an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In 1964, in Reynolds v. Sims, the Court built a formidable doctrinal machine for attacking a then-widespread form of injustice: the extreme malapportionment of legislative bodies across the nation, which systematically favored rural areas over urban ones. Adults over a certain age will remember when this machine was known as “one-man-one-vote” (interesting and a real sign of the times: women had had the vote for over 40 years, but the women's movement was still in the future). Anyway, today it’s known as one-person-one-vote. And it has been unbelievably successful. It is one of the Court’s most celebrated lines of cases and one that vindicated the Court in the eyes of much of the American public. At the same time, the one-person-one-vote doctrine has always been, as we say in the trade, undertheorized. That is the academic way of saying that the Court knows what it’s doing, but isn’t really able to explain why it’s doing it.
It turns out that there is a key ambiguity lurking in one-person-one-vote: are the districts supposed to contain equal numbers of people, or equal numbers of voters? Every state in the nation currently says, people. Each representative has the same number of constituents as any other. No constituent counts less than any other, even if that constituent is a child or an immigrant. But that means that some districts—urban, young, lots of immigrants—have fewer voters than other districts, that are older, whiter, more rural, and more exclusively native-born. Thus, some conservative legal entrepreneurs have long been itching to challenge the way the business of redistricting gets done across the U.S. If only they could somehow force a switch from equal total population to equal numbers of some smaller and more exclusive number—actual voters, registered voters, eligible voters, citizen voting age population (CVAP), CVAP adjusted to exclude disenfranchised felons, etc. etc. (they actually can’t seem to pick just one but you get the general idea)—then we’d see a major power shift. It would be a power shift almost perfectly calibrated to benefit the Republican party. The losers would be urban areas with lots of children and lots of racially diverse immigrants. The winners would be older, whiter, more suburban and rural areas. It would be a power shift on a scale American redistricting law has not seen since the 1960s: while not nearly as dramatic as the original reapportionment revolution, it would require every map in every state to be redrawn, with the same general pattern of winners and losers.
This sounds like a Republican pipe dream, and that’s largely how many election law experts viewed it. Until this morning, when the Supreme Court “noted probable jurisdiction” (i.e. set for oral argument, like a cert grant) a long-shot case initiated by conservative impact-litigation impresario Ed Blum. The case, Evenwel v. Abbott, alleges that Texas unconstitutionally diluted the weight of the votes of some of the folks in a whiter, older, less-immigrant-heavy district by giving them only one representative, whereas the district next door, with equal total population but far fewer voters, also gets one representative. Focusing on the abstract idea of an individual’s voting power or the weight of her vote, the plaintiffs see “dilution” because there will be more voters voting in their district than in the other one, so each individual voter will have proportionately less clout. For the reasons I explain in more detail in this essay in the Yale Law Journal, I’m highly skeptical that this notion of an individual voter’s power or weight can bear the weight of this claim. This notion of the power or weight of one vote, on close examination, turns out to be surprisingly inchoate and weak. (And in practical terms, the simplest way to raise or lower the “weight” of a vote is just to raise or lower turnout: the more other people vote, the less power each vote has. But not even Ed Blum wants to redistrict based on actual voter turnout.)
So what is really driving the one-person-one-vote cases? You see a hint of the answer in the most famous line (and rightly so) in Chief Justice Earl Warren’s opinion in Reynolds v. Sims: “Legislators represent people, not trees or acres.” That sentence gets to the heart of the matter. So does another, more rarely quoted, that follows in the same paragraph. Just as it would be unconstitutional to give some people five or ten votes and others only one, it is unconstitutional to “give the same number of representatives to unequal numbers of constituents.” This is the normative engine that drives Reynolds v. Sims. The injustice that drives the case, and led to one-person-one-vote litigation in the first place, was the sense that rural areas had locked in lots of extra representation, and indeed had locked up the entire political systems of their states, while in the cities, a comparatively small number of representatives struggled to serve and represent the interests of vastly more constituents.
But: who counts as a constituent? That’s the question, long latent, that the Court has decided to decide in Evenwel. Essentially, the plaintiffs’ claim is that only eligible voters really count as constituents—and that the Fourteenth Amendment therefore requires all jurisdictions to draw lines that ignore human beings other than eligible voters. But wait, an astute reader of the Constitution might ask at this point, isn’t there something in the Fourteenth Amendment itself about this? Doesn’t it say, “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed”?
Why yes. Indeed it does. One of the interesting things to watch in the briefs and oral argument in Evenwel is what the plaintiffs (and the defendants) say about this clause, the first sentence of Section 2 of the Fourteenth Amendment, the one that did away with the Three Fifths Clause and declared that everybody (except Indians not taxed) counts equally for purposes of apportionment.
Apportionment, of course, is not districting. And so it might be that while Congress must divide the nation into Congressional districts based on total population, states are permitted (required?) to use some other basis like CVAP. But the relationship between apportionment and districting is pretty tight. Not to put too fine a point on it, but Texas got four new representatives in the U.S. House in the most recent redistricting cycle, all four of which can be attributed to Latino population growth. If the plaintiffs in Evenwel win their case, then Texas would essentially have to take those four new seats, say “thanks, Latinos!”, and allocate them not to the Latino areas where population is actually growing quickly—where children and immigrants are plentiful and voters are fewer—but instead give them all as a huge political windfall to a bunch of older, whiter areas like those the Evenwel plaintiffs call home. And all this, supposedly, to vindicate the Equal Protection Clause, which was ratified as part of the same Amendment with the clause unambiguously requiring apportionment on the basis of “whole number of Persons.”
Throughout American history, people have counted as constituents who were not eligible to vote. Women count as constituents before 1920 (including in the Fourteenth Amendment, despite that odious language reserving some never-used penalties for states that disenfranchise male voters). Children count as constituents. Immigrants on their way to becoming citizens, who cannot yet vote, count as constituents. And non-voters most assuredly count as constituents. These people matter to any competent elected official not because they are voters, but because they are people—and they are in that official’s district. If this elected official won’t represent them and look after their interests, who will?
Of late, the Court has been playing a little fast and loose with the concept of a constituent, and interestingly, recently declared a certain kind of non-voter to be a constituent. Specifically: last summer in McCutcheon v. FEC, the Court appeared to view donors, even out-of-state donors, as “constituents.” This is a radical idea. It would mean that legislators represent, in certain instances, not people or trees or acres (or voters), but dollars. It is an idea of representation that ought to make even a hardcore conservative Justice blush a little.
And so the question before the Court now is this: does a poor, urban, Latino kid, not yet 18, deserve to be able to say “this representative represents me. Not acres, trees, dollars, active voters, and so on, but me—I am their constituent.” Or to put it differently: the question is whether the cities should enjoy the same per capita representation as their suburban and rural, whiter, older counterparts. And what an odd coincidence: that was actually the original question in Reynolds v. Sims itself. But like so much in contemporary constitutional litigation in the era of John Roberts and Ed Blum, the Evenwel case comes at the law in a kind of funhouse-mirror reverse, aiming to destroy in Equal Protection’s name a substantial chunk of what that clause has built. Posted
by Joseph Fishkin [link]