepared to mandate a new kind of “citizen census” or to constitutionalize the voter registration process, then they should leave it to the states to draw their districts using the most accurate data available.

Posted in Evenwel v. Abbott, Featured, One person, one vote and Evenwel

Recommended Citation: Nathaniel Persily, Symposium: Evenwel v. Abbott and the Constitution’s big data problem, SCOTUSblog (Aug. 3, 2015, 12:01 AM), http://www.scotusblog.com/2015/08/symposium-evenwel-v-abbott-and-the-constitutions-big-data-problem/




http://www.scotusblog.com/2015/07/symposium-taking-voter-equality-seriously/

Symposium: Taking voter equality seriously

Ilya Shapiro Guest
Posted Wed, July 29th, 2015


Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. He filed an amicus brief supporting the jurisdictional statement in Evenwel and will be filing another at the merits stage. Shapiro became a U.S. citizen just last year. Like most immigrants, he does a job few native-born Americans will: defending the Constitution.

The issue in a nutshell

The “one person, one vote” standard (OPOV) has become an axiomatic part of election law: Whatever mischief happens during the decennial redistricting process, states can’t draw districts with wildly disproportionate populations, such that a vote in lightly populated districts is worth much more than a vote in heavily populated districts.

It’s an easy principle to understand. You can avoid getting tied into knots determining whether a given regulation is “congruent and proportional” to the problem it addresses – and you can stay out of the thicket of “undue burdens” and other jurisprudential monstrosities.

Instead, OPOV solves the old “rotten borough” problem, where some British parliamentarians represented constituencies where very few – or no! – people lived. This became an issue in the United States as the country urbanized but depopulated rural areas maintained disproportionate voting power in state legislatures and congressional delegations. The Supreme Court ruled in the 1964 case of Reynolds v. Sims that political map-designers can’t dilute the franchise that way and instead must draw districts with roughly equal numbers of people.

In other words, each person’s vote should be equal, as guaranteed by the Constitution; nobody gets more votes based on wealth, education, occupation, sex, race, or geography. None of this is or should be controversial.

But a funny thing happened on the way to electoral utopia: just as the Industrial Revolution fomented radical population shifts, modern immigration patterns have created disparities in the number of voters per district. Just as it was intolerable for a rural district with 500 voters to have the same representation in a state legislature as an urban district with 5000 voters, it’s now constitutionally suspect to have that disparity between a heavily (non-citizen) foreign-born district and one with mostly native-born citizens. In each case, the Supreme Court must intervene to maintain voter equality.

While the specific case now before the Court, Evenwel v. Abbott, doesn’t present the stark 10:1 ratio in voting power I just stylized, the disparities are nonetheless significant: as detailed by the challengers to Texas’s districting map detail (see tables on pages 8-10 of their jurisdictional statement), some state senate districts deviate by as much as fifty percent from the ideal. That means that twice as many voters may elect a state senator in one district as in the smallest district.

In sum, regardless of one’s views of Evenwel’s particular facts, it has to be the case that disparities between the number of voters in state districts raises a constitutional issue. Otherwise, even 10:1 or 100:1 ratios wouldn’t be a problem. And if all we’re talking about here is line-drawing rather than first principles, then the challengers win.

Cato’s briefing

I don’t want to simply summarize the challengers’ arguments, so let me focus instead on two points that Cato is developing for our Evenwel merits brief: (1) the inaptness of the so-called “federal analogy” (which I’ll explain); and (2) that when the Voting Rights Act (VRA) conflicts with the Constitution, the latter trumps.

The federal analogy
When the Supreme Court was asked more than fifty years ago to uphold grossly disproportionate state legislative districts, Alabama argued that states should be allowed to implement a “little federal system” that would be “framed after the Federal System of government—namely one senator in each county of the state.”

The Court correctly realized then that “the federal analogy [is] inapposite and irrelevant to state legislative districting schemes.” After all, the states are “separate and distinct governmental entities which have delegated some, but not all, of their formerly held powers to the single national government,” whereas “[p]olitical subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities, [but rather] have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” Further, because “[t]he system of representation in the two Houses of the Federal Congress . . . [arose] from unique historical circumstances,” “the Founding Fathers clearly had no intention of establishing a pattern or model for the apportionment of seats in state legislatures when the system of representation in the Federal Congress was adopted.”

The Court is now presented with a new, twenty-first-century federal analogy, this time relating to the other chamber of Congress. Texas and its supporters are arguing that because the Constitution allocates congressional representatives by total population rather than voter population, states should be able to do the same for their own legislative districts.

This federal analogy works no better than the last one. Careful study of the original public meaning and history of both Section 2 of Article I and Section 2 of the Fourteenth Amendment show that the rule they established is one for dealing with separate states that possess a great deal of legal autonomy – first and foremost in defining for themselves who shall have the right to vote. Once again, states are asking that they be allowed to treat their legislative districts as if they were separate states.

Since the federal rule provides no support for state inequalities, we’re left back at the same simple principle the Court has consistently upheld, that “[t]he conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”

The Voting Rights Act vs. the Constitution
Another argument has been put forward to justify violating OPOV – that Section 2 of the VRA requires gerrymandering state legislative districts to create majority-Hispanic districts where possible, and that this “compelling interest” justifies the effect of unequal voter strength. This argument fails because even if the VRA does ask states to do such gerrymandering, such legislation can’t trump the Constitution. Where the VRA conflicts with the Fourteenth Amendment, the VRA must give way.

Let me explain. States are now caught in the inevitable trap of (1) maintaining majority-minority districts under complex, overlapping legal precedents and (2) administering electoral schemes that do little to advance racial equality while doing much to undermine voter equality. In the background of this conflict, there lurks a cacophony of precedent and oft-conflicting court-administered standards that have arisen from cases interpreting Section 2 of the VRA. Basic constitutional guarantees of equal protection inherent in the Fourteenth Amendment – such as OPOV – get lost in this thicket.

Avoiding racial discrimination is particularly difficult in jurisdictions where “total population” and “citizens of voting age population” (CVAP) – standard metrics for evaluating whether a district violates OPOV – diverge due to varied concentration of non-citizens. As I’ve described before, jurisdictions navigating between the VRA’s Scylla and the Constitution’s Charybdis are bound to wreck individual rights – here, voter equality – on judicial shoals.

Over the years, the Supreme Court has repeatedly recognized the potential for devaluing individual votes by drawing majority-minority districts in a manner that accords greater weight to minority votes in protected districts and diminishes the relative weight of voters elsewhere. In 2000, in Chen v. City of Houston, the Fifth Circuit also recognized this danger while ultimately ruling the other way. Nevertheless, here the special district court adhered to that flawed lower-court precedent – refusing to acknowledge CVAP as integral to OPOV and thus a required element of equal protection.

At least one Justice – Justice Clarence Thomas, dissenting from the denial of certiorari in the Chen case in 2001 – has already recognized the urgency of the problem: “Having read the Equal Protection Clause to include a ‘one-person, one-vote’ requirement, and having prescribed population variance that, without additional evidence, often will satisfy the requirement, we have left a critical variable in the requirement undefined.”

The VRA’s Section 2 and the Fourteenth Amendment have thus reached an impasse that has been highlighted by a conflict among lower courts’ application of OPOV. (The Fifth Circuit has held that states can choose either total population or CVAP on the grounds that the Equal Protection Clause is ambiguous, the Fourth Circuit reached the same conclusion but through the “political question” doctrine, and the Ninth Circuit held that states can only use total population, in a split 2-1 decision that provoked a strong dissent by Judge Kozinski.) It’s thus heartening that the Court took up Evenwel – and hopefully it will resolve that conflict once and for all by explaining the proper use of different population metrics. The noble principle of OPOV needs to be saved from the legal morass of Voting Rights Act jurisprudence.

Posted in Evenwel v. Abbott, Featured, One person, one vote and Evenwel

Recommended Citation: Ilya Shapiro, Symposium: Taking voter equality seriously, SCOTUSblog (Jul. 29, 2015, 12:01 AM), http://www.scotusblog.com/2015/07/symposium-taking-voter-equality-seriously/