[EL] Evenwel
David A. Holtzman
David at HoltzmanLaw.com
Tue Apr 5 20:17:07 PDT 2016
Just a quick note on "apportioning" versus "districting".
I was told that apportioning means giving out a fixed number of things
(House seats) to a fixed number of recipients (states).
I was told not to use "apportioning" to describe drawing district
lines. In that context saying "apportioning" makes it seem like we're
assigning voters to specific politicians, which may be the case, but
still....
(Re)districting involves delineating geographical areas with
equal-enough numbers of residents (sorry, not voters [yet?]) at a point
in time. We don't expect the total number of residents to remain fixed.
- dah
On 4/4/2016 3:56 PM, Rick Hasen wrote:
> Because the Constitution mandates the use of total population in
> apportioning congressional seats among states.
> That's why Justice Ginsburg said (as many of us said) that it would be
> quite odd to /mandate/ total population for apportionment of
> congressional seats among states but to /bar/ it for apportioning
> /within /states.
>
> On 4/4/16 2:43 PM, Larry Levine wrote:
>>
>> If a state elects to redistrict based on the narrower number, why
>> should that number not be used in determining how many congressional
>> seats that state gets? Are they not saying certain numbers of people
>> are not going to be represented by their members?
>>
>> Larry
>>
>> *From:*law-election-bounces at department-lists.uci.edu
>> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of
>> *Edelman, Paul
>> *Sent:* Monday, April 04, 2016 2:27 PM
>> *To:* law-election at uci.edu
>> *Subject:* [EL] Evenwel
>>
>> 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>
>> [mailto: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 <mailto: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 onApril 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/>unlikeEd
>> 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 inmy 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./
>>
>> 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 inredistricting <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 <mailto:rhasen at law.uci.edu>
>> hhttp://www.law.uci.edu/faculty/full-time/hasen/
>> http://electionlawblog.org
>>
>>
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>
> --
> 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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--
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com
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