<x-charset Windows-1251> Richard is correct about the furor. However, it did not last long. Once there had been a round of elections under one person, one vote, the newly elected state and federal legislators had no incentive to oppose the Court's ruling.
Contrary to what Jeff says, Wesberry and Reynolds certainly can be questioned on textual grounds. The requirement in art. 1 sec. 2 that members of the House be chosen by the people of the several states does not make it obvious that districts have to have equal populations. If one believes, as I do, that the framers were more or less Lockeans, then there is surely ground to believe that rotten boroughs, such as still existed in England, would have been prohibited. But even in the most malapportioned states in 1964, there were no rotten boroughs remotely comparable to those in 18th century England. It is even less obvious that people who live in oversized districts are denied equal protection of the laws. Furthermore, there are strong reasons to doubt that the Equal Protection Clause was ever intended to affect voting. Otherwise, why the sanctions on states for denying the vote in Section 2 of the 14th Amendment, and why did they bother to pass the 15th Amendment?
Despite those reservations, the one person, one vote has unquestionably proved to be almost universally popular, once that initial group of rural politicians had been put out of the way. I know of no current writers who seriously suggest revisiting the results in Wesberry or Reynolds, but it is not the case that contemporary criticism of the one person, one vote doctrine is limited to the view that it is inadequate. The details of it are questioned in various ways, especially on the ground that it is applied too rigidly to congressional districts. Does anyone want to defend the lower court decision in Vieth that a maximum population difference of 19 people makes a congressional plan unconstitutional? Some of us also are unhappy about some lower court decisions, one of which has been summarily affirmed by the Supreme Court, that a state or local redistricting plan whose maximum populaton difference is under ten percent can still be challenged on population grounds.
The trouble with applying all this to Alito's letter is that the letter is unclear whether he was opposing the reapportionment cases in general, presumably for jurisprudential reasons such as those described above, or to what he saw as their overly rigorous application. The latter, as Rick suggests, would be utterly unremarkable. The former, though I think not a serious reason to oppose his confirmation, would be a bit of an eyebrow-raiser, in a letter written in the 1980s.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of ban@richardwinger.com
Sent: Wednesday, November 16, 2005 11:22 AM
To: jeff_hauser95@post.harvard.edu; election-law
Subject: Re: 1P, 1V
A person has to be somewhat elderly to remember the
great anger that the US Supreme Court "one man, one
vote" decisions caused. US Senator Everett Dirksen,
minority leader, made it his number one priority to
get a constitutional amendment passed, overturning the decisions, as they related to state legislative districts, and county and city elections. My memory tells me he had majority support in congress (but not the needed two-thirds). Even in California, where I live, the anger of people who live on farms and in small rural communities was white-hot. They felt their interests would now be ignored.
--- Jeffrey MA Hauser <jmh248@nyu.edu> wrote:
I'm out of date by about 5 years, but... don't most
critiques of 1P, 1V
reduce down to the fact that it is an incomplete
solution, rather than
problematic in and of itself?
I mean, it's hard to see how the rightness of the
rule as a matter of
textualism or functional interpretation as subject
to much dispute. I
get how there are other values relative to
districting, but which values
are both both more important and in necessary
conflict w/1P, 1V?> Date: Wed, 16 Nov 2005 08:42:42
-0800
From: Rick Hasen <Rick.Hasen@lls.edu>
Subject: Electionlawblog news and commentary
11/16/05
To: election-law <election-law@majordomo.lls.edu>
---------------------------------
The NYT Editorial Page on Judge Alito and OnePerson,
One Vote
In Ignorethe Man Behind the Memo, the New York Times
editorial pagewrites: "[Judge Alito] noted his
'disagreement with Warren Courtdecisions' in many
important areas, including reapportionment.
Thereapportionment cases established the
one-person-one-vote doctrine,which requires that
Congressional and legislative districts includeroughly
equal numbers of people. They played a key role in makingAmerican democracy truly representative, and are almost uniformlyrespected by lawyers and scholars."
I think this is somewhat of an overstatement. While I
believe thereis near consensus that Baker v. Carr was
correctly decided,there has been a great deal of
criticism of the one person, one voterule in recent
years from both the left and right. I have
alreadywritten about Judge McConnell's criticisms. But
there have also beenthoughtul pieces by Sandy
Levinson, Grant Hayden, Richard Briffault,myself and
others who can't be characterized as
conservatives,questioning at least in part the
implementation of the Supreme Court'sone person, one
vote rule.
"Voter Disenfranchisement by Attrition; With
friendslike FEMA, who needs Jim Crow?"
In These Times offers this veryimportant report, which
begins: "When Hurricane Katrina came ashorein New
Orleans, it destroyed half the city∙s voting
precincts andscattered 300,000 of the city∙s
residents, most of them black, acrossthe country. With
citywide elections still scheduled in February
andMarch for 20 key public offices∔including
mayor, criminal sheriff,civil sheriff and all city
council members∔restoring the
city∙sdemocratic capability might seem an
urgent task to some, but not to theFederal Emergency
Management Agency (FEMA)."
Court Invalidates Ballot Measure Where
ChineseTranslation of Measure was Faulty
See here.
"Recounting Ohio: Was Ohio stolen? You might not
likethe answer"
Mother Jones has published thisvery interesting book
review by Mark Hertsgaard. Thanks to MattKohn for the
pointer.
Links to More WRtL Amicus Briefs
See here.One of the briefs, on behalf of Senator
McConnell, was authored by TedOlson.
More Commentaries on Lessons from the California
andOhio Election Reform Defeats
See NedFoley's commentary and BobBauer's commentary,
which offers a different view of the BCcitizens'
assembly promoted by Heather Gerken.
Conservative Groups' Amicus Brief in WRtL
Allison Hayward has posted it here.Allison reportsthat
the brief was filed on behalf of the Center for CompetitivePolitics, the Cato Institute, the Institute for Justice, Reason, theGoldwater Institute, and the Claremont Institute. Who is CCP? "TheCenter for Competitive Politics is a non-profit organization founded inAugust 2005 by [former FEC Commissioner and current Capital lawprofessor Brad] Smith and Stephen M. Hoersting, a campaign financeattorney and former General Counsel to the National RepublicanSenatorial Committee. CCP∙s mission, through legal briefs, studies,historical and constitutional analyses, and media communication, is toeducate the public on the actual effects of money in politics, and theresults of a more free and competitive electoral process. With theexception of participating in the two pending Supreme Court casesrelevant to its mission, CCP will open its doors in early 2006."
Some Evidence One Person, One Vote Will Get Some
Playin Judge Alito Hearings
See thisfact sheet from the Alliance for Justice. A
snippet: "Judge Alitoshould say whether he continues
to believe that the Constitutionprovides no right to
abortion, contains no 'one person-one vote'principle,
permits religious prayer in school and forbids affirmativeaction."
--Rick HasenWilliam H. Hannon Distinguished Professor
of LawLoyola Law School919 Albany StreetLos Angeles,
CA 90015-1211(213)736-1466 - voice(213)380-3769 - faxrick.hasen@lls.eduhttp://www.lls.edu/academics/faculty/hasen.htmlhttp://electionlawblog.org
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