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

[Lloyd Mayer]

A minor legal correction - 18 U.S.C. section 611 generally bars noncitizens
from voting in an election for federal office.  Whether that statute is
constitutional is an open question, however - see Derek Muller's blog post
<http://excessofdemocracy.com/blog/2013/6/is-a-federal-ban-on-alien-voting-unconstitutional>
on this point.

Lloyd Hitoshi Mayer <http://law.nd.edu/directory/lloyd-mayer/>
Professor of Law & Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, IN 46556-0780
campus address:  3155 Eck Hall of Law
(574) 631-8057/cell:  (574) 598-0740/fax: (574) 631-8078
SSRN Author Page
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=504775>

On Thu, Jun 4, 2015 at 2:27 PM, Richman, Jesse T. <JRichman at odu.edu> wrote:

>  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
>
> 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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