[EL] Evenwel (Conservatives could still get what they want)

[Thomas J. Cares]

(I should retract my suggestion of one at-large multimember district for
small states. For small states, it should also be very-doable to divide it
by a small number - less than 10 - and have all the districts have the same
number of residents and the same number of registered voters).

On Mon, Apr 4, 2016 at 7:08 PM, Thomas J. Cares <Tom at tomcares.com> wrote:

> On Evenwel, I really don't see why a conservative legislature couldn't
> accomplish these ends by making larger multimember districts which they can
> require to be configured to have BOTH equal populations and registered
> voters, while still being compact - i.e. if you divided texas into 10 or
> fewer districts, I'm sure it's very possible to make compact districts that
> each have the same number of residents and registered voters.
>
> For small states, you could have just one at-large multimember district.
> This would seem to cure their objection on voters in districts with fewer
> voters having disproportionate power. (See, they went to the SCOTUS for
> nothing. All they had to do was open their minds to multimember districts).
>
> And, of course, the best way to have multimember districts is to use
> single transferable voting -
> https://en.wikipedia.org/wiki/Single_transferable_vote - works great.
>
> On Mon, Apr 4, 2016 at 2:26 PM, Edelman, Paul <
> paul.edelman at law.vanderbilt.edu> wrote:
>
>>
>>
>>   Can’t help but note that the majority acknowledge the appellants’ claim
>> that Texas could simultaneously get equal population and equal voters. They
>> note that “In any event appellants have never presented a map that manages
>> to equalize both measures, perhaps because such a map does not exist, or
>> because such a map would necessarily ignore other traditional redistricting
>> principles, including maintaining communities of interest and respecting
>> municipal boundaries.” (fn.15) As I show in my paper, such a map will
>> always exist but it may well violate some other desirable properties, most
>> importantly producing majority-minority districts.  Thomas in his
>> concurrence just claims, without any citation, that “States can equalize
>> both total population and total voting power with the districts,” (p 17) It
>> is interesting that he refers to “voting power” and not voters.  The
>> connection between the number of voters and their voting power is fraught
>> with theoretical difficulty so I don’t see why he would choose to open that
>> can of worms unnecessarily.
>>
>>
>>
>> Paul
>>
>>
>>
>> Paul H. Edelman
>>
>> Professor of Mathematics and Law
>>
>> Vanderbilt University
>>
>> paul.edelman at vanderbilt.edu
>>
>> 615-322-0990
>>
>>
>>
>> *From:* law-election-bounces at department-lists.uci.edu [
>> mailto:law-election-bounces at department-lists.uci.edu
>> <law-election-bounces at department-lists.uci.edu>] *On Behalf Of *Rick
>> Hasen
>> *Sent:* Monday, April 04, 2016 9:56 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.*
>>
>> [image: Share]
>> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D81460&title=Breaking%2FAnalysis%3A%20Big%20Victory%20for%20Voting%20Rights%20as%20%23SCOTUS%20Rejects%20Plaintiffs%26%238217%3B%20Claim%20in%20Evenwel%20One%20Person%2C%20One%20Vote%20Case&description=>
>>
>> Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme
>> Court <http://electionlawblog.org/?cat=29>
>>
>> --
>>
>> 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
>>
>> hhttp://www.law.uci.edu/faculty/full-time/hasen/
>>
>> http://electionlawblog.org
>>
>>
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