[EL] Evenwel

[Justin Levitt]

Another minor nit on Rick's second clarification below: it used to be 
that the Court required exact equality for congressional districts but 
permitted some minor deviations in state and local redistricting.  But 
this past cycle, in a case out of West Virginia 
<http://www.supremecourt.gov/opinions/11pdf/11-1184_ap6c.pdf>, the Court 
permitted some minor deviations in congressional districts as well.

That doesn't affect his primary point that the textual source of the 
doctrine for congressional districts is different from the textual 
source of the doctrine for state legislative districts, and it probably 
doesn't affect the degree to which an opinion in one area would or would 
not carry over to the other.

-- 
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 5/28/2015 7:46 AM, Rick Hasen wrote:
>
>
>     No, The Evenwel Case Does Not Put the Apportionment of
>     Congressional Districts to the States in Play
>     <http://electionlawblog.org/?p=72858>
>
> Posted onMay 27, 2015 8:08 pm 
> <http://electionlawblog.org/?p=72858>byRick Hasen 
> <http://electionlawblog.org/?author=3>
>
> Richard Wingerhelpfully points out 
> <http://ballot-access.org/2015/05/27/los-angeles-times-misinforms-readers-about-possible-effect-of-future-u-s-supreme-court-decision-on-redistricting/>some 
> confusion about the effects of /Evenwel/on reapportionment. So let’s 
> make this clear.
>
> 1. At issue in /Evenwel/, is whether drawing district for state 
> legislatures and other state purposes must be done on total (eligible 
> or registered) voter basis, as opposed to a choice between that, total 
> population, or perhaps other measures, to comply with the U.S. 
> Constitution’s 14th Amendment equal protection clause.
>
> 2. The source of the one person, one vote rule in congressional 
> elections/within /is Article 1, not the Equal Protection Clause. (See 
> /Wesberry v. Sanders 
> <https://supreme.justia.com/cases/federal/us/376/1/case.html>/.) The 
> rules are somewhat different. OPOV for congressional districts must be 
> /exactly/equal, but there is some room for minor deviations in state 
> (and local) redistricting. Nonetheless, if the Court in /Evenwel 
> /requires use of voters in the denominator for OPOV purposes in state 
> elections, its logic would likely carry over to the OPOV rule for 
> congressional elections.
>
> 3. Nonetheless, the number of congressional districts /across 
> states/(commonly called apportionment) is textually committed in 
> theFourteenth Amendment 
> <https://www.law.cornell.edu/constitution/amendmentxiv>to one based on 
> total numbers of people. Section 2 reads (with my emphasis):
>
>     *Representatives shall be apportioned among the several states
>     according to their respective numbers, counting the whole number
>     of persons in each state, excluding Indians not taxed.*But when
>     the right to vote at any election for the choice of electors for
>     President and Vice President of the United States, Representatives
>     in Congress, the executive and judicial officers of a state, or
>     the members of the legislature thereof, is denied to any of
>     themale
>     <https://www.law.cornell.edu/constitution/amendmentxix>inhabitants
>     of such state,being twenty-one years of age
>     <https://www.law.cornell.edu/constitution/amendmentxxvi>, and
>     citizens of the United States, or in any way abridged, except for
>     participation in rebellion, or other crime, the basis of
>     representation therein shall be reduced in the proportion which
>     the number of such male citizens shall bear to the whole number of
>     male citizens twenty-one years of age in such state.
>
> UPDATE: Marty Lederman reminds me of language in /Wesberry /itself, 
> noting “The history of the Constitution, particularly that part of it 
> relating to the adoption of Art. I, § 2, reveals that those who framed 
> the Constitution meant that, no matter what the mechanics of an 
> election, whether statewide or by districts,*it was population which 
> was to be the basis of the House of Representatives*.” He suggests 
> this language as well as originalist material throws doubt on my point 
> # 2 (that the logic of a decision in favor of the voter denominator in 
> /Evenwel/logically could apply to congressional districts as well). 
>  It is a fair point, and I had forgotten about this language. 
>  Nonetheless, if indeed (as I think remains unlikely) the Supreme 
> Court holds in /Evenwel/that one person, one principles in the equal 
> protection clause /require/the use of total voters otherwise some 
> voters’ votes are unconstitutionally diluted, it is hard to imagine 
> the court not applying the same logic and denominator to congressional 
> elections.  (This is one of the reasons why, as Marty has suggested, 
> the court is unlikely to require the use of the voters denominator on 
> the state level in /Evenwel/.)
>
> Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme 
> Court <http://electionlawblog.org/?cat=29>
>
>

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