[EL] Should Non-Citizens be the Main Issue for Legal Challenge?

[Richman, Jesse T.]

Much of the discussion so far seems to assume that non-citizens are by definition non-voters.  However, something that could be important in this discussion is the fact that there is no federal mandate barring non-citizens from serving as voters in elections.  There is no federal bar preventing a state from creating rules that allow non-citizens to vote in state and federal elections, and there is (very old) case law to support allowing states to enfranchise non-citizens.  Indeed, for the first 130 or so years of the United States, this is exactly what some states did (Aylsworth 1931 “The Passing of Alien Sufferage”  http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=8916639&fileId=S0003055400111669).

Potentially even more significant than the non-citizen voting exclusion, a decision to require the standard that “Each eligible voter should have equal voting power over the decision of who is elected” would substantially reduce the influence of geographic areas with more children relative to areas with fewer children.  Children are by far the largest group not eligible to vote in the US.  For instance in Florida retiree-heavy parts of the state would gain power relative to parts of the state with fewer retirees.  How this plays politically depends upon the confluence of two intersecting factors.  Some Democratic constituencies (Hispanics) have a relatively high birth rate.  But other Democratic constituencies (gays, single women) have low birth rates. How this plays out in terms of representational impact would vary by state.

Focusing in on Texas, in the 114th Congress the five Texas districts with the smallest portion of the population 18 and older are all represented by Democrats.  The 19 with the largest population percentage 18 and older are all represented by Republicans.

Nationwide, however, this pattern does not seem to hold.  The mean percentage of adults in districts represented by a Democrat in the 113th Congress was 76.48 while the mean percentage of adults in districts held by Republicans was 76.10.  Thus, although Texas Republicans would seem set to benefit from apportionment that excluded non-adults, Republicans nationwide seem substantially less likely to benefit.

For the 113th Congress and ACS 5 year estimates, here are the ten districts with the smallest adult population (the percent 18 and older in the district population is shown next to the district name.  By my count Republicans held just three of these seats in the 113th Congress.


Congressional District 33 (113th Congress), Texas

67.5

Congressional District 28 (113th Congress), Texas

67.7

Congressional District 7 (113th Congress), Arizona

67.8

Congressional District 21 (113th Congress), California

67.8

Congressional District 15 (113th Congress), Texas

67.8

Congressional District 4 (113th Congress), Utah

67.8

Congressional District 1 (113th Congress), Utah

67.9

Congressional District 29 (113th Congress), Texas

68

Congressional District 16 (113th Congress), California

68.5

Congressional District 3 (113th Congress), Utah

68.5


And here are the ten districts with the largest adult population.  By my count Republicans held just three of these seats in the 113th Congress.

Congressional District 16 (113th Congress), Florida

82.3

Congressional District 7 (113th Congress), Massachusetts

82.3

Congressional District 11 (113th Congress), Florida

82.8

Delegate District (at Large) (113th Congress), District of Columbia

83

Congressional District 13 (113th Congress), Florida

83

Congressional District 22 (113th Congress), Florida

83

Congressional District 28 (113th Congress), California

83.2

Congressional District 7 (113th Congress), Washington

84

Congressional District 12 (113th Congress), California

87.1

Congressional District 12 (113th Congress), New York

88.6



Jesse Richman
Associate Professor of Political Science
Old Dominion University

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Douglas Johnson
Sent: Thursday, June 04, 2015 12:44 PM
To: 'Rick Hasen'; law-election at uci.edu
Subject: Re: [EL] Politico article and Census counting citizens

The “big data problem” part of Dr. Persily’s article seems incorrect. For one thing, the column opens with a factually incorrect statement about the current Census: “[T]hat data set counts just two things: the total number of people, and the number of people over the age of 18.”  As Dr. Persily no doubt knows, the current Census short form also counts the members of various ethnic groups [I suspect deleting a reference to that was an editor’s error].

But that’s a secondary issue. The heart of the article’s headline-focused argument is near the end:
“The fact that no accurate count of citizens exists should be the end of the matter. Unless the justices are prepared to mandate a new kind of citizen census — one never contemplated by the Constitution — then they should leave it to the states to draw their districts using the most accurate data available. “
The Constitution, however, also did not contemplate counting voting age population nor ethnicity, and both of those questions have been a part of the Census short form for decades. I see no reason why adding a citizenship question is more of a constitutional question than adding age and ethnicity questions were when they were added.

As Dr. Persily’s article lays out well, districting rules are (somewhat oddly) separated from apportionment rules, and the definition of “one person, one vote” is remarkably unspecified by the court.

But I would rebut the article’s main point by saying such an important policy question should not be by whether or not a question is included or excluded from the Census short form. The questions on the form have already ventured far from the Constitutionally mandated count of “persons,” and adding or excluding a citizenship question is a policy decision, not be a process nor legal challenge.

While I have not taken a position either way, I believe that since the Court made this decision justiciable, it would be good for the Court to answer what it meant when it said ‘one person, one vote,’ either

a)      Each elected official in a given elected body should represent an equal number of people?

or

b)      Each eligible voter should have equal voting power over the decision of who is elected?

Think of it this way: if a decision is made to add citizenship to the Census form, would proponents of answer (a) still want the decision left to the individual jurisdictions?

-          Doug

Douglas Johnson, Fellow
Rose Institute of State and Local Government
at Claremont McKenna College
douglas.johnson at cmc.edu<mailto:douglas.johnson at cmc.edu>
310-200-2058



Nate Persily on The Supreme Court’s Big Data Problem in Evenwel<http://electionlawblog.org/?p=73106>
Posted on June 3, 2015 7:16 am<http://electionlawblog.org/?p=73106> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico<http://www.politico.com/magazine/story/2015/06/the-supreme-courts-big-data-problem-118568.html#.VW8MBlxVhHx>:

Legitimate philosophical arguments can be made in favor of using one set of statistics over another — just as one could argue that some concerns in redistricting, such as keeping counties or communities intact, should override the concern for precise equality. A redistricting plan based on equal numbers of people, the system we have now, also ensures that the workload and constituent-related burdens of representatives are roughly equal. In effect, equal representation may be more important than equal voting power itself.

But the question that confronts the court as it prepares to hear the Evenwel case in the fall is whether the Constitution mandates the use of one statistic to the exclusion of all else. The fact that no accurate count of citizens exists should be the end of the matter. Unless the justices are prepared to mandate a new kind of citizen census — one never contemplated by the Constitution — then they should leave it to the states to draw their districts using the most accurate data available. The one person, one vote rule isn’t broken, and the Supreme Court shouldn’t try to fix it.





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