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

[David Ely]

The Senate exception is clear compromise between popular representation and State sovereignty. To require something different than equal population for non-congressional apportionment would mean that the representational democratic theory that provides the bedrock of the constitution was not a valid theory under the equal protection clause.  Does anyone really believe that the intent of the equal protection clause was to create an alternative theory of representative democracy based on equal vote-weight that would supersede the equal representation of population which the 14th amendment continues to articulate for congressional apportionment?

 

What the plaintiffs are saying here is that when the court interpreted the equal protection clause to be relevant to apportionment, it used arguments which are consistent with an equal vote weight theory, so the equal vote-weight theory should now be controlling, rather the representational equality theory which is clearly articulated in the constitution, both before the 14th amendment, and in the apportionment section of the 14th amendment.  If the court now believes that there is a conflict between the logic of earlier decisions and the constitution, it should decide now in favor of the constitution, not the courts earlier theory.  

 

It would be especially ironic if a clause which explicitly protects the equality of all residents and doesn’t mention apportionment were used to elevate the representational weight of eligible voters over all other residents, when equal representational weight for all residents is explicitly required in the section of the same amendment that does deal with apportionment. 

 

From: Rob Richie [mailto:rr at fairvote.org] 
Sent: Wednesday, May 27, 2015 2:11 PM
To: Marty Lederman
Cc: David Ely; Election Law
Subject: Re: [EL] FW: Re: The Supreme Court's Decision to Decide Whether It's One Person, One Vote or One Voter, One Vote

 

Fascinating find.

 

Relating to what Roberts wrote then, the "one-person, one-vote" cases themselves did have to carve out the exception of malapportion of the U.S. Senate based on Constitutional provisions. That means there is some precedent of the Court making a ruling with sweeping impact that was in conflict with what the Constitution specifies for one particular legislative body. Just as the Senate is the only legislative body in the country that can have great malapportionment of residents, theoretically the House and Senate could send up being the only legislative bodies with great malapportionment of eligible/registered voters.

 

Rob

 

 

On Wed, May 27, 2015 at 4:54 PM, Marty Lederman <lederman.marty at gmail.com> wrote:

Along the same lines as David's post, check out what Deputy Solicitor General Roberts wrote on this question 25 years ago (in his capacity as counsel for the USG, of course):

 

http://balkin.blogspot.com/2015/05/the-curious-result-urged-by-appellants.html

 

On Wed, May 27, 2015 at 3:35 PM, David Ely <ely at compass-demographics.com> wrote:

I had forgotten that the apportionment of representatives to the states was also in the 14th amendment.  How bizarre would it be for the court to find that a state which internally used the same apportionment scheme as that required between states in Section 2 of the 14th amendment was in violation of the equal protection clause of Section 1.  This would imply that the authors of the 14th amendment were intentionally denying equal protection of the laws (in the form of congressional representation) to eligible voters in states which had a higher ratio of eligible voters to population.

 

The 14th Amendment has parts which apply to citizens and parts that apply to all persons. Both the Equal Protection clause in Section 1 and the apportionment of representatives in Section 2 refer to persons, not citizens, and not eligible voters.  The difference is explicit in both cases.

 

Beginning of Section 1 defines citizens as a subset of person. Then there are separate guarantees of the rights of citizens (privileges and immunities) and of persons( due process and equal protection).

Beginning of Section 2 gives apportionment rule based on “whole number of persons”. Later in section 2 is a proportional reduction in representation based on the denial of voting rights to adult male citizens.

 


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