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

Tue May 26 11:16:08 PDT 2015

The Evenwel case is about state, not congressional, redistricting. And 
the source of the one person, one vote rule in the two contexts is not 
the same. Nonetheless, the logic of the decision in Evenwel will likely 
carry over to congressional redistricting.

On 5/26/15 11:12 AM, Douglas Johnson wrote:
>
> For reference:
>
> I went back to the data from the California Independent Redistricting 
> Commission 
> <http://wedrawthelines.ca.gov/downloads/meeting_handouts_082011/crc_20110815_5appendix_3.pdf> 
> and just posted in theCalifornia Voting Rights Act Facebook page 
> <http://www.facebook.com/vraofca> how big a change this would represent:
>
> In California, Congressional Districts are equal in total population 
> (within 1 person), but vary widely in eligible voters (as defined by 
> Citizen Voting Age Population). At the extremes, Congressional 
> District 1 has 521,232 eligible voters, while CD 40 has only 261,568 
> -- a two-to-one difference.
>
> CD 1 is in the far north of the state, while CD 40 is in Los Angeles 
> County and encompasses Paramount, Downey, Bell, Maywood, and 
> neighboring small cities.
>
> -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
>
> *From:*law-election-bounces at department-lists.uci.edu 
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of 
> *Samuel Bagenstos
> *Sent:* Tuesday, May 26, 2015 10:35 AM
> *To:* Pildes, Rick
> *Cc:* <law-election at department-lists.uci.edu> 
> (law-election at department-lists.uci.edu)
> *Subject:* Re: [EL] The Supreme Court's Decision to Decide Whether 
> It's One Person, One Vote or One Voter, One Vote
>
> 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 <mailto: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 <tel:212%20998-6377>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu 
> <mailto:Law-election at department-lists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> -- 
>
> Samuel Bagenstos
>
> sbagen at gmail.com <mailto:sbagen at gmail.com>
>
> Twitter: @sbagen
>
> My University of Michigan homepage: 
> http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150526/a39d3be2/attachment.html>