[EL] The Supreme Court's Decision to Decide Whether It's One Person, One Vote or One Voter, One Vote

[Samuel Bagenstos]

Rick,

Could you say more about the basis for the prediction in your last sentence?

Best,

Sam

On Tue, May 26, 2015 at 1:30 PM, Pildes, Rick <pildesr at exchange.law.nyu.edu>
wrote:

> The Supreme Court’s decision today to decide what “one person, one vote”
> actually means is not all that surprising, at least to many of us.  In all
> the years since the Court recognized that election districts must have
> equal populations, the Court never squarely resolved what the baseline
> ought to be for determining “equality” — must districts have equal numbers
> of residents or equal numbers of eligible voters (which would exclude the
> young, non-citizens, felons unable to vote)?  In 1966, in the earliest days
> of the reapportionment revolution, the Court did hold that states could
> choose between equalizing population or eligible voters (*Burns v.
> Richardson, *384 U.S. 73 (1966)).  But a lot has happened in the
> maturation of the law in the ensuing 50 years; in general, the Court has
> placed greater emphasis on the use of more concrete, precise standards.
>
> Moreover, there is something odd about such a basic constitutional
> standard under the Equal Protection Clause as the principle of political
> equality that’s reflected in the “one person, one vote” standard being so
> ill-defined that states are free to choose whether it’s persons or voters
> that matter for purposes of equality.  Few constitutional standards work
> that way.  In practice, most states have used residents, not voters, for
> the baseline, but the doctrine leaves open the possibility that states
> could use other baselines.  And as long as the baseline remains
> constitutionally undefined, states can manipulate the districting system by
> choosing one baseline over another in order to achieve various partisan or
> political ends.  The difference can be significant, especially in areas of
> the country — such as Texas, where this case comes from — with large
> numbers of non-citizen residents.
>
> In addition, since *Burns*, we have had the emergence of the Voting
> Rights Act requirements concerning how districts must be designed to avoid
> diluting the vote of particular minority groups.  To ensure political
> equality in this arena, the baseline for drawing districts has been voters
> — not residents.  Thus, to decide whether a district provides an “equality
> opportunity to elect” for minority voters, the courts do not look at the
> total number of minority residents — they look to the total number of
> voting-age eligible residents.  So there is at least some superficial
> tension between the VRA, where voters are the baseline, and the Equal
> Protection standard, where most states use population as the baseline.
> That provides another reason the Court might want to clarify what the right
> baseline is under the Equal Protection Clause.
>
> Now that the issue is squarely before the Court, my view is that the Court
> ought to adopt a clear, uniform standard to end uncertainty and potential
> manipulation regarding what counts as the baseline for the requirement of
> equality between election districts.  Once the Court confronts the
> arguments on that question, I tend to think the Court will conclude that
> the best answer is one person, one vote — that it is the requirement of
> equal numbers of residents (not voters) per district that is critical for
> constitutional purposes.
>
>
>
>
>
> Best,
>
> Rick
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square South, NY, NY 10012
>
> 212 998-6377
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>



-- 
Samuel Bagenstos
sbagen at gmail.com
Twitter: @sbagen
My University of Michigan homepage:
http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150526/d530242b/attachment.html>