[EL] ELB News and Commentary 5/29/15

[David Ely]

I’m still astounded that there is any question about this.  What we have are 2 competing theories of representative government. 

 

One is the theory which is the fundamental principle of the constitution, that republican government means one which represents the great body of the people rather than a select subset of the people. The article linked below discusses this as well. This theory is unquestionably mandated in the constitution for the apportionment of representatives to the states, both in the original and in the 14th amendment. It was clearly articulated by the primary authors of the Constitution. It was the theory actually applied as a result of Supreme Court decisions imposing equal sized districts.  These cases were based on interpreting the 14th amendment’s equal protection clause which clearly and explicitly applies to all persons resident in a jurisdiction, rather than to some specially entitled group.

 

The other theory, the equal vote-weight theory, has its authority based in the awkward and indecisive language and reasoning of early Supreme Court opinions on this issue. The theory is inconsistent with the actual language of the final rulings requiring approximately equal population districts, and resulting in the use of total population from the Census. 

 

The ninth Circuit has held (correctly in my opinion) that the first theory is mandated by the constitution. Other circuits have held that individual jurisdictions can choose between the theories. The current case is asking that the second theory be mandated.  My only hope is that the court has accepted this case in order to decide if a single theory is mandated, or if individual jurisdictions are free to choose a theory.  If they decide that a single theory is mandated it should be absolutely clear (to anyone who believes that the actual constitution means something) which of the 2 theories is mandated.   

 

 

 

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Friday, May 29, 2015 7:55 AM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 5/29/15

 


 <http://electionlawblog.org/?p=72936> Derek Muller with the Conservative Case Against Evenwel


Posted on  <http://electionlawblog.org/?p=72936> May 29, 2015 7:52 am by  <http://electionlawblog.org/?author=3> Rick Hasen

 <http://www.libertylawsite.org/2015/05/29/one-man-one-vote-in-texas/> Must-read:

It might be that population-based redistricting in Texas, and for that matter in most states, is unwise for this reason. The argument that these practices are quite administrable and wholly consistent with decades of practice, while true, may not end up being the decisive one. The Court has, for once, largely left this matter to the political process to decide. But the plaintiffs have lost this political battle in Texas, so they now seek to read a newer, narrow theory of political representation into the Constitution, a stage beyond what even the Warren Court felt comfortable doing—creating an ever-more uniform political theory derived under a construction of the words “the equal protection of the laws.”

Texas, along with the other 49 states, has remained free to adopt one of several theories of representative government within the confines of Reynolds v. Sims. ButEvenwel threatens not only to deprive the states of their authority to do so, but also to impose a standard that is squarely at odds with the structural design of the Constitution: representative government includes representation of all persons, not simply voters.

And one can hope that the Court will leave the development of additional political theory to the political branches.

 
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