One-Person/One-Vote. Really?

December 7, 2015

The U.S. Supreme Court hosts One-Person/One-Vote day on December 8. The Court will hear oral arguments in Evenwel v. Abbott, No. 14-940 and Harris v. Arizona Independent Redistricting Commission, No. 14-232. Both cases address the concept that our representatives should be distributed among us with a very high degree of equality.

In 1962, in Baker v. Carr, the Court wandered into the redistricting thicket. It held that legislative districts must be proportional in size, and that states cannot fail to redistrict for some 60 years. (Tennessee, where the case originated, had last done a redistricting in 1901.)

Reynolds v. Sims came two years after Baker v. Carr. It really honed in on the concept of drawing districts based on population. Alas, the Court did not distinguish between people and voters.

In Evenwel, the plaintiffs argue that one-person/one-vote should not be the standard. Instead, the standard should be one-voter/one-vote. They believe they are underrepresented because, although all state senate districts have roughly equal numbers of people, some have many fewer eligible voters. (The case comes out of Texas, with a substantial non-citizen population.)

Lyle Denniston, for SCOTUSblog, has written Argument Preview: How to Measure “One Person, One Vote”. It’s an excellent overview of a complicated set of concepts.

I also really enjoyed Evenwel v. Abbott and the Constitution’s Big Data Problem by Nathaniel Persily. Professor Persily, who teaches law at Stanford University, really nails the absurdity of this case. Data—necessary for making decisions during redistricting—is simply not accurate enough for the endeavor, to get to numbers as precise as the plaintiffs seek. I’ve read the Persily piece twice. Each time, I’ve thought of the guide at the museum, telling visitors a dinosaur is 1,000,006 years old. Why? Because it was 1,000,000 six years ago, when he was hired. Trying to be precise in an inherently imprecise setting is stupid, plain and simple.

The case begs many other issues. Do legislators represent people, or voters? What about an area with many eligible, unregistered voters? With redistricting every 10 years, and births, deaths, and people moving, we will have disparities in the later years: do we accept them, in the face of an attempt to fine tune on the front end?

I assume the usual suspects on the right accepted this case for review. Expect a really bad decision if the plaintiffs prevail, politics aside.

Harris puts the Arizona Independent Redistricting Commission before the Court again. Last year, the Court upheld the existence of the Commission in Arizona State Legislature v. Arizona Independent Redistricting Commission. Now, the plaintiffs challenge the apportionment itself. The case turns on population variances which adversely affect Republicans in Arizona, according to the plaintiffs. (Those few of us in Arizona who do not vote for Rs, mostly, do not quickly accept the notion that anything in Arizona adversely affects Rs.)

The argument and the decision will likely turn on the interplay between the Voting Rights Act pre-clearance provision* and the need for an equal distribution, subject only to “compactness, contiguity, and preserving political subdivisions and communities of interest” as factors which can justify variances. (Read Does “One Person, One Vote” Yield to Partisan Politics or the Voting Rights Act? by Amy Howe, for SCOTUSblog, for a much deeper dive.)

In Baker v. Carr Justices Frankfurter and Harlan dissented. Justice Frankfurter wrote, about the notion that the Court should weigh in on the loss of voting power, thusly: “A hypothetical claim resting on abstract assumptions is now for the first time made the basis for affording illusory relief for a particular evil even though it foreshadows deeper and more pervasive difficulties in consequence.” As I watch us wander ever deeper into battles about power, too many of which get decided by the U.S. Supreme Court, I find myself thinking this ornery conservative was righter than many thought.


*The Court dumped the whole pre-clearance process in 2013 in Shelby County v. Holder.


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