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
A Fourth Path in Evenwel: What Campaign Finance Jurisprudence Tells Us About Legislative Redistricting
Michael T. Morley
On December 8, 2015, the Supreme Court will hear oral argument in Evenwel v. Abbott, No. 14-940 (U.S. 2015), in which the Petitioners, a pair of Texas voters, seek to dramatically change the constitutional requirements for redistricting state legislatures.The case presents an interesting and important three-way dispute between the voters, the State of Texas, and the Government, which was granted leave to participate and argue as amicus curiae.The voters contend that the “one man, one vote” principle embodied in the Fourteenth Amendment’s Equal Protection Clause requires states to draw state legislative districts in a way that equalizes, to the greatest extent possible, the number of eligible voters in each district.They have challenged the constitutionality of Texas’ legislative districts, which were drawn to equalize the total number of people in each district, regardless of their eligibility to vote.Petitioners have shouldered the unenviable burden of establishing that the manner in which virtually every jurisdiction in the nation chooses to draw state legislative districts is unconstitutional.
The State of Texas, in contrast, contends that the Equal Protection Clause gives states discretion to choose whether to equalize the number of eligible voters, or instead the total number of people, in each district.The Government, borrowing from Alexander Bickel, invites the Court to issue a more minimal ruling.Pointing out that Texas has drawn its legislative districts based on total population, it asks the Court to affirm the constitutionality of that approach without ruling on whether the Petitioners’ proposed alternative—equalizing the number of eligible voters in each district—would be permissible, as well.
The Government goes on to strongly imply, however, that Petitioners’ proposed method for drawing legislative districts is unconstitutional.Allocating state representatives based solely on the number of eligible voters in each district, the Government argues, “risks rendering residents of this country who are ineligible, unwilling, or unable to vote as invisible or irrelevant to our system of representative democracy. . . .A redistricting plan based on voters alone risks sending the distinct message that the political system is responsive to no one else.”The Government later elaborates, “Viewing people who do not vote as irrelevant to our system of representation would be especially inappropriate given that distribution of public resources tends to correlate with the distribution of political representation.”
The Solicitor General’s concern about rendering certain people “invisible” sounds less like traditional legal argument than the political rhetoric of the Obama Administration.More importantly, the Government’s arguments about the people to whom the Government itself should be accountable ignores a rich and fertile body of precedent that addresses this very issue:campaign finance law.Indeed, it appears that none of the more than two dozen briefs filed in Evenwel seek guidance from the Court’s campaign finance jurisprudence.
Bluman v FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d 132 S. Ct. 1087 (2012) (mem.),was a unanimous ruling of a three-judge panel of the U.S. District Court for the District of Columbia, which the Supreme Court summarily affirmed.The plaintiffs in Bluman challenged the constitutionality of a federal law prohibiting foreign nationals, except for lawful permanent residents, from contributing to federal candidates, political parties, or most political action committees (PACs), or making independent expenditures concerning federal elections.52 U.S.C. § 30121(a).By way of background, the Court has treated independent expenditures—i.e., money that a person spends on election-related advocacy without coordinating with a candidate or political party—as pure speech entitled to maximum First Amendment protection.Pretty much everybody gets to make unlimited independent expenditures, including (most) individuals, Buckley v. Valeo, 424 U.S. 1, 39 (1976); political action committees, FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 496 (1985); political parties, Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 614 (1996); and even corporations, Citizens United v. FEC, 558 U.S. 310, 365 (2010).Lower courts have gone even further and held that the Government may not limit the amount a person may contribute to an entity that solely engages in independent expenditures.See, e.g., SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc).A challenge to restrictions on independent expenditures is generally the jurisprudential equivalent of Star Wars: The Force Returns:a virtually guaranteed, sure-fire, smash success.
But not in Bluman.The three-judge district court—in a ruling unanimously affirmed by the Supreme Court—held that the Government may prohibit foreign nationals (other than lawful permanent residents) from making political contributions or even election-related independent expenditures.Bluman, 800 F. Supp. 2d at 292.The panel surveyed a variety of holdings in which the Supreme Court had held that non-citizens may be excluded from activities “‘intimately related to the processes of democratic self-government,’” id. at 287 (quoting Bernal v. Fainter, 467 U.S. 216, 220 (1984)), including working as a probation officer, id. at 287 (citing Caball v. Chavez-Salido, 454 U.S. 432 (1982)), or police officer, id. (citing Foley v. Connelie, 435 U.S. 291 (1978)), or serving as a juror, id. (citing Perkins v. Smith, 370 F. Supp. 134 (D. Md. 1974), aff’d 426 U.S. 913 (1976)).Quoting Foley,the Bluman Court stated, “‘[A] State’s historical power to exclude aliens from participation in its democratic political institutions [is] part of the sovereign’s obligation to preserve the basic conception of a political community.’”Id. (quoting 435 U.S. at 295-96 (internal quotation marks and citations omitted)).The court concluded, “It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest . . . [in] preventing foreign influence over the U.S. political process.”Id. at 288.
Thus, the Supreme Court already has wrestled with the issue of whether non-citizens are “irrelevant to our system of representative democracy” in the context of campaign finance law.Contrary to the Obama Administration’s arguments, the answer, for the most part, is a resounding “yes.”By affirming the panel ruling in Bluman, the Court recognized that the Constitution affords each state broad discretion to determine the extent to which non-citizens other than lawful permanent residents should be welcomed into its political community.A state’s constitutional prerogative to exclude non-citizens from its processes of democratic self-governance implies, at a minimum, the authority to refuse to consider such individuals when allocating seats in the state legislature.
More broadly, the Supreme Court’s campaign finance jurisprudence emphasizes that “[d]emocracy is premised” on a representative’s “responsiveness” to his or her “voters and contributors.”McConnell v. FEC, 540 U.S. 93, 297 (2003) (opinion of Kennedy, J.); accord Citizens United v. FEC, 558 U.S. 310, 350 (2010); see also McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014) (holding that “responsiveness” to “[c]onstituents” is “key to the very concept of self-governance through elected officials”).As Richard Briffault has pointed out, tension exists among these various assertions, as well as between some of these statements and the holdings of the cases in which they were made.See Richard Briffault, Of Constituents and Contributors, 2015 U. Chi. Legal F. ___ (forthcoming) (pointing out that a representative’s contributors may be very different from her constituents).Nevertheless, none of the visions of democratic responsiveness presented by the Court’s campaign finance jurisprudence includes the notion that elected representatives must be attentive to the interests either of non-citizens, or of anyone who happens to wind up getting counted in a census.To the contrary, the Supreme Court’s campaign finance cases are best read as suggesting that states are free to decide for themselves how broadly or narrowly to define their respective political communities, at least insofar as non-citizens are concerned.On the other hand, while Bluman recognizes the right of governmental entities to protect themselves from foreign influence, it does not suggest that such insulation is constitutionally required. Thus, neither Petitioners’ nor the Government’s position is quite right.
Of course, non-citizens are not the only people who would be ignored if states conducted legislative redistricting under the “eligible voters only” approach that the Petitioners contend is constitutionally mandated, and that the State of Texas contends is constitutionally permissible.Children, very new residents, and felons also are among those who would be disregarded if states count only eligible voters.While the Supreme Court has recognized that states may deny members of such groups the right to vote, see, e.g., Richardson v. Ramirez, 418 U.S. 24 (1974) (affirming bar on felon voting); Dunn v. Blumstein, 405 U.S. 330, 348-49 (1972) (stating that residency requirements of 30 days are valid), precedent does not provide a basis for going even further and completely excising such people from the political system.To the contrary, in McConnell v. FEC, 540 U.S. 93, 231 (2003) (opinion of Rehnquist, C.J.), an overwhelming majority of the Court invalidated a provision of the Bipartisan Campaign Reform Act (“BCRA”), Pub. L. No. 107-155, § 318, 116 Stat. 81, 109 (Mar. 27, 2002), codified at 52 U.S.C. § 30126, which completely prohibited minors from contributing to candidates or political parties.Campaign finance law demonstrates that, while minors may not vote, they cannot be completely excluded from the political community (at least if they are citizens or lawful permanent residents).From this perspective, Texas’ claim that the Constitution allows states, if they wish, to count only eligible voters when conducting legislative redistricting also seems problematic.
Thus, the Court’s campaign finance jurisprudence suggests that none of the three major players in Evenwel may be advocating the correct solution.A fourth approach might fit best with the fabric of the Court’s precedents:when drawing legislative districts, a state is required to count all U.S. citizens (whether or not they are eligible voters), is probably required to count lawful permanent residents, and has discretion as to whether to define its political community expansively, by counting other non-citizens (including undocumented immigrants), or narrowly, by excluding them.
One might object, of course, that instead of considering campaign finance jurisprudence, the Court instead should simply apply § 2 of the Fourteenth Amendment to state legislative apportionment.Section 2 provides that U.S. Representatives shall be “apportioned among the several States” according to “the whole number of persons in each State, excluding Indians not taxed.”The Court undoubtedly will be tempted to borrow this clear, objective standard and apply it to the very similar context of allocating state-level representatives.This approach would be misguided for a variety of reasons.First, most basically, § 2 does not purport to apply to state legislators.The fact that the Framers chose to retain this procedure for allocating federal representatives does not suggest that it is a necessary implication, or the only valid interpretation, of the Equal Protection Clause, which is the provision the Evenwel Court must construe.
Second, each state has a much greater sovereignty interest in the structure and arrangement of its own government than in the allocation of federal representatives across the nation.See generally Gregory v. Ashcroft, 501 U.S. 452, 463-64 (1991).The fact that the Constitution sets forth a single uniform standard for apportioning members of the U.S. House is not a sufficient basis for requiring each state to apply that standard to its own legislature.
Third, while it is appealing to seek symmetry between state and federal systems of representation, the very “One Man, One Vote” jurisprudence that Evenwel seeks to clarify rejects that approach.The Supreme Court has invalidated states’ attempts to fashion their voting systems for state offices after the U.S. Senate, Reynolds v. Sims, 377 U.S. 533, 572-77 (1964), or Electoral College, Gray v. Sanders, 372 U.S. 368, 378-79 (1963).These precedents undercut the notion that a state is nevertheless constitutionally required to model its state legislature after the U.S. House of Representatives.Indeed, more broadly, symmetry may not apply to federal and state electoral systems.Courts have recognized that states might choose to establish separate registration systems for federal and state elections, leaving open the possibility that some people might be permitted to vote in federal elections, but not state or local ones.See, e.g., Gonzalez v. Arizona, 677 F.3d 383, 404 n.30 (9th Cir. 2012) (en banc) (noting, but not adjudicating, the issue).Therefore, the fact that the Constitution adopts a particular method for allocating federal representatives among states does not suggest that such a system is mandatory for state legislators, as well.
Finally, from a historical perspective, § 2 of the Fourteenth Amendment was deliberately crafted to preserve a measure state sovereignty with regard to voting rights, as I explain in my forthcoming piece, Michael T. Morley, Remedial Equilibration and the Right to Vote Under § 2 of the Fourteenth Amendment, 2015 U. Chi. Legal F. ___ (forthcoming).The Framers of the Fourteenth Amendment considered and rejected provisions that would have expressly required states to extend the franchise to all adult male citizens, or instead prohibited states from denying the franchise based on race, as the Fifteenth Amendment later did.Instead, § 2 creates a complex system under which each state is allotted a certain number of representatives based on its population, and then that allotment is reduced based on the percentage of adult, non-felon citizens whose right to vote is denied or abridged (§ 2’s age and gender restrictions likely have been changed by the Nineteenth and Twenty-Sixth Amendments, respectively).
As explained by Rep. Thaddeus Stevens, one of § 2’s primary drafters, § 2 was intended to “either . . . compel the States to grant universal suffrage,” or instead “so shear them of their power as to keep them forever in a hopeless minority in the national Government.”Cong. Globe, 39th Cong., 1st Sess. 2459 (May 8, 1866).The debates confirm that the Framers deliberately crafted § 2 to allow each state to retain full authority to make that decision for itself; indeed, even many Republicans did not expect southern states to immediately expand the franchise to formerly enslaved people.Requiring states to apply § 2’s population-based apportionment approach to state legislatures would be inconsistent with its Framers’ goal of preserving a measure of state sovereignty while expanding voting rights.
Thus, § 2 is insufficient to resolve the question at issue in Evenwel.While the system it sets forth surely provides a constitutionally valid basis upon which to conduct state legislative redistricting, it is not constitutionally required.Throughout its campaign finance jurisprudence, in contrast, the Court has given careful (if imperfect) thought to the nature of democratic government, the meaning of representation, and even the role of non-citizens in our political system.These precedents offer a somewhat more nuanced conclusion than either § 2 or the litigants in Evenwel themselves suggest:states are constitutionally required to count all citizens (and likely lawful permanent residents, as well) when redistricting their legislatures, but have discretion to decide whether to count non-citizens.
Michael T. Morley is Assistant Professor at Barry University, Dwayne O. Andreas School of Law. You can reach him be e-mail at MMorley at barry.edu.