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

[Justin Levitt]

I'm not sure whether this is related to Sam's question or not.

I know that several states adjust their apportionment base in various 
ways in an attempt to capture permanent residents, rather than transient 
populations.  But I don't know of _any_ state or local jurisdiction that 
currently attempts to use eligible electors as a base for 
reapportionment.  Does anyone know of an example?  Off-list responses 
are welcome.

-- 
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

On 5/26/2015 10:34 AM, Samuel Bagenstos wrote:
> 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>
>
>
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>
>
>
> -- 
> 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
>
>
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