[EL] Evenwel

Tue Apr 5 22:31:32 PDT 2016

That is how I use those terms.  See pages 3-4 of Redistricting: The Most
Political Activity in America.  Charles S. Bullock III.  2010.

On Tue, Apr 5, 2016 at 11:17 PM, David A. Holtzman <David at holtzmanlaw.com>
wrote:

> 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
> <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>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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> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://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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Cell: 812-514-9060
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