[EL] one person one vote

[Rick Hasen]

If anyone replies to David's email please use this descriptive subject 
header instead of the generic "news and commentary" one.
Thanks.


On 5/29/15 10:32 AM, David Ely wrote:
>
> 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 
> 14^th 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 14^th 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
>
>
>     Derek Muller with the Conservative Case Against Evenwel
>     <http://electionlawblog.org/?p=72936>
>
> Posted onMay 29, 2015 7:52 am 
> <http://electionlawblog.org/?p=72936>by*Rick Hasen* 
> <http://electionlawblog.org/?author=3>
>
> Must-read 
> <http://www.libertylawsite.org/2015/05/29/one-man-one-vote-in-texas/>:
>
>     /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/. But/Evenwel/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./
>
>   

-- 
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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