[EL] Evenwel
Rick Hasen
rhasen at law.uci.edu
Wed Apr 6 07:13:56 PDT 2016
Yes, I misspoke (or mistyped) and agree with David on usage.
On 4/5/16 10:31 PM, Carl Klarner wrote:
> 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 <mailto: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>
>>> [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 <mailto: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 <mailto:paul.edelman at vanderbilt.edu>
>>>
>>> 615-322-0990 <tel: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 <tel:949.824.3072> - office
>>> 949.824.0495 <tel: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://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 <tel:949.824.3072> - office
>> 949.824.0495 <tel:949.824.0495> - fax
>> rhasen at law.uci.edu <mailto: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 <mailto:david at holtzmanlaw.com>
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> --
>
> Dr. Carl Klarner
>
> Academic / Political Consultant
>
> Klarnerpolitics.com
>
> Former Associate Professor of Political Science
>
> Carl.Klarner at gmail.com <mailto:Carl.Klarner at gmail.com>
>
> Cell: 812-514-9060
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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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