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

Tue May 26 12:17:20 PDT 2015

It is worthwhile to note that the citizenship does not come from the
ten-year enumeration of the population. It comes from the American Community
Survey, which is a survey, albeit a large one. The CVAP estimates would
likely come from the five-year aggregation of single-year surveys, so for
2021, CVAP might be the percentage citizens among the voting-age population
from the 2015-2010 surveys, projected onto the 2020 enumeration. Further
complicating issues is that the past ACS surveys would not be immediately
weighted to the 2020 census, which will cause further estimation errors. The
five year estimates are at the block group level, so one will have
difficulty obtaining precise CVAP estimates for small districts (NH's lower
chamber leaps to mind).  If the court wants bright lines, it will not find
them in these data. I can easily imagine a war of experts over how to
construct citizenship estimates.

The ACS has recently been under attack from Republicans in Congress, so it
entirely possible that at a future point in time there will be no ACS and no
citizenship estimates from it. The constitution only requires a census of
the population, not the survey products that produce interesting statistics
like citizenship. So, it strikes me that the court can't reasonably require
citizen voting-age population as a basis for apportionment since there is no
requirement in the constitution that the federal government collect the
information.

============
Dr. Michael P. McDonald
Associate Professor
University of Florida
Department of Political Science
223 Anderson Hall
P.O. Box 117325
Gainesville, FL 32611

phone:   352-273-2371 (office)
e-mail:  dr.michael.p.mcdonald at gmail.com                
web:      <http://www.electproject.org/> www.ElectProject.org 
twitter: @ElectProject

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jurij
Toplak
Sent: Tuesday, May 26, 2015 3:00 PM
To: Thomas J. Cares
Cc: Election Law
Subject: Re: [EL] The Supreme Court's Decision to Decide Whether It's One
Person, One Vote or One Voter, One Vote

For those interested in what other countries do:

In many of them districts must have equal populations, but in many of them
districts must have equal numbers of voters, or equal numbers of citizens. 

The most interesting criteria is used in Australia: Australian redistricting
commission (called Redistribution Commission) does not use current data. It
uses population projections for three years and six months after the
redistricting takes place. Equality of population should be achieved halfway
through the seven-year Australian districting cycle. This way Australia also
avoids wide discrepancies at the end of the seven-year delimitation cycle.
Source: http://aceproject.org/ace-en/topics/bd/bdb/bdb05/bdb05a

In my book "Comparative Redistricting: A Comparative Study of Election
District Delimitation" I described redistricting process and criteria in
Germany, UK, Australia, and some other countries.
http://www.amazon.com/Comparative-Redistricting-Election-District-Delimitati
on/dp/3846599506

For redistricting criteria abroad see also Bernard Grofman, Bernard and Lisa
Handley (Eds.) "Redistricting in Comparative Perspective"
https://global.oup.com/academic/product/redistricting-in-comparative-perspec
tive-9780199227402?cc=si
<https://global.oup.com/academic/product/redistricting-in-comparative-perspe
ctive-9780199227402?cc=si&lang=en&> &lang=en&

Jurij

  _____  

From: law-election-bounces at department-lists.uci.edu
<mailto:law-election-bounces at department-lists.uci.edu>
[law-election-bounces at department-lists.uci.edu] on behalf of Thomas J. Cares
[Tom at tomcares.com]
Sent: Tuesday, May 26, 2015 8:21 PM
To: Douglas Johnson
Cc: Election Law
Subject: Re: [EL] The Supreme Court's Decision to Decide Whether It's One
Person, One Vote or One Voter, One Vote
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
<mailto: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 <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 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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