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

[Thomas J. Cares]

At this point, I would think an international norm is also at play, even if
not-explicitly. Are there republics in the world that apportion based on
eligible voters, not residents, or citizens. I wonder if there's good
research on that.

Imagine if (even for congress) it were proportioned based on voters who
turned out in the last congressional election; then all representatives
might have an interest in bolstering turn out, instead of suppressing it
(north carolina, cough cough). I'm not proposing that. I'm just saying to
imagine it.

-Thomas Cares

On Tue, May 26, 2015 at 11:12 AM, Douglas Johnson <djohnson at ndcresearch.com>
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 the California 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
>
> 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> 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
>
>
>
>
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>
>
>
>
> --
>
> Samuel Bagenstos
>
> sbagen at gmail.com
>
> Twitter: @sbagen
>
> My University of Michigan homepage:
> http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
>
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