[EL] Breaking/Analysis: Big Victory for Voting Rights as #SCOTUS Rejects Plaintiffs’ Claim in Evenwel One Person, One Vote Case,Posted on April 4, 2016 7:15 am by Rick Hasen

Mon Apr 4 15:51:40 PDT 2016

I also don’t find the result at all surprising—neither the court’s holding, that voters (rather than population) is not mandatory, nor its decision not to reach the question not presented, whether voters is a permissible basis. Like Rick, I never quite saw the point of case.

But why did the challengers think they could win this? Well, from Wesberry v. Sanders:
“Appellants are citizens and qualified voters…” (emphasis added) (this is the first line of the opinion).
“[N]othing in the language of [Art. I, Sec. 4] gives support to a construction that would immunize state congressional apportionment laws which debase a citizen's right to vote from the power of courts…” (emphasis added)
“[E]ach voter should have a voice equal to that of every other in electing members of Congress… “ (emphasis added).
“The House of Represenatives, the Convention agreed, was to represent the people …  on a basis of complete equality for each voter.” (emphasis added)
“’Elections are equal, when a given number of citizens, in one part of the state, choose as many representatives, as are chosen by the same number of citizens in any other part of the state.” (quoting James Wilson) (emphasis added).

Or Reynolds v. Sims:
“[A]ll qualified voters have a constitutionally protected right to vote, …” (emphasis added)
“[A]ll who participate in the election are to have an equal vote… The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions.'  ‘” (quoting Gray v. Sanders) (emphasis added)
“‘[T]he Federal Constitution intends that when qualified voters elect members of Congress each vote be given as much weight as any other vote … .’” (quoting Wesberry) (emphasis added).
“Gray… established the basic principle of equality among voters within a State, and held that voters cannot be classified, constitutionally, on the basis of where they live… .” (emphasis added)
“[I]f a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.” (emphasis added)
“Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there. The resulting discrimination against those individual voters living in disfavored areas is easily demonstrable mathematically. Their right to vote is simply not the same right to vote as that of those living in a favored part of the State. Two, five, or 10 of them must vote before the effect of their voting is equivalent to that of their favored neighbor. Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable.” (emphasis added)

Obviously, we could on through Reynolds (we’re hardly into the decision) and then through the numerous progeny of Reynolds and Wesberry, but why bother. You could certainly read all this and think that equal numbers of voters, or at least equal numbers of citizens, is not only permissible, but the logical requirement of Wesberry, Reynolds, etc.

I am not arguing that today’s decision is wrong. I think it is probably right, at the very least insofar as it follows clear and substantial precedent. The point I wish to make is that a frequent error in analyzing precedent, and one it seems rife is in analysis of campaign finance precedents, is to take these types of phrases out of context and insist that they must have a particular meaning. Then those critics insist that, because the Court doesn’t seem to adhere to the meaning that the critic insists the prior case must have, the decisions are in tension, or the logic is incorrect, or it’s all just results oriented. In fact, however, if you actually try to take on the Court’s precedent in good faith, on the Court’s terms, things are not terribly confused at all.

Here, the meaning that the plaintiffs insist upon would obviously be that “voters” is the basis for equality, not “population.” Certainly there are lots of statements to support that reasoning in the precedents, and to the extent population is used as the basis of apportionment, it seems contrary to such language. But if you consider the cases as a whole, on the Court’s own terms, it’s relatively clear that that is not the meaning of Wesberry, Gray, or Reynolds. Reynolds is full of sloppy logic; most of the court’s 1P1V cases use language in a sloppy fashion. But the core holdings are readily determined by reading the whole of the cases, and the holdings are not wrong or inconsistent because of some poor example, or overstatement, understatement, imprecision, or poor choice of words.

So when my election law class meets tomorrow, we’ll probably use this to talk more about where and how lawyers and scholars can go wrong reading precedents, than we will discuss the unexceptional and predictable result.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Monday, April 04, 2016 10:56 AM
To: law-election at uci.edu
Subject: [EL] Breaking/Analysis: Big Victory for Voting Rights as #SCOTUS Rejects Plaintiffs’ Claim in Evenwel One Person, One Vote Case,Posted on April 4, 2016 7:15 am by Rick Hasen

Breaking/Analysis: Big Victory for Voting Rights as #SCOTUS Rejects Plaintiffs’ Claim in Evenwel One Person, One Vote Case<http://electionlawblog.org/?p=81460>
Posted on April 4, 2016 7:15 am<http://electionlawblog.org/?p=81460> by Rick Hasen<http://electionlawblog.org/?author=3>

A unanimous Supreme Court in Evenwel v. Abbott (with two Justices (Thomas and Alito) concurring in the judgment) has rejected the argument<http://www.supremecourt.gov/opinions/15pdf/14-940_ed9g.pdf> that states must draw district lines so as to equalize the total number of voters (as opposed to total population) in redistricting. A contrary ruling would have shifted power to Republican, rural districts, and away from Democratic urban areas (because non-citizens and children, especially in Latino areas in states such as Texas would be in Democratic areas).  Most importantly, in a big victory for the federal government’s position in the litigation, the Court did not say that a state can simply choose between doing total population or total voters in how district lines are drawn. Some expected that if the Court gave Texas the green light to choose, as Texas argued it had the right to do in this litigation, then in the next round of redistricting, it would have done so in order to increase the number of Republican districts in the state.

Justice Ginsburg wrote the opinion for the Court, and it is clear (as I had been saying) that Justice Scalia’s death did not affect the outcome of this case. It was clear from the oral argument that, despite what some said, this was not a case where the Court was likely to divide 4-4. Ed Blum’s position in this case to require total population was not only at odds with historical practice, it was not practically possible given the data that we have, and it would have led to terrible outcomes, including making it basically impossible to also comply with Voting Rights Act requirements for districts.

Justice Ginsburg’s opinion holds that districting using total population was consistent with constitutional history, the Court’s own decisions, and longstanding practice. A long section of Justice Ginsburg’s opinion recounts constitutional history, and relies on the fact that for purposes of apportioning Congressional seats among states, total population, not total voters, must be used. Plaintiffs’ argument in Evenwel was inconsistent with this practice. As to the Court’s own precedents, Justice Ginsburg acknowledged language supporting both total voters and total population as possible bases, but Court’s practice has been to look at total population in its cases. Further, that is the practice that states uniformly use, despite the occasional case such as Burns v. Richardson, allowing Hawaii to use a registered voter level.

Finally, Justice Ginsburg gives a sound policy reason for a total voter rule.  In key language, she writes that “Nonvoters have an important stake in many policy debates—children,, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.” A footnote following this states that even though constituents “have no constitutional right to equal access yo the their elected representatives,” a state “certainly has an interest in taking reasonable, nondiscriminatory steps to facilitate access for all its residents.”

Perhaps the most important aspect of Justice Ginsburg’s opinion, and especially notable because it attracted the votes of not just the liberals but also Chief Justice Roberts and Justice Kennedy, is the Court’s refusal to give Texas the green light to use total voters if it wants in the next round of redistricting. The Court simply put the issue off for another day. It is hard to stress enough what a victory this is for plaintiffs. Many of us thought Burns already gave Texas this power. The fact that the Court leaves that issue open will serve as a deterrent for states like Texas to try to use total voters in the next round of redistricting, because it will guarantee major litigation on the question.

One notable aspect of Justice Ginsburg’s opinion is that it seeks to provide some clarity about when perfect equality is required and when it is not. Interesting, the Court ignores the Tennant case, which seemed to allow some deviation from perfect equality even in Congressional district cases, and seems to restore a 10% safe harbor for state and local redistricting. (See pages 3-4.) As Derek Muller points out on Twitter, this is a bad sign for the plaintiffs in the pending Harris case from Arizona, although the Court could still hold that the 10% safe harbor does not apply when there is proof of partisan motive in deviating from perfect equality.

The concurring opinions coming from Justices Thomas and Alito are not surprising. Years earlier, Thomas dissented from the Court’s refusal to hear an earlier case on this question. Back when Alito applied to work at the Justice Department, he mentioned in his application his disagreement with the Warren Court one person, one vote cases. Justice Thomas, quite radically given the last 50 years, suggests there is no basis for a one person, one vote principle at all. This strikes me, as I’ve written, as a sound conservative argument,<http://www.scotusblog.com/2015/07/symposium-ideology-partisanship-and-the-new-one-person-one-vote-case/> unlike Ed Blum’s argument<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/05/evenwel_v_abbott_supreme_court_case_state_districts_count_voters_or_total.html> in Evenwel which would have restricted states even further in their choice of one person, one vote rules. I suspect that Justice Scalia could have concurred in Justice Thomas’s opinion.

Justice Alito does not go as far as Justice Thomas. Relying heavily on historical analysis, he would hold that a state can use total population, but casts serious doubts on the question (not reached by the majority) as to whether it must. He says the question whether a state could use some other measure “is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.”

This was never a close case, as judged by the unanimous rejection of Ed Blum’s position in this case. So why did the Court take it?  As I’ve suggested in my forthcoming Stanford Law Review piece, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639902>  the Court likely took this case for a purely technical reason: Ed Blum managed to maneuver it to come before a three judge district court with direct appeal to the Supreme Court. In those cases, a decision by the Court not to hear the case and to simply affirm is treated as a judgment that the Supreme Court agrees with the lower court result (though not necessarily its reasoning). The Chief Justice and others have said they feel compulsion to take these cases, as they are often reluctant to endorse a result without a full examination.

It might be said that liberals dodged a bullet. But as I’ve said since the beginning, this bullet was never close to hitting its victim.

This post has been updated.
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