December 5, 2005

Alito and "one person, one vote" reapportionment.

The NYT reports on Samuel Alito and the strong influence his father had on him. Telling the nominee's life story has become a crucial part of the confirmation process, and Alito has a special need to explain the opposition to the "one person, one vote" principle of legislative apportionment, which he stated in a 1985 job application. Here, the life story component is surprisingly rich:
When ... Democrats pressed Judge Alito about why he had once disagreed with the Warren Court decision that established the "one person, one vote" standard for state districts, he again recalled the legacy of his father, Samuel A. Alito, who worked for three decades as the director of research for the New Jersey Legislature.

In his bedroom at night as a boy, Judge Alito told senators, he could hear his father clicking away at a manual calculator as he struggled to redraw the state's legislative districts with equal populations, people present for the conversations said....

As director of research for the New Jersey Legislature, the elder Mr. Alito became known as a human encyclopedia of state demographics and legislative history....

Although he was a registered Republican, Mr. Alito was obsessive about avoiding any perception of partisanship in his office. Many of his colleagues said he never revealed any hint of his own inclinations on political issues, aside from the Legislature's importance to the state....

The elder Mr. Alito's highest-profile role came when the Supreme Court's "reapportionment" cases in the 1960's established the principle that state legislative voting districts must be of equal population: one person, one vote. The redrawing of New Jersey's districts started 20 years of legal and legislative battles full of risks for incumbent lawmakers. The issue was also rife with racial tensions between urban minorities and the mostly white suburbs, and as director of research, Mr. Alito was in charge of drafting the maps.

"He was walking a fine line," said Jack Lacy, a former Town Council member in Hamilton Township, N.J., who was a friend of the Alitos. "And he not only survived it, he enhanced his reputation."
We're so accustomed to the plain, abstract fairness of the "one person, one vote" standard that we may assume only a bigot would oppose it. But the story of the elder Alito struggling to fit the abstraction to the real world ought to make us want to moderate that assumption.

It's worth going back and reading or rereading the reasons Justice Frankfurter gave for opposing judicial reapportionment, back in 1962:
Apportionment, by its character, is a subject of extraordinary complexity, involving -- even after the fundamental theoretical issues concerning what is to be represented in a representative legislature have been fought out or compromised -- considerations of geography, demography, electoral convenience, economic and social cohesions or divergencies among particular local groups, communications, the practical effects of political institutions like the lobby and the city machine, ancient traditions and ties of settled usage, respect for proven incumbents of long experience and senior status, mathematical mechanics, censuses compiling relevant data, and a host of others. Legislative responses throughout the country to the reapportionment demands of the 1960 Census have glaringly confirmed that these are not factors that lend themselves to evaluations of a nature that are the staple of judicial determinations or for which judges are equipped to adjudicate by legal training or experience or native wit. And this is the more so true because, in every strand of this complicated, intricate web of values meet the contending forces of partisan politics. The practical significance of apportionment is that the next election results may differ because of it. Apportionment battles are overwhelmingly party or intra-party contests. It will add a virulent source of friction and tension in federal-state relations to embroil the federal judiciary in them.

29 comments:

Al Maviva said...

Like “Roe v. Wade,” “one person one vote” has an attractive or at least neutral ring to it, until you get into the details of how it is actually operationalized.

One person, one vote, precisely balanced to create some form of racial parity in the legislature, white conservatives trading voters with black liberals to create safely ghetto-ized seats, Tom Delay “steals” three Democratic districts through creative/off-year redistricting. Ick.

At its most fundamental level, prohibiting the dilution of minority votes based on racial animus is the legally and intuitively correct thing to do. The way the principle has been implemented, however, is highly distasteful and in some respects contrary to the basic notion of democracy, which is that the people actually get a chance to decide issues every so often. That just doesn’t happen where 90%+ of the seats are so carefully gerrymandered as to be “safe” and permanently in one or the other party’s column.

Expect comparisons of Alito to a lynch mob leader to be forthcoming based on this revelation. First off, it lends itself to manipulative and deceptive sound-biting. Second, the mainline traditional civil rights groups have much to lose by any kind of a thoroughgoing re-look at the implementation of one person, one vote standard.

the pooka said...

Ann, I don't buy it. That may have been how reapportionment and redistricting were done four decades ago, but no more. GIS technology and high-powered computing means that the gold standard of reapportionment -- equally-populous districts -- is very achievable, and usually in a very large (effectively, infinite) number of ways.

That gets to redistricting, which is a very different animal than reapportionment. I dislike partisan redistricting as much as anyone, and think most of the ideas out there for non- or bipartisan "blue ribbon commissions" to slice up that baby are good ones. But none of that need have anything to do with the basic idea that malapportionment is bad, and should be avoided. For Alito to suggest otherwise displays either bad faith or a striking ignorance of exactly how district lines are drawn in 2005 America.

Ann Althouse said...

Pooka: What is the "it" that you don't buy? The "it" should be: Alito's explanation of why he wrote what he did on the 1985 job application. To that, recent computer programs are irrelevant. The point is, before the courts became involved, lines were drawn based on geography and residence patterns. With the new standard, it became much more difficult to draw the lines (and much more subject to manipulation). Alito's perception that the constitutional standard was harmful is not as ugly as his opponents are making it look. That's all I'm asking you to "buy."

Simon said...

Sen. Specter poses a question on exactly this issue in his letter to Judge Alito:

"Do you agree with Justice O'Connor's view that race is qualitatively different and classifying voters based on race is inherently dangerous and divisive? Or do you believe, like Justices Stevens and Ginsburg, that race can be a proxy for voters' viewpoints, just like union membership, rural background, or religion? Which view best reflects your jurisprudence on this issue?"

I have been drafting a blog post mooting answers to Sen. Specter's questions, which it seems appropriate to float here.

I agree with the view that race, religion, union membership and other such factors are inherently invalid considerations when contemplating the drawing of legislative districts. It would seem to me that, so far as is possible, the principle of "one person, one vote" should apply when drawing up districts. However, I recognize that states may have compelling reasons for drawing up districts with unequal populations in at least one chamber of their legislature. The United States Senate and the Electoral College act to preclude the supremacy of majorities, which is in itself a reasonable state objective. They also serve to give greater voice to interests which might not otherwise be represented; the United States is a large and diverse country, a geographic characteristic shared by many of our states. It seems entirely reasonable, to my mind, that a state like Illinois would divide at least one chamber of its legislature by geography rather than population; to do otherwise would essentially give Chicago, being a highly urbanized city, complete and paralyzing control over the vast majority of Illinois, being anything but.

The Supreme Court has permitted certain measures which might lead to discriminatory impact when they are necessary or appropriate to a compelling or important state objective. If a state identifies a reasonable objective which can be served by the apportioning of representatives in one part of a bicameral legislature in unequal districts, I believe that the court should leave that matter to the legislature, unless those divisions are explicitly and clearly designed to produce discriminatory results. That is to say, such a scheme would generally be left to stand provided its goal is not discriminatory, and it practical effect is neither needlessly nor excessively discriminatory.

Jacques Cuze said...

The "it" should be: Alito's explanation of why he wrote what he did on the 1985 job application. To that, recent computer programs are irrelevant.

Believe it or not, we had powerful computers in 1985, and researches and the government and the military definitely were creating equal population maps as early as 1971 (see the inside of the Andromeda Strain for simple examples.)

Simon said...

I should add that I find the equal protection argument for reapportionment as dubious in Reynolds v. Sims, 377 U.S. 533 (1964), as I found it in Bush v. Gore, 531 U.S. 98 (2000).

The Fourteenth Amendment speaks in broad and general terms - broad enough that their original meaning certainly exceeds the original intentions of those who framed and ratified them. But in interpreting the equal protection clause, of course, we are bound by the plain meaning of the text contemporaneous to its ratification, rather than the secret and subjective intentions of its authors. What holds true for statutory interpretation holds also true for constitutional interpretation.

Despite its broad language, whatever the equal protection clause may mean, it surely does not address the franchise. At the time of the ratification of the Fourteenth Amendment, it was not understand to speak to the franchise, for within barely two years, a further amendment, the fifteenth, was promulgated. The fifteenth amendment prohibited the denial of the franchise based on race, which would have been a nullity had equal protection spoken to the franchise. Furthermore, of the eleven amendments subsequently ratified – nine, if we count the prohibition amendments as mutually annihilatory – fully four speak to the franchise, and would therefore have been a nullity had the people who ratified the 19th, 23rd, 24th, 26th amendments believed that "equal protection" spoke to the franchise. Not only did the framers of the fourteenth amendment not believe it to speak to the franchise, but as recently as 1971 – after Baker and after Reynolds – the American people did not, either.

Ann Althouse said...

Quxxo: Alito had first-hand experience seeing how it was done in New Jersey: his dad with a calculator.

Of course, the recent computer programs bring a new set of problems, but these aren't about judicial intervention. They show the problem of leaving it to politics (which is what Frankfurter wanted to do).

brylin said...

I doubt that many have a problem with "one person one vote" in today's world, but what about the "compactness" of a district?
Take, as an example, the bizarre shape of Rep. Murtha's congressional district.

Simon said...

"Take, as an example, the bizarre shape of Rep. Murtha's congressional district."

Indeed. Or, how about the Illinois 15th and 17th, for that matter? The Massachusetts 3rd? The Texas 4th and 15th? Cf. Utah, Indiana, Kentucky, Wisconsin.

Simon said...

Perhaps Ann should hold a contest: commenters nominate and then vote on the most blatantly-gerrymandered district in the 109th Congress. Awarded for a U.S. House district whose boundaries display so reckless an indifference to geography, practicality and reasonableness as to be beyond any doubt that it was drawn to produce a desired balance of votes.

PD Shaw said...

simon:

If you don't want a population center (like Chicago) to exert too much influence, can't you achieve that by requiring super-majority votes on some or all issues? But Chicago isn't the population center it once was, with many voters living in collar counties, wherein they commute to Chicago or have jobs indirectly based on Chicago. You could argue that the interests of Chicago are underrepresented in those circumstances. One job, one vote? (job defined broadly to make sure nobody is disenfranchised)

PD Shaw said...

most blatantly-gerrymandered district?

I vote for the Illinois 17th. A better picture (pdf) of it is here: http://www.illinoisatlas.com/illinois/political/pdf/il_cd2002.pdf

The district appears to dissapear as it nears Springfield, measuring only one block in width as it passes through the more conservative westside and many of those blocks are golf courses, parks and shopping centers with no voters. The district widens to caputure a larger african-american demographic before thinning again to head cross-country to Decatur, a largely Democratic, industrial city.

peter hoh said...

I'm mostly thinking about state legislative districts, but I guess the same would apply to congressional districts. It seems to me that the effort to get equal populations in each district would marginalize some citizens.

Who loses: people who are in one district for a while and in another district the next time lines are drawn. People who live in areas that rarely or never change districts have the chance to build deeper connections with their representatives.

I'm not proposing a solution. Just pointing out how "one person, one vote" does not necessarily give all voters an equal say in their state legislative bodies.

Am I better or worse served with a representative who has a "safe" seat? I don't know, actually. Because my state senator doesn't have to work hard to be re-elected, she can put effort into helping other members of her party get elected. This would seem to strengthen her position, and I guess I'm better served with a more powerful state senator.

On the other hand, knowing that there won't be a competitive race for both the state senate and house anytime soon puts a damper on local-level political activity in this district, which seems to be a negative.

the pooka said...

Ann said:

The "it" should be: Alito's explanation of why he wrote what he did on the 1985 job application. To that, recent computer programs are irrelevant.

Fair enough. But...

The point is, before the courts became involved, lines were drawn based on geography and residence patterns. With the new standard, it became much more difficult to draw the lines (and much more subject to manipulation).

Bit of a non sequitur there. The fact that "lines were drawn based on geography and residence patterns" was, in fact, part of the problem with malapportionment. The whole point of Baker v. Carr was that the political process was being used -- very deliberately and effectively -- to disenfranchise certain individuals for the benefit of others. I.e., there was already manipulation, though in many cases it occurred through inaction (the failure to redraw lines even in the face of substantial population changes) rather than action.

Again: All of this is a completely different issue than political gerrymandering. The latter can and will take place with or without a one-person, one-vote rule. In fact, the only thing a one-person, one vote rule does is make gerrymandering that much more difficult, in that it forces the parties (who typically draw the maps) to gerrymander into bizarrely-shaped districts like the ones cited above. So, in one sense, gerrymandering is easier to detect under strict "one-person, one-vote" rules. FWIW, Rick Hasen has a nice, balanced commentary on this over at FindLaw, including some suggestions for things we might want to know from Alito (2005 Remix).

Simon said...

PD Shaw:
"If you don't want a population center (like Chicago) to exert too much influence, can't you achieve that by requiring super-majority votes on some or all issues?"

You're right, that would be another way to accomplish the same thing. My purpose isn't to prescribe a solution - indeed, it is the very concept of federal prescription that I object to, rather than the specific prescription determined by Mr. Justice Brennan. You're right; there is more than one way to modify the impact of the presense of a large city with interests distinct to the non-urban part of the state, and as your comment goes on to point out, it isn't entirely clear whether such considerations should even be taken into account when creating districts. My point is precisely that to impose a one-size-fits-all restriction is wrongheaded, foolish, and is very likely unconstitutional. As long as states are not districting specifically for the purpose of discriminating against discreet and insular minorities, I would argue that they have full scope to determine what the appropriate criteria for drawing districts should be, and having done so, to define and maintain those district boundaries. Only when they specifically intend to discriminate and disenfranchise does it raise an issue, in my view.

Simon said...

"Am I better or worse served with a representative who has a "safe" seat? I don't know, actually. Because my state senator doesn't have to work hard to be re-elected, she can put effort into helping other members of her party get elected."

I tend to think that seats that are uncompetetive are a problem, because they tend to divorce the representative from their primary function, which is always representation first.

On the other hand, I am also a supporter of consecutive term limits in Congress, and I'm increasingly leaning towards the view (most recently prodded, I think, by Joe Klein's recent TIME column on the permanent campaign) that Presidents should be restricted to a single term. Recently at Volokh, I proposed the following draft 28th Amendment (now updated to include new view on the White House):

§1
The 17th Article of Amendment is hereby repealed.

§2
Cl. 1 No person shall be a member of the United States Congress for more than twelve consecutive years in any fourteen years.

Cl. 2 Any person who would, if elected, during the course of their term violate §2 Cl.1 of this amendment, shall be ineligble for election.

§3
Cl. 1 The United States Senate shall consist of two Senators from each State.

Cl. 2 Each Senator shall be elected by a joint ballot of the legislature of the State which they will represent.

Cl. 3. For vacancies arising as a foreseeable consequence of the expiry of a term, the legislature will convene no later than six months before the opening of the Congress in which the seat shall be vacant, to fill the vacancy.

Cl. 3. No Senate seat will go vacant for longer than six months. If the state legislature cannot be called into session, or if they cannot agree upon a candidate within six months of an unforeseeable vacancy arising, the Governor of the State shall appoint a person, whose commission shall expire on confirmation of their successor by the State Legislature.

Cl. 5 No person will be elected to represent a state in which they have not resided for at least five years, nor who has not attained an age of 35 years.

§4
No person shall be eligible to seek election to the office of President of the United States who is presently serving in that capacity, or as Vice-President.

Jacques Cuze said...

Quxxo: Alito had first-hand experience seeing how it was done in New Jersey: his dad with a calculator.

Sure, and if he based his legal decision then on the technology of his father's job 30 years before rather than the technology of his time, I would say he made a mistake.

One of my fav themes of course is that courts really shouldn't pretend they know squat about science or technology, and that the various appeals court and the Supreme Courts that argue based on a panel of judges should encourage the seating, as judges, of prominent scientists and engineers.

As we all know, the deepest reasoning of a lawyer rarely goes beyond that a 3L law student review editor would be expected to have.

(What does 3L mean?)

Simon said...

"One of my fav themes of course is that courts really shouldn't pretend they know squat about science or technology, and that the various appeals court and the Supreme Courts that argue based on a panel of judges should encourage the seating, as judges, of prominent scientists and engineers."

I've just been reviewing a case which will horrify you, then. NTP, Inc. v. Research in Motion, Ltd., 418 F.3d. 1282 (Fed. Cir. 2005) (link to PDF) goes into page after page of technical detail to complement its statutory analysis.

peter hoh said...

quxxo, I don't think the point was that Alito objected to the suffering his father had to endure because the SC ruling arrived before computers and software were created to make the process easier.

Simon: I'm inclined to agree with your analysis of safe-seats. The system is set up to reward those who stay in office a long time. When such an office holders "bring home the bacon," that helps them line up with certain interests in their district -- who in turn help fund the campaigns. This probably furthers the distance between the office holders and the people they are supposed to represent.

Interesting amendment proposal. I'll buy you a very expensive lunch if it's made law before I die.

I especially like the part about sitting vice-presidents being ineligible to run for the presidency. The Democrats would be well-advised to make this part of their party's rules.

Simon said...

"When such an office holders "bring home the bacon," that helps them line up with certain interests in their district -- who in turn help fund the campaigns. This probably furthers the distance between the office holders and the people they are supposed to represent."

That is exactly the problem. Success as a representative tends to be measured in terms of what you can say you brought back to the district, rather than what you managed to prevent being taken away in the first place. There is a disconnect between spending and paying, and one of the primary goals of changing the tax code, IMHO, is to make the link between government spending and taxation not only clear, but viscerally so. It seems to me that this is the only way to break the use of pork as a metric of effectiveness as a Congressman.


"Interesting amendment proposal. I'll buy you a very expensive lunch if it's made law before I die. "

Your money couldn't be more safe if you locked it in a safe. In fort knox. and the executed a maniacal "Goldfinger"-style plot to irradiate the entire area for a thousand years. ;) Still, I'm of the view that you start with idealism and negotiate down, rather than starting with expediency and hoping you can negotiate up. :p

John Thacker said...

The whole point of Baker v. Carr was that the political process was being used -- very deliberately and effectively -- to disenfranchise certain individuals for the benefit of others.

But Baker v. Carr is not the only case. Reynolds v. Sims was more important. In any case, while the obviously rotten boroughs were a problem, what about districts for state senates like California and Arizona had, with an equal number of people per county? I'm trying to wrap my head around exactly why those are totally awful, and yet permitted for the US Senate.

John Thacker said...

with an equal number of people per county?

I meant an equal number of state senators per county here.

peter hoh said...

well, it would be interesting to see the "one man, one vote" principle applied to the Senate and the Electoral College, but it ain't gonna happen. It's the way it is, a compromise forged by the founders that allowed for the creation of the Union.

Al Maviva said...

I've just been reviewing a case which will horrify you, then. NTP, Inc. v. Research in Motion, Ltd., 418 F.3d. 1282 (Fed. Cir. 2005) (link to PDF) goes into page after page of technical detail to complement its statutory analysis.

The CAFC, with its role in reviewing patent claims, is quite different and generally only highly technically qualified judges are appointed to it. You are being excessively cute here, Simon, and I think you know it...

Simon said...

"what about districts for state senates like California and Arizona had, with an equal number of people per county?"

Ah, but is it really equal numbers alone that the Brennanites want? I would submit that if it had been demonstrated that every district at issue in Reynolds had been of equal numbers of people, that would not have been enoguh - it was a racial imbalance. Which rather begs the obvious question: must each district be a microcosm of the state, and contain analagous proportions of blacks, whites, latinos, women, men, gays, straights and members of every economic class? Why couldn't any "discrete and insular minority" bring an equal protection issue to the Court, even if there was simply no way to demonstrate wilfull attempt to discriminate, and say "my vote as a bisexual transvestite latino billionaire counts less in Jefferson County than it does in Clay County! Equal protection violation!"

"It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." 285 U.S. 262, 311. We should not impose uniformity where our diversity is precisely our strength. Let each state figure this out itself, unless or until it becomes pernicious.

Mark said...

It turns out that apparently, what Bush said about Alito's father is well, a lie.

http://talkleft.com/new_archives/013324.html

Apparently, his father was born in the USA, not in Italy as Bush claimed. Granted, it is a minor detail, but it raises new doubts about these sweet stories about the experience his Dad had on Alito. As for me, I trust not one bit of what he says.

Simon said...

Mark-
Even DailyKos doubts the veracity of this non-story. The very link you post quotes them as saying:

"the 1930 census records show Alito's grandfather, Anthony, came to the US in 1913. His wife, Mary, and his son Samuel (our Samuel's dad), came in 1914, which is also the year Sam père was born. The census record states that all three were born in Italy, and as of 1930, Anthony had been naturalized, but not Mary or Samuel père . . . Personally, I think that Samuel père may have fudged his birthplace when he joined the army. That is, he might simply have failed to mention he was born in Italy."

Furthermore, do you really want to trust a news source which says - with a straight face - "as if [Bush] cares about immigrant rights, when we all know he is about to trample those rights." Well, first of all, that's just flat-out ignorant; Bush is, in point of fact, one of the most enthusiastically pro-immigration Republicans, to the point that, prior to Miers, it was one of the most seriously divisive fracture points in the GOP (see National Review, Dec. '04, "GOP Crackup ahead?"). Furthermore, there is zero indication, none at all, that any Republican who is taken seriously has any desire to trample the privilege - not right, privilege - of immigrating to this country. What most people, excepting Bush, are trying to stamp out is illegal immigration, which is a very different issue, and well they should.

I say the foregoing not as some armchair quarterback, but as someone who DID immigrate to this country, and feels deeply grateful for the privilege of having been able to do so. You will find no stronger constituency for clamping down on illegal immigrants than people who came here legally.

John Thacker said...

Speaking of "one person one vote" and all that, there's also the interesting situation that apportionment and congressional seats are drawn not according to the population of eligible voters, but according to the total population. In certain districts (especially in California, due to its large population), the percentage of residents who are non-citizens is over one-fourth or one-third of the population, and hence representatives are elected by electorates whose size is quite clearly smaller than that of other districts. Even illegal aliens are counted as well in population.

There are reasons for it, certainly, but it does seem to violate "one person one vote."

Robroy said...

One person, one vote--the concept that one person's vote must be worth as much as another person's vote. Looking at the elections results of the 2004 elections, one finds that 289,328 votes were cast in the 50th congressional district, but only 108,783 votes were cast in the 47th congressional district (Orange County). A look at current register voter tallys finds 356,510 registered voters in the 50th congressional district, but only 193,389 registered voters in the 47th congressional district. It appears that the vote of a voter in the 47th congressional district is worth twice that of a voter in the 50th congressional district. Drawing district lines to put illegal aliens within a particular district makes super voters of voters in the district, and dilutes the votes of voters in other districts.