[EL] The Supreme Court's Decision to Decide Whether It's One Person, One Vote or One Voter, One Vote
Rick Hasen
rhasen at law.uci.edu
Tue May 26 11:59:05 PDT 2015
I'm not disagreeing, just saying that Evenwel alone likely will not
settle the issue.
On 5/26/15 11:56 AM, Samuel Bagenstos wrote:
> On the Congress-versus-state-legislature point: If the Court says in
> Evenwel that CVAP, or something like it, is the relevant baseline in
> state redistricting, I could certainly write the brief that says that
> a different rule applies in congressional redistricting. But the
> other side would have a lot to work with, too, starting with the text
> of Article I and extending through language in Wesberry and subsequent
> cases that looks a lot like the language they'll rely on in Reynolds
> and subsequent cases. I would expect that, /if the Court rules that
> CVAP or something like it is the relevant baseline in state
> redistricting/, the same Court will apply the same rule to
> congressional redistricting.
>
> On Tue, May 26, 2015 at 2:37 PM, Douglas Johnson
> <djohnson at ndcresearch.com <mailto:djohnson at ndcresearch.com>> wrote:
>
> I agree Rick is correct about the different population basis for
> congressional vs other districts – thanks for the reminder.
>
> But the point remains the same, if slightly more limited:
>
> The largest State Assembly District in California (AD78 in San
> Diego) has 352,199 eligible voters (defined by CVAP) while the
> smallest (AD53 in Los Angeles) has 164,102: a 2.15 to 1 margin.
>
> -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 <tel:310-200-2058>
>
> *From:*law-election-bounces at department-lists.uci.edu
> <mailto:law-election-bounces at department-lists.uci.edu>
> [mailto:law-election-bounces at department-lists.uci.edu
> <mailto:law-election-bounces at department-lists.uci.edu>] *On Behalf
> Of *Rick Hasen
> *Sent:* Tuesday, May 26, 2015 11:16 AM
> *To:* law-election at department-lists.uci.edu
> <mailto: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
>
> 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 <tel:310-200-2058>
>
> *From:*law-election-bounces at department-lists.uci.edu
> <mailto: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>
> <mailto:law-election at department-lists.uci.edu>
> (law-election at department-lists.uci.edu
> <mailto: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>
>
>
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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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> --
>
> 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 <tel:949.824.3072> - office
>
> 949.824.0495 <tel:949.824.0495> - fax
>
> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
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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
--
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
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