A Supreme Court Long Lost Footnote and the One Person One Vote Principle

Some 50 years ago, a Supreme Court footnote disappeared from the annals of history.

Footnotes are hardly historic, let alone set precedent or redefine the meaning of the Constitution. They often just come and go in the process of horse-trading and consensus building among the justices, who may condition their votes on whether specific language goes or stays.

But as the Supreme Court tackles Evenwel v. Abbott, the politically charged voting rights case, this long-lost footnote from 1966 becomes more prescient than ever. And if history serves as a guide, its text could keep the court from a backlash and political consequences it doesn't need.

At the core of Evenwel, which the court heard on Tuesday, is the 14th Amendment's "one person, one vote" principle, a tenet Americans understand to be fundamental as a matter of civics, even though few truly grasp what it means or where it came from.

Maybe the Constitution is to blame. "One person, one vote" is nowhere in its text. Yet the Supreme Court allowed it to creep in, little by little, starting with the landmark Baker v. Carr in 1962, a case Chief Justice Earl Warren came to regard as more important than even Brown v. Board of Education.

Baker was one of those horse-trading cases. And it was a big deal at the time because with it, and despite sharp internal divisions among the justices, the court for the first time entered the "political thicket" of deciding state redistricting issues under the Constitution's equal protection clause. Or as the court put it in Baker, the 14th Amendment requires that a person's right to vote be "free of arbitrary impairment by state action."

That sounds like a laudable result. But not so for Pepperdine University Law Professor Derek Muller, the discoverer of the lost footnote. His research has led him to conclude that Baker and the cases that followed it, including 1964's Reynolds v. Sims, which cemented "one person, one vote" as a constitutional maxim, were all a big mistake. "These are very political cases," Muller said. "For a long time they were deemed something politicians should decide, and not the court."

In an article to appear in the Harvard Journal of Law and Public Policy, Muller explains how the court went astray in these cases. And with his sights set on the Evenwel case, he argues that the dispute presents the Supreme Court with an opportunity to avoid the error of going back "to the judicial nationalization of state legislatures."

Evenwel is a dangerous case because the challengers, two Republican voters from Texas with rather radical views, essentially seek nationalization, except in a roundabout way. They want the justices to read the "one person, one vote" principle to prohibit states from drawing legislative districts based on total population, currently the most popular method. Instead, they argue the principle compels the creation of equal districts based on the total number of eligible voters in the state. All as a matter of constitutional law.

An analysis released by the liberal Brennan Center for Justice on Monday reveals to what extent this overhaul of "one person, one vote" would upend every state's electoral map, rendering them "presumptively unconstitutional" and in need of redrawing.

Redrawing is a problem with such a sweeping result, as many election experts have observed, is that those hit hardest would include Latino immigrants and their families, children, people behind bars and those with mental illness. All stand to lose political clout if the Supreme Court blesses a rubric where only eligible voters count for map-drawing purposes. Are these groups not deserving of representation in the statehouse?

Places like Texas and New York have large concentrations of non-citizens that live in the bustling urban areas. Thus, states have an interest in reapportioning those districts to make sure they are represented. Does the Constitution really forbid them from doing that?

All questions with no easy answers. Which brings us back to the long-lost footnote.

Muller unearthed it when he dug through Supreme Court archives at the Library of Congress, with a special focus on the Baker case and others that followed. As he advances in his soon-to-be-published Harvard article, the footnote practically resolves the dispute in Evenwel and provides the Supreme Court with a clean, uncontroversial and deferential path that should help it steer clear of messy politics.

Here's what it looks like:



This footnote should have appeared in Burns v. Richardson, a 1966 redistricting case from Hawaii. The draft was circulated among the justices two weeks prior to the decision's announcement. But for some reason, it didn't make the cut.

Yale Law Professor Owen Fiss, who worked as a law clerk for Justice William Brennan, the author of the unanimous ruling in 1966, couldn't say why the footnote was left out. "I can't cast any light on this lost footnote," he said.

Burns matters because it was one of the court's final experiments with what Muller calls "federal judicial micromanagement" of state electoral maps, the very thing Baker wrought in 1962. And what better state to rein in micromanagement than Hawaii, whose geography and sizable military presence, the vast majority unregistered voters, shifted the power dynamics in the state.

So the Supreme Court deferred to Hawaii. And the discarded footnote, in a symbolic way, aptly reflected the court's seeming change of heart. In the final opinion, right around where the footnote got cut, the court adopted the view that the ultimate "decision to include or exclude" an otherwise ineligible group "involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere."

In other words: "Let's stay out of it and let the states decide for themselves."

Of course, the downside of a similar pronouncement in Evenwel is that states could run away with it and then have too much freedom to experiment with questionable apportionment schemes. So a rule of deference could cut both ways.

Daniel Tokaji, a Law Professor at Ohio State University, assessed the consequences of Evenwel in an article for the American Constitutional Society. "Blue states will surely continue to draw districts based on total population," he writes, "but we can expect red states to choose a narrower metric, one that diminishes the voting strength of minority communities and others with large non-voting populations."

The upshot is that current Supreme Court is far and away a conservative court, highly respectful of principles of federalism and states' rights. And for all the doom and gloom that Evenwel stands for, the court may very well just take the path of least resistance and defer to the states.











NYC Wins When Everyone Can Vote! Michael H. Drucker

How Should We Measure One Person, One Vote?

A half-century after the Supreme Court declared the democratic ideal that the voters within a state should be equal to each other, it has indicated that it is finally ready to say how that should be measured. “One person, one vote” was a very simple constitutional slogan. But what does it mean, in the real world of sorting out election opportunity?

Next Tuesday, December 8, the Court will take up the case of Evenwel v. Abbott, a Texas case in which two voters have complained that, because they were placed in two State Senate districts with many other voters, their votes count for less than those in other districts with fewer voters eligible to go to the polls. Their plea raises the profound question, as important in practice as it is in theory: what, in a democracy, does representation mean?

The Supreme Court famously said, in 1964, that “legislators represent people, not trees or acres.” That was its basic explanation for getting away from the traditional pattern of mapping election districts by geographic area, rather than by the people who are to be represented.

But the lingering question is: who are “the people” who are represented?

- They could be the voters who actually go to the polls to exercise that right.

- They could be the people eligible to vote, many of whom stay away from the polls.

- They could be only U.S. citizens.

- They could be all the people, even those who do not have the right to vote, because they are children, non-citizens, or prison inmates, for example.

Actually, when the Supreme Court's 1964 decision in Reynolds v. Sims first mandated equality, it used the idea of population and voters interchangeably. “The overriding objective,” it said, “must be substantial equality among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the state.”

It is possible, some mathematicians argue, that a legislature, drawing up districts for election purposes, can achieve both absolute equality of population among the districts and absolute equality among the voters in those districts. That can be done, they say, because census data is now very precise and computer technology is exceedingly sophisticated.

So how would it be possible, then, if population is made equal among districts, to have the power to vote come out unequally? Lawyers for the two Texas voters whose appeal the Court will hear next week have provided examples. Their case arose when the State Legislature was drawing new districting maps for electing the thirty-one members of the State Senate following the 2010 census.

Here is their hypothetical example: “The legislature could have adopted a Senate map containing thirty-one districts of equal total population without violating the one-person, one-vote principle, even if thirty of the districts each contained one voter and the thirty-first district contained all other voters in the state.”

That was the hypothetical. The real arrangement they were complaining about began when the legislature chose total population as its starting point, then simply divided it by thirty-one, giving an “ideal” population measure for each district. Then, taking into account local arrangements such as county lines and existing district maps, the legislature moved the district lines around to get within the ten percent shy of absolute mathematical equality that the Supreme Court has said is permissible.

In Texas, this meant there was only an 8.4% difference between the population of the largest Senate district and that of the smallest one. That was enough, a federal court concluded when the maps were challenged, to achieve the “one person, one vote” objective.

But the two voters wanted the legislature to start and finish with some measure of voters, not total population. The legislature, under this scenario, would have to take into account the numbers of actual or potential voters put in each district, using voting age, voter registration or participation, or citizenship as a measure, and try to even them out. But, using total population, the resulting maps crowded a lot of non-voters into some districts, while leaving others with fewer voters.

Because each district would elect only one State Senator, the power of each voter’s ballot would be greater in those districts with fewer actual or potential voters, than those who wound up in districts with larger numbers of voters. For those in the latter group, their votes were said to be diluted, each ballot had less electoral clout when cast.

The two voters making the challenge in this case were Sue Evenwel and Edward Pfenninger. Evenwel lived in what wound up as District 1. Using any one of seven measures of voters, Evenwel’s vote would count as only about forty percent as effective as in an “ideal” district,total population divided by thirty-one. Pfenninger landed in District 4, and using the same voter measures, his vote was calculated as between thirty and forty percent as effective as in an “ideal” district.

That, their lawsuit contended, violated the “one person, one vote” principle because they were not treated equally with some of their neighbors in Texas. “A statewide districting plan that distributes voters or potential voters in a grossly uneven way,” they argued, “is patently unconstitutional under Reynolds v. Sims and its progeny.”

A three-judge federal district court rejected their challenge, saying that the Supreme Court had left it to the legislatures to decide which metric to use in drawing new districting maps. The one constitutional measure, they said, was that the metric chosen not discriminate against selected groups of voters.

Taking the case on to the Supreme Court, the two Texas voters posed a single question: did the principle of “one person, one vote” give them a court-enforceable right “ensuring that the districting process does not deny voters an equal vote”? It is voter equality, they insisted, that the Constitution mandates.

Their petition cited a now-famous dissenting opinion by Ninth Circuit Judge Alex Kozinski in 1991, declaring that the celebrated phrase proclaimed by the Supreme Court “is an important clue that the Court’s primary concern is with equalizing the voting power of electors, making sure that each voter gets one vote, not two, five, ten, or one-half.”

The Court agreed on May 26 that it had jurisdiction to hear the case from a three-judge trial court, and granted review.

The case is set for argument at 11 a.m. next Tuesday. William S. Consovoy, an attorney with Consovoy, McCarthy and Park PLLC in Arlington, Va., will represent the voters, with thirty minutes of time. Texas’s Solicitor General, Scott A. Keller, will argue for the State, with twenty minutes. Deputy U.S. Solicitor General Ian H. Gershengorn will represent the Federal Government, with ten minutes.

I think since an elected official should represent all the people in their covered area, I would use population and not voters as the test.











NYC Wins When Everyone Can Vote! Michael H. Drucker

Supreme Court Sets Dec. 8 for Oral Arguments on Two One Person-One Vote Cases

The Supreme Court on Friday released the calendar of oral arguments for December 2015.

Tuesday, December 8, 2015 - The following cases will be heard:

Harris v. Arizona Independent Redistricting Commission
Claims of “one person, one vote” and partisan gerrymandering violations in State Legislative Redistricting.

CLICK HERE to read more about this case, Docket Number:14-232.

Evenwel v. Abbott
Definition of population measure to be used in election redistricting to satisfy “one person, one vote” principle.

CLICK HERE to read more about this case, Docket Number:14-940.











NYC Wins When Everyone Can Vote! Michael H. Drucker

The Latest Gerrymander: Voters Instead of People

Alan B. Morrison, the Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law, has this article on Huff Post Politics.

When most people propose changes in our electoral system, they generally do so in order to achieve a political end, not because the change conforms to a platonic ideal of what elections should be like. So it is with the plaintiffs in Evenwel v. Abbott, No. 14-940, which the Supreme Court will hear this fall. Their claim is that, when states draw their legislative districts, the Equal Protection Clause requires that they use the numbers of voters, instead of the number of people, as the basis for allocating seats within the states.

The Supreme Court has ended the most blatant forms of gerrymandering and required legislative districts at both the state and federal level to be equal in composition within each state. The Court's rulings have been labeled "one person, one-vote," and the general assumption has been that, in dividing up each house by districts, the denominator has been the total population of the state.

Evenwel challenges that assumption and argues that, because the goal of one person, one vote is to have each person's vote count the same as every other person's, the denominator should be total voters and not total population. If this were the law, the main groups that would no longer be counted are children, illegal immigrants, those not registered to vote, and felons who are precluded from voting. Until the actual lines are drawn for all the districts in a state, the results are not certain. But we do know that the backer of this lawsuit (Edward Blum) also supports Fisher v. University of Texas, which seeks the elimination of affirmative action in university admission. Therefore, it is reasonable to assume that he believes that the change would have an adverse impact on minorities and their Democratic supporters, or at least it has that potential in some states, including Texas where the case was brought.

CLICK HERE to read the article.











NYC Wins When Everyone Can Vote! Michael H. Drucker

AZ New Independent Redistricting Commission Case for October Session

Twenty-four hours after giving constitutional backing for Arizona’s use of an independent commission to draw new election district maps for its members of Congress, the Supreme Court on Tuesday took on a case complaining that the same state agency wrongly used race and partisanship in crafting state legislative district boundaries.

The new election law case, Harris v. Arizona Independent Redistricting Commission, was apparently held inactive on the Court’s docket until it ruled on a claim by the state legislature that it was unconstitutional to hand the congressional redistricting task to an independent agency not elected by the people.

The Court ordered a review of how the commission handled the fashioning of state legislative election maps in the wake of the 2010 Census.

A group of Arizona voters raised a number of issues in the new case: that the 2012 state legislative maps violated the “one person, one vote” requirement of population equality among districts because Republican voters were packed into districts to enhance minority voter strength in other districts, that this treatment of Republican voters used partisan factors illegally, and that the commission illegally sought to create districts dominated by Hispanics to enhance their voting power.

These uses of race and partisanship, the new appeal argued, were done to try to enhance prospects that the U.S. Department of Justice would approve the new maps under the Voting Rights Act, at a time when Arizona had to get such clearance before implementing new election laws. That preclearance requirement has now been wiped out by the Supreme Court, the voters’ lawyers noted, so such factors can no longer be justified.

The Court has already agreed to rule at its next Term on a case that also tests the application of the one-person, one-vote principle. The issue in Evenwel v. Abbott is whether the process of redistricting should use population measured by voters in each district, or total population in each, in judging whether the equality of representation rule has been violated.

UPDATE
On July 2, 2015, the review of the case in the Court’s next Term will be confined to two issues, paraphrased as follows:

** Does the desire to give one party an election advantage justify sharp deviations from the principle of population equality among districts, in violation of the one-person, one-vote principle?

** Does the desire to gain approval by the U.S. Department of Justice Department for new redistricting maps justify such deviations in population equality, especially since Department approval is no longer a requirement?

The case is likely to come up for a hearing in December or January.











NYC Wins When Everyone Can Vote! Michael H. Drucker