[EL] one person one vote

Mon Jun 1 12:33:25 PDT 2015

My point is that the plaintiffs (and many observers) are clearly mistaken about what the court meant by giving some voters a greater voice than others.  It does not refer to there being a different number of votes cast for different representatives, it means that the votes are cast for representatives of different numbers of people. An unequal voice is a vote cast for an unequal representative.  In order for the quote to make any sense, an equal voice means a single vote for a representative with an equal number of constituents.  A diminished vote is one cast for a representative with a greater number of constituents.

The problem as I see it is that these plaintiffs and others have adopted a fallacy from the Kozinski  dissent which looks at the equal vote weight wording and gives that wording a specific meaning  which is opposed to the constitutional principle that the court was articulating when it used that wording.  In doing so they argue that the court was articulating a right distinct from the principle of  equal population representation.  These quotes make clear that the court is not articulating a different standard, it is just using confusing language. The final ruling is clear anyway. Districts must be drawn with equal  population. 

(Pre-emptively rebutting a Burns argument, what the court allowed there was an exclusion of non-residents, and said the registered voter distribution had not been shown to deviate unconstitutionally from resident population distribution.)

Part of the problem is the court decisions have used the terms person, citizen and voter interchangeably while the constitution is very clear in the distinction between them.  However the plaintiffs want to argue that citizen or voter means something specific, other than person, in the reasoning but that the use of equal population as the standard doesn’t really mean population.

Here is one more quote, just for good measure.

 As we stated in Wesberry v. Sanders, supra:

"We do not believe that the Framers of the Constitution intended to permit the same vote-diluting discrimination to be accomplished through the device of districts containing widely varied numbers of inhabitants. To say that a vote is worth [377 U.S. 533, 564]   more in one district than in another would . . . run counter to our fundamental ideas of democratic government . . . ."  <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=377&invol=533#f41> 41 

And I’ll repeat part of an earlier one alone for emphasis.

 Nevertheless, Wesberry clearly established that the fundamental principle of representative government in this country is one of equal [377 U.S. 533, 561]   representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.

Clearly the court was articulating the same principle as the one controlling apportionment of representation to the states. When applying the principle it would be best to rely on the clear language of the constitution.

From: Rob Richie [mailto:rr at fairvote.org] 
Sent: Monday, June 01, 2015 11:36 AM
To: David Ely
Cc: Rick Hasen; law-election at UCI.EDU
Subject: Re: [EL] one person one vote

Thanks for providing these quotes David.

>From my perspective as an advocate of replacing geographic quotas that are based on winner-take-all voting rules with multi-winner systmes with non-winner-take-all rules where voters get to define their representation, I can find some of these quotes can make a cogent case against the status quo.

For instance, you cite the line: "It would defeat the principle solemnly embodied in the Great Compromise - equal representation in the House for equal numbers of people - for us to hold that, within the States, legislatures may draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a Congressman than others." 

Such language has led to the highly misleading phrase "one person, one vote" as a means to summarize these rulings. But as we all know, equal population of residents may in fact have little correlation to equality of eligible voters -- by margins of more than two to one even directly after an election, let alone  over the course  of a decade ad populations can shift dramatically. Thus, it  in fact is eminently easy in the current system to "draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a Congressman than others."  It's even easier when you get down to state legislative and local districts, with huge  disparities -- for instance, the great work of Prisoners of the Censu <http://www.prisonersofthecensus.org/> s has dramatic examples of distortions in voting power based on counting ineligible voters in prison for the purposes of apportionment.

Forms of proportional representation - -including the candidate-based systems like single transferable vote (STV) that we  support -- truly do lead to equality of votes for representatives. (With STV, the equality in fact is exact if voters choose to rank enough candidates.) So when look at the logic of the Court through that lens, it's quite different than when you do so through the limitation of winner-take-all rules.

I might also add that defenders of winner-take-all could still have true equality of voters if they really did embrace "one person, one vote" and end all prohibitions  against suffrage. I'm not holding my breath, but perhaps that's what those far-sighted founders really envisioned when they established this principle of equality of residents!

Rob

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On Mon, Jun 1, 2015 at 2:01 PM, David Ely <ely at compass-demographics.com> wrote:

Here is language from Reynolds v Simms that makes clear that when the court refers to giving equal weight to all votes, it is in fact intended as another way of describing equal population representation, required because  "our Constitution's plain objective" was that "of making equal representation [377 U.S. 533, 560] for equal numbers of people the fundamental goal . . . ."

In Wesberry v. Sanders, 376 U.S. 1 , decided earlier this Term, we held that attacks on the constitutionality of congressional districting plans enacted by state legislatures do not present nonjusticiable questions and should not be dismissed generally for "want of equity." We determined that the constitutional test for the validity of congressional districting schemes was one of substantial equality of population among the various districts established by a state legislature for the election of members of the Federal House of Representatives.

In that case we decided that an apportionment of congressional seats which "contracts the value of some votes and expands that of others" is unconstitutional, since "the Federal Constitution intends that when qualified voters elect members of Congress each vote be given as much weight as any other vote . . . ." We concluded that the constitutional prescription for election of members of the House of Representatives "by the People," construed in its historical context, "means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." We further stated:

"It would defeat the principle solemnly embodied in the Great Compromise - equal representation in the House for equal numbers of people - for us to hold that, within the States, legislatures may draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a Congressman than others." 37  
We found further, in Wesberry, that "our Constitution's plain objective" was that "of making equal representation [377 U.S. 533, 560]   for equal numbers of people the fundamental goal . . . ." We concluded by stating:
"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right." 38 

...

And our decision in Wesberry was of course grounded on that language of the Constitution which prescribes that members of the Federal House of Representatives are to be chosen "by the People," while attacks on state legislative apportionment schemes, such as that involved in the instant cases, are principally based on the Equal Protection Clause of the Fourteenth Amendment. Nevertheless, Wesberry clearly established that the fundamental principle of representative government in this country is one of equal [377 U.S. 533, 561]   representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State. Our problem, then, is to ascertain, in the instant cases, whether there are any constitutionally cognizable principles which would justify departures from the basic standard of equality among voters in the apportionment of seats in state legislatures. 

How can his possibly be read to elevate the equal vote weight theory above the equal population representation theory?

Sorry if I have become tiresome on the issue, but I can’t seem to let it go.

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