[EL] more news 5/26/15
Rick Hasen
rhasen at law.uci.edu
Tue May 26 15:32:30 PDT 2015
“Only Voters Count? Conservatives ask the Supreme Court to restrict
states’ rights and overturn precedent.”
<http://electionlawblog.org/?p=72797>
Posted onMay 26, 2015 3:31 pm
<http://electionlawblog.org/?p=72797>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis new piece
<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/05/evenwel_v_abbott_supreme_court_case_state_districts_count_voters_or_total.html>for
/Slate/. It begins:
For the second time in a year, the Supreme Court has agreed to wade
into an election case at the urging of conservatives. In both cases
it has done so despite the issue appearing to be settled by
long-standing precedent. Ina case expected to be decided
<http://www.scotusblog.com/case-files/cases/arizona-state-legislature-v-arizona-independent-redistricting-commission/?wpmp_switcher=desktop>next
month,/Arizona State Legislature v. Arizona Independent
Redistricting Commission/, conservatives asked the court to bar
states from usingindependent redistricting commissions
<http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2015/03/arizona_state_legislature_and_redistricting_commission_arguments_supreme.html>to
draw congressional lines. In a case the courtagreed to hear
<http://electionlawblog.org/?p=72739>Tuesday,/Evenwel v. Abbott/
<http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/>/,/conservatives
asked the court to require states to draw their legislative district
lines in a particular way: Rather than considering the total
population in each district, conservatives argue, the lines should
instead divide districts according to the number of people
registered or eligible to vote. Most states use total population for
drawing districts, which includes noncitizens, children, felons, and
others ineligible to vote.
In both Supreme Court cases, there is great irony in the fact that
they are being brought by conservatives, who usually claim to
respect precedents and states’ rights. The challengers are not only
asking the court to revisit issues that seemed to be settled by
decades-old precedent. If successful, these cases will undermine
federalism bylimiting states’ rights
<http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2015/03/arizona_state_legislature_and_redistricting_commission_arguments_supreme.html>to
design their own political systems.
A ruling favorable to conservatives in the/Evenwel/case, especially if
extended to congressional redistricting, could shift more power to
Republicans, who are more likely to live in areas with high
concentrations of voters.
It concludes:
The conservatives behind/Evenwel/don’t seem bothered much by the
intrusion on states’ rights that a decision in their favor would
engender. That’s because they are motivated more by the fact that
noncitizens are getting representation, and in their belief that
this is “diluting” the voting power of citizens. They arethe same
people <http://electionlawblog.org/?p=72739>who backed attacks on
affirmative action at the Supreme Court in the/Fisher v. University
of Texas at Austin/__case
<http://www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin/>and
successfully got the Supreme Court to strike down a key portion of
the Voting Rights Act in the/Shelby County v. Holder/
<https://supreme.justia.com/cases/federal/us/570/12-96/>case.
It is an agenda not about states’ rights but about getting the
Supreme Court to force states to empower conservatives and force
onto all of us the theories of representation and power they envision.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,residency
<http://electionlawblog.org/?cat=38>,Supreme Court
<http://electionlawblog.org/?cat=29>
Commissioner Goodman Responds to Commissioner Ravel on Partisan Bias
<http://electionlawblog.org/?p=72794>
Posted onMay 26, 2015 3:18 pm
<http://electionlawblog.org/?p=72794>byRick Hasen
<http://electionlawblog.org/?author=3>
Following up onCommissioner Ravel’s comments
<http://electionlawblog.org/?p=72709> about statements made by
Commissioner Goodman <http://electionlawblog.org/?p=72688>, Commissioner
Goodman sends along the following further response:
*COMMISSIONER GOODMAN:*
At last Thursday’s FEC meeting, a Commissioner proposed that the FEC
plow through its docket of cases within three months as a service to
the complainants. This proposal cannot be considered blind to the
fact that the FEC’s complainant class has filed three complaints
against a Republican or conservative respondent for every one
involving a Democratic or liberal respondent. Those who work inside
the FEC have seen how enforcement dockets and meeting agendas can be
manipulated to focus on particular respondents or to sequence
matters in ways that influence their substantive consideration. For
example, matters can be sequenced to advance or avoid nuanced
distinctions between cases involving similar facts and circumstances
leading to disparate treatment of similarly situated respondents.
Furthermore, some cases are more complicated than others. For
these reasons, I argued that any policy on enforcement procedure
must be fundamentally fair. The proposal at the meeting fell short
on this count and suffered from other technical deficiencies I
explained.
As I stated at last Thursday’s meeting, I believe the Commission
should expedite resolution of more cases for the benefit of the
citizens who find themselves entangled with the FEC’s enforcement
process. Accordingly, I recommended that the Commission expedite
consideration of all matters while affording Commissioners
reasonable discretion to consider matters subject to the following
timing factors:
(1) deferring action in a case that may be the subject of parallel
enforcement by another government agency;
(2) deferring action in a case that might affect ongoing litigation;
(3) timing action to avoid direct election intervention (similar to
the policy of the U.S. Department of Justice);
(4) considering several matters involving one respondent at one time
rather than piecemeal; and
(5) considering several matters involving different respondents but
raising the same legal issues at one time rather than separately
(risking disparate treatment).
Other Commissioners may have other timing considerations, and I
would be open to discussion about those. Whatever policy guides the
Commission’s timing, however, it must be fair and free from even the
perception that it will discriminate against those affiliated with a
specific political party or ideology.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“Ninth Circuit Overturns Lower Court Decision Enjoining Montana
Contribution Limits” <http://electionlawblog.org/?p=72792>
Posted onMay 26, 2015 3:14 pm
<http://electionlawblog.org/?p=72792>byRick Hasen
<http://electionlawblog.org/?author=3>
CLC
<http://www.campaignlegalcenter.org/news/press-releases/ninth-circuit-overturns-lower-court-decision-enjoining-montana-contribution>:
Today in/Lair v. Bullock/, the U.S. Court of Appeals for the Ninth
Circuitreversed
<http://www.campaignlegalcenter.org/sites/default/files/Lair%20Opinion%205.26.15.pdf>a
district court ruling that struck down Montana’s political campaign
contribution limits. The Ninth Circuit panel remanded the case to
the district court on the ground that the district court applied the
incorrect standard in analyzing the Montana’s limits.
The district court had permanently enjoined Montana’s limits on
contributions from individuals, PACs and political party committees
to state candidates on the basis that the limits are
unconstitutionally low.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“U.S. top court to hear ‘one person, one vote’ challenge in Texas
case” <http://electionlawblog.org/?p=72790>
Posted onMay 26, 2015 3:11 pm
<http://electionlawblog.org/?p=72790>byRick Hasen
<http://electionlawblog.org/?author=3>
Lawrence Hurley
reports<http://www.reuters.com/article/2015/05/26/us-usa-court-redistricting-idUSKBN0OB1IH20150526>for
Reuters.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Final Victory Against Restrictive Minnesota Campaign Finance Law”
<http://electionlawblog.org/?p=72788>
Posted onMay 26, 2015 2:28 pm
<http://electionlawblog.org/?p=72788>byRick Hasen
<http://electionlawblog.org/?author=3>
Press release <http://ij.org/mn-special-sources-limit-release-5-26-15>:
In a major victory for public participation in elections, Governor
Mark Dayton signed a bill last Friday that repeals Minnesota’s
“special sources limit.” Under the previous law, the first 12
individuals who contributed to a candidate were able to contribute
twice as much as subsequent donors.
The repeal followed a May 2014ruling
<http://ij.org/images/pdf_folder/minnesota/mn-campaign-speech_ruling-on-preliminary-injunction.pdf>by
U.S. District Court Judge Donovan Frank who found the law to likely
be unconstitutional and banned the Minnesota Campaign Finance Board
and Public Disclosure Board from enforcing the law. That victory was
part of alawsuit <http://ij.org/mn-special-sources-limit>by the
Institute for Justice and a coalition of donors and legislative
candidates, which sought to overturn the law and allow individual
contributors to donate to all campaigns for Minnesota state office.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Elections Technology: Nine Things Legislators May Want to Know”
<http://electionlawblog.org/?p=72786>
Posted onMay 26, 2015 2:25 pm
<http://electionlawblog.org/?p=72786>byRick Hasen
<http://electionlawblog.org/?author=3>
That’s the lead
story<http://www.ncsl.org/research/elections-and-campaigns/states-and-election-reform-the-canvass-may-2015.aspx>in
the latest issue of NCSL’s The Canvass.
Share
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Posted inelection administration <http://electionlawblog.org/?cat=18>
“SCOTUS to hear case that could set back Latino voting power”
<http://electionlawblog.org/?p=72784>
Posted onMay 26, 2015 2:17 pm
<http://electionlawblog.org/?p=72784>byRick Hasen
<http://electionlawblog.org/?author=3>
Zack Roth
reports<http://www.msnbc.com/msnbc/scotus-hear-case-could-set-back-latino-voting-power>for
MSNBC.
One interesting question is how any rule in /Evenwel/would match up with
requirements of Section 2 of the Voting Rights Act.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“The Man Behind the Newest Supreme Court Voting Case; Justices agree
to review ‘one person, one vote’ doctrine in Texas redistricting
case. “ <http://electionlawblog.org/?p=72782>
Posted onMay 26, 2015 2:15 pm
<http://electionlawblog.org/?p=72782>byRick Hasen
<http://electionlawblog.org/?author=3>
Tony Mauro
<http://www.nationallawjournal.com/home/id=1202727397771/The-Man-Behind-the-Newest-Supreme-Court-Voting-Case?mcode=1202615432992&curindex=0&slreturn=20150426170811>
Edward Blum, the mastermind behind successful U.S. Supreme Court
challenges to affirmative action and the federal Voting Rights Act,
has done it again—this time, in a case that could reshape the way
voting districts are drawn nationwide.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,Voting
Rights Act <http://electionlawblog.org/?cat=15>
A Reminder About Justice Alito and One Person One Vote
<http://electionlawblog.org/?p=72780>
Posted onMay 26, 2015 12:43 pm
<http://electionlawblog.org/?p=72780>byRick Hasen
<http://electionlawblog.org/?author=3>
With today’s SCOTUS decision to hear Evenwel, here’s anELB post
<http://electionlawblog.org/archives/004716.html>from Jan. 10, 2006:
JUDGE ALITO STATES WHAT HE MEANT BY ONE PERSON, ONE VOTE
CRITICISM IN 1985 JOB APPLICATION
Inthis Findlaw column
<http://writ.news.findlaw.com/commentary/20051130_hasen.html>, I
questioned what Judge Alito meant in his 1985 Reagan Administration
job application when he stated: “In college, I developed a deep
interest in constitutional law, motivated in large part by
disagreement with Warren Court decisions, particularly in the areas
of criminal procedure, the Establishment Clause and reapportionment
[of voting districts].”
Judge Alito has given his first answer today, in response to a
question from Sen. Kohl. Here is anexcerpt
<http://blogs.washingtonpost.com/campaignforthecourt/2006/01/alito_agrees_wi.html>from
the/Washington Post/‘s Campaign for the Court blog post on the topic:
The principle of “one man, one vote” is a fundamental
principle of constitutional law, Alito said.
“I don’t see any reason why it should be reexamined…..I
never was opposed to the one-person one-vote concept.”
So what was it that concerned him, asked Kohl.
He said his father, then working for the New Jersey
legislature, had brought to his attention the question of
“how exactly equal districts had to be.” It seemed that the
Supreme Court, at one point, was saying they had to be
exactly equal and “that would have wiped out” some of the
New Jersey re-mapping.
But one-man, one vote, “that’s very well settled,” said Alito.
Andmy Findlaw
column<http://writ.news.findlaw.com/commentary/20051130_hasen.html>from
Nov. 30, 2005 began:
In 1985, Samuel Alito – now a Supreme Court nominee – made a brief
comment criticizing the Supreme Court’s “one person, one vote”
caseson a job application
<http://news.findlaw.com/hdocs/docs/alito/111585stmnt2.html>for a
deputy attorney general position in the Reagan Administration.
Alito wrote, “In college, I developed a deep interest in
constitutional law, motivated in large part by disagreement with
Warren Court decisions, particularly in the areas of criminal
procedure, the Establishment Clause and reapportionment [of voting
districts].”
In response, Senator Joseph Bidentold FOX News
<http://www.usatoday.com/news/washington/2005-11-20-biden-alito_x.htm>that
based on the comment, a Senate filibuster of Alito’s nomination
might be merited. Biden said, “If [Judge Alito] really believes that
reapportionment is a questionable decision — that is, the idea
of/Baker v. Carr/, one man, one vote — then clearly, clearly, you’ll
find a lot of people, including me, willing to do whatever they can
to keep him off the court. … That would include a filibuster, if
need be.”
(Thanks toMike Sacks
<https://twitter.com/MikeSacksEsq/status/603198927047819268>for the
reminder).
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Supreme Court to hear Texas Senate districts case”
<http://electionlawblog.org/?p=72778>
Posted onMay 26, 2015 12:38 pm
<http://electionlawblog.org/?p=72778>byRick Hasen
<http://electionlawblog.org/?author=3>
Mark Sherman reports
<http://bigstory.ap.org/article/41a853cfcc5a4a2bb0acb0f35deb76db/supreme-court-hear-texas-senate-districts-case>for
AP on the Evenwel case (though that same headline probably could have
been written for a number of other cases).
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Lots at stake for California voters as SCOTUS to hear arguments on
drawing districts” <http://electionlawblog.org/?p=72776>
Posted onMay 26, 2015 12:36 pm
<http://electionlawblog.org/?p=72776>byRick Hasen
<http://electionlawblog.org/?author=3>
Andrew Grossman and I talked about the Evenwel casetoday on Airtalk
<http://www.scpr.org/programs/airtalk/2015/05/26/42992/lots-at-stake-for-california-voters-as-scotus-to-h/>.
Audio should be posted there soon.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
The Supreme Court’s Decision to Decide Whether It’s One Person, One
Vote or One Voter, One Vote <http://electionlawblog.org/?p=72772>
Posted onMay 26, 2015 10:28 am
<http://electionlawblog.org/?p=72772>byRichard Pildes
<http://electionlawblog.org/?author=7>
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.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
What the Supreme Court Said in the 1960s About Complying with One
Person, One Vote <http://electionlawblog.org/?p=72773>
Posted onMay 26, 2015 10:23 am
<http://electionlawblog.org/?p=72773>byRick Hasen
<http://electionlawblog.org/?author=3>
With theSupreme Court’s decision <http://electionlawblog.org/?p=72739>to
hear Evenwel today on whether it is permissible to include non-voters
(including non-citizens) in drawing legislative districts, it is worth
remembering what the Supreme Court said about this in the 1966
case,Burns v. Richardson
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr>,
which I had thought settled it as the state’s choice (my emphasis below):
The dispute over use of distribution according to registered voters
as a basis for Hawaiian apportionment arises because of the sizable
differences in results produced by that distribution in contrast to
that produced by the distribution according to the State’s total
population, as measured by the federal census figures. In 1960
Oahu’s share of Hawaii’s total population was 79%. Its share of
persons actually registered was 73%. On the basis of total
population, Oahu would be assigned 40 members of the 51-member house
of representatives; on the basis of registered voters it would be
entitled to 37 representatives.^[17]
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[18]>
Probably because of uneven distribution of military
residents—largely unregistered—the differences among various
districts on Oahu are even more striking. For example, on a total
population basis, Oahu’s ninth and tenth representative districts
would be entitled to 11 representatives, and the fifteenth and
sixteenth representative districts would be entitled to eight. On a
registered91
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p91>*91
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p91>voter
basis, however, the ninth and tenth districts claim only six
representatives and the fifteenth and sixteenth districts are
entitled to 10.^[18]
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[19]>
The holding in/Reynolds/v./Sims/
<https://scholar.google.com/scholar_case?case=3707795010433249200&hl=en&as_sdt=2006&as_vis=1>/,/as
we characterized it in the other cases decided on the same day, is
that “both houses of a bicameral state legislature must be
apportioned substantially on a population basis.”^[19]
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[20]>
We start with the proposition that the Equal Protection Clause does
not require the States to use total population figures derived from
the federal census as the standard by which this substantial
population equivalency is to be measured. Although total population
figures were in fact the basis of comparison in that case and most
of the others decided that day, our discussion carefully left open
the question what population was being referred to. At several
points, we discussed substantial equivalence in terms of voter
population or citizen population, making no distinction between the
acceptability of such a test and a test based on total
population.^[20]
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[21]>
Indeed, in/WMCA, Inc./v./Lomenzo,/377 U. S. 633,
<https://scholar.google.com/scholar_case?case=17759924391301630585&hl=en&as_sdt=2006&as_vis=1>decided
the same day, we treated an apportionment based upon United States
citizen population as presenting problems92
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p92>*92
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p92>no
different from apportionments using a total population measure.
Neither in/Reynolds/v./Sims/
<https://scholar.google.com/scholar_case?case=3707795010433249200&hl=en&as_sdt=2006&as_vis=1>nor
in any other decision has this Court suggested that the States are
required to include aliens, transients, short-term or temporary
residents, or persons denied the vote for conviction of crime, in
the apportionment base by which their legislators are distributed
and against which compliance with the Equal Protection Clause is to
be measured.^[21]
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[22]>
*The decision to include or exclude any such group involves choices
about the nature of representation with which we have been shown no
constitutionally founded reason to interfere. Unless a choice is one
the Constitution forbids, cf.,/e. g.,//Carrington/v./Rash,/380 U. S.
89,
<https://scholar.google.com/scholar_case?case=15421900499759540968&hl=en&as_sdt=2006&as_vis=1>the
resulting apportionment base offends no constitutional bar, and
compliance with the rule established in/Reynolds/v./Sims/
<https://scholar.google.com/scholar_case?case=3707795010433249200&hl=en&as_sdt=2006&as_vis=1>is
to be measured thereby.*
Use of a registered voter or actual voter basis presents an
additional problem. Such a basis depends not only upon criteria such
as govern state citizenship, but also upon the extent of political
activity of those eligible to register and vote. Each is thus
susceptible to improper influences by which those in political power
might be able to perpetuate underrepresentation of groups
constitutionally entitled to participate in the electoral process,93
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p93>*93
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p93>or
perpetuate a “ghost of prior malapportionment.”^[22]
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[23]>
Moreover, “fluctuations in the number of registered voters in a
given election may be sudden and substantial, caused by such
fortuitous factors as a peculiarly controversial election issue, a
particularly popular candidate, or even weather
conditions.”/Ellis/v./Mayor & City Council of Baltimore,/352 F. 2d
123, 130 (C. A. 4th Cir. 1965)
<https://scholar.google.com/scholar_case?case=15884367335437604967&hl=en&as_sdt=2006&as_vis=1>.^[23]
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[24]>
Such effects must be particularly a matter of concern where, as in
the case of Hawaii apportionment, registration figures derived from
a single election are made controlling for as long as 10 years. In
view of these considerations, we hold that the present apportionment
satisfies the Equal Protection Clause only because on this record it
was found to have produced a distribution of legislators not
substantially different from that which would have resulted from the
use of a permissible population basis.
As the District Court noted, the 1950 constitutional convention
discussed three possible measures, total population, state citizen
population, and number of registered voters, in considering how the
State House of Representatives should be apportioned. Apportionment
under the Organic Act had been on the basis of citizen population;
this had proved difficult to administer because statistics were not
readily available. Total population was disfavored because the
census tracts, by which it is determined and reported, did not
necessarily comport with traditional local boundaries. Registered
voters was chosen as a reasonable approximation of both citizen and
total population—readily determinable, conveniently94
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p94>*94
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p94>broken
down by election district, and a measure which, as against total
population, somewhat favored the other islands over Oahu. It is fair
to say that the convention report reflected that citizen population
as much as total population was the basis against which a registered
voters standard was compared.
Hawaii’s special population problems might well have led it to
conclude that state citizen population rather than total population
should be the basis for comparison. The District Court referred to
the continuing presence in Hawaii of large numbers of the military:
“Hawaii has become the United States’ military bastion for the
entire Pacific and the military population in the State fluctuates
violently as the Asiatic spots of trouble arise and disappear. If
total population were to be the only acceptable criterion upon which
legislative representation could be based, in Hawaii, grossly absurd
and disastrous results would flow . . . .” 238 F. Supp., at
474.^[24]
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[25]>
Similarly, the court referred to the distortion in census figures
attributable to “the large number of tourists who continually flow
in and out of the State and who . . . for census purposes are
initially at least, counted as part of Hawaii’s census population .
. . .”/Id.,/at 475. (Footnote omitted.) Both the tourists and the
military tend to be highly concentrated on Oahu and, indeed, are
largely confined to particular regions of that island. Total
population figures may thus constitute a substantially distorted
reflection of the distribution of state citizenry. If so, a finding
that registered voters distribution does95
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p95>*95
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p95>not
approximate total population distribution is insufficient to
establish constitutional deficiency. It is enough if it appears that
the distribution of registered voters approximates distribution of
state citizens or another permissible population base.
Because state citizen population figures are hard to obtain or
extrapolate, a comparison of the results which would be obtained by
use of such figures with the results obtained by using registered
voter figures is difficult. But the District Court found that
military population of Oahu, and its distribution over that island,
was sufficient to explain the already noted differences between
total population and registered voters apportionments, both as among
Hawaii’s four counties and as among Oahu’s representative districts.
The District Court noted “that there is nothing in the State
Constitution or the Hawaii statutes which per se excludes members of
the armed forces from establishing their residence in Hawaii and
thereafter becoming eligible to vote. This court finds no scheme in
Hawaii’s Constitution or in the statutes implementing the exercise
of franchise which is aimed at disenfranchising the military or any
other group of citizens.” 238 F. Supp., at 475. No issue was raised
in the proceedings before it that military men had been excluded
improperly from the apportionment base.^[25]
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[26]>
96
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p96>*96
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p96>Moreover,
the District Court stressed that Hawaii’s Constitution and laws
actively encourage voter registration. A high proportion of the
possible voting population is registered,^[26]
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[27]>
and “strong drives to bring out the vote have resulted in a vote of
from 88 to 93.6% of all registered voters during the elections of
1958, 1959, 1960 and 1962.”/Id.,/at 476 (footnote omitted). In these
circumstances, we find no demonstrated error in the District Court’s
conclusion that the apportionment achieved by use of a registered
voters basis substantially approximated that which would have
appeared had state citizen population been the guide.
We are not to be understood as deciding that the validity of the
registered voters basis as a measure has been established for all
time or circumstances, in Hawaii or elsewhere. The District Court
was careful to disclaim any holding that it was a “perfect basis.”
We agree. It may well be that reapportionment more frequently than
every 10 years, perhaps every four or eight years, would better
avoid the hazards of its use. Use of presidential election year
figures might both assure a high level of participation and reduce
the likelihood that varying degrees of local interest in the outcome
of the election would produce different patterns of political
activity over97
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p97>*97
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p97>the
State. Other measures, such as a system of permanent personal
registration, might also contribute to the stability and accuracy of
the registered voters figure as an apportionment basis. Future
litigation may reveal infirmities, temporary or permanent, not
established by the present record.^[27]
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[28]>
We hold that, with a view to its interim use, Hawaii’s registered
voter basis does not on this record fall short of constitutional
standards.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72773&title=What%20the%20Supreme%20Court%20Said%20in%20the%201960s%20About%20Complying%20with%20One%20Person%2C%20One%20Vote&description=>
Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Major test on voter equality set for review”
<http://electionlawblog.org/?p=72770>
Posted onMay 26, 2015 9:18 am
<http://electionlawblog.org/?p=72770>byRick Hasen
<http://electionlawblog.org/?author=3>
Lyle
Denniston<http://www.scotusblog.com/2015/05/major-test-on-voter-equality-set-for-review/>on
Evenwel.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72770&title=%E2%80%9CMajor%20test%20on%20voter%20equality%20set%20for%20review%E2%80%9D&description=>
Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Super PACs test Sen. Lindsey Graham’s commitment to campaign
finance reform” <http://electionlawblog.org/?p=72768>
Posted onMay 26, 2015 9:16 am
<http://electionlawblog.org/?p=72768>byRick Hasen
<http://electionlawblog.org/?author=3>
Mary Troyan
<http://www.greenvilleonline.com/story/news/politics/2015/05/23/super-pacs-test-sen-lindsey-grahams-commitment-campaign-finance-reform/27838463/>for
Gannett:
Voters will grow weary of super PACs’ influence, he said.
“I think over time, there will be a real re-evaluation after this
election cycle over the role that some of these PACs play,” Graham said.
He went further during a TV interview in New Hampshire in April,
saying a constitutional amendment is needed to curtail super PACs.
“Eventually, we’re going to destroy American politics with so much
money in the political process because they are going to turn you
off from wanting to vote,” Graham told WMUR in Manchester.
Until then, however, Graham isn’t disavowing any super PAC that may
emerge to back his campaign.
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
--
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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