April 1, 2013

The Supreme Court declines to resolve a difficult 1-person-1-vote question.

The Court denied cert. in Lepak v. City of Irving, which presented "the long-standing issue of which population basis should be used in deciding whether a redistricting plan violates the one-person, one-vote mandate."
The dispute is between using an area’s total population in equalizing districts, or using only the total of eligible voters. In a dispute over city elections in Irving, lower courts used total population, which meant that one district which had a larger number of non-citizen Hispanics would nevertheless have them included in its count.

52 comments:

traditionalguy said...

The old three fifths of a person rule could be used again as a compromise.

Nonapod said...

The numbers of Congressional Representatives a state receives is based on pure population rather than the population of eligible voters, right?

The Drill SGT said...

I'd go with the apportionment by count of citizens, rather than apportion by population (including non-citizens).

The reverse, at the Congressional Level, advantages Democrats

Lem said...

In a dispute over city elections in Irving, lower courts used total population, which meant that one district which had a larger number of non-citizen Hispanics would nevertheless have them included in its count.

I take it that's not an April fools joke.

SteveR said...

It seems a reasonable compromise is to let everyone vote regardless of whether they were citizens or not. Oh wait...

Ann Althouse said...

Quite aside from non citizens, what about children? Does a community with a lot of children get proportional representation with communities that have few children?

bpm4532 said...

interesting gap in the law, it seems.

the number of legal residents should be the measure.

Tom said...
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Lem said...

interesting gap in the law, it seems.

Its possible that the founders never envisioned an open border... I could be wrong.

Alex said...

Dogs should get the right to vote.

tim maguire said...

Using total population has a definite logic to it, but that approach makes some people's votes worth more than others. Absent evidence that the votes cast adequately represent the interests and desires of the larger population, voters shouldn't benefit from living near more people who can't vote.

cubanbob said...

What about proportional representation for taxpayers?

SeanF said...

I am curious to know if the people who complained about the redistricting were people in the district with "a larger number of non-citizen Hispanics" or if they were people in the other districts...

I mean, I know who should complain, I'm just wondering who did. :)

bpm4532 said...

Actually, the founders HAD an open border, I believe.

Dust Bunny Queen said...

Serious question. Does the Supreme Court give a rational or reason as to why they are declining to take a case? or do they just say no and send it away.

Nathan Alexander said...

I'm a conservative.

I would be called "extreme" conservative by most liberals.

I want our border secured, I want our immigration laws fully enforced, and I think the semantic shift away from emphasis on the ILLEGAL of illegal aliens is wrong.

However, I don't care whether this advantages Democrats or Republicans: I think it should be count of all citizens. I, too, thought of a district with a higher number of children than others...I also considered that there are some districts that are probably very high in legal Permanent Residents. They are here with our permission but lack the right to vote; should they not be represented? Maybe we shouldn't allow lifetime legal permanent residents, but that is a different argument.

purplepenquin said...

Quite aside from non citizens, what about children?

They are counted as population, no?


Prisoners are also making things weird/difficult when it comes to re-districting, 'cause the Census Bureau counts 'em as residents of the area.

Ann Althouse said...

"They are counted as population, no?"

So what?

The question is equal protection and voting rights. When are voting rights diluted?

If only 50% of the population is eligible to vote in one place but 90% is eligible to vote in another, what's the right way to figure "1 person, 1 vote"?

Ann Althouse said...

It's like the problem of counting slaves when slaves couldn't vote.

Why should the other people in the same area get more weight to their votes?

Ann Althouse said...

Why should living near nonvoters add more power your vote?

It's a separate question from what's the population.

You could say the representatives from that district represent these people, but unless they perceive them as voters, the representation isn't really the same. You don't have to please them to get reelected.

Methadras said...

How about this. You take the geographic/geometric center of the state. Divide the districts into the number of pie shapes that represent the population and viola. No more fucked up squiggly lines, no more arguments about who represents who and then every 4 years you rotate it clockwise so that everyone gets a shot at new representation each year.

Sigivald said...

Ann asked, in comments: If only 50% of the population is eligible to vote in one place but 90% is eligible to vote in another, what's the right way to figure "1 person, 1 vote"?

Well, "each eligible person gets to vote exactly once" seems like the obvious way.

I think the issue here is the very term "1 person, 1 vote": that's not really the issue in this case.

What's at issue is vote weighting by varying districts based on population.

The two are related but not identical.

We might prefer "Every Vote Of Equal Importance" or something, but of course in a proportional representation scheme that's always only aspirational, since it's impossible to make the districts exactly equal.

(The difference is so marginal as to be irrelevant, in most cases, if one is not trying to manipulate outcomes.)

SeanF said...

Nathan Alexander: I also considered that there are some districts that are probably very high in legal Permanent Residents. They are here with our permission but lack the right to vote; should they not be represented?

Are you talking about giving them the right to vote? If not, how are they "represented"?

The question here is this: If you have one district with a 10,000 citizens and no non-citizens, and another district with 5,000 citizens and 5,000 non-citizens, should the first district get two representatives the the second's single rep, or should they both get the same number of reps? Which choice is supposed to provide better "representation" for the 5,000 non-citizens in that second district, if they don't actually get to help choose the representative(s) either way?

(PS: It was, in fact, residents of the other districts who filed suit of the redistricting.)

Pettifogger said...

Traditional Guy got it right off the bat. We've got historical precedent. Count illegals as 3/5s of a person.

Hagar said...

Counting 3/5 of the slave population had to do with achieving a roughly equal sectional balance of power in Congress, which was a condition for either North or South to go along with forming a single country at all.

(The framers did not invent it; it was carried over from the Articles of Confederation because it had worked for the time being.)

Rusty said...

bpm4532 said...
interesting gap in the law, it seems.

the number of legal residents should be the measure.


But then what would democrats do for votes?

Hagar said...

"One person, one vote" is a fairly modern notion that some have perceived in the penumbras emanating from the Constitution.

It is kind of like seeing the Virgin Mary on a potato chip; some see it, some don't.

Scott M said...

But then what would democrats do for votes?

Vote early and often, much like they do now.

Nathan Alexander said...

Why should living near nonvoters add more power your vote?

It's a separate question from what's the population.

You could say the representatives from that district represent these people, but unless they perceive them as voters, the representation isn't really the same. You don't have to please them to get reelected.


Less than 50% of voting-eligible people vote in most elections.

You don't have to please most of the voters of your region to get re-elected.

SNL did a skit on Bill Clinton thanking the one person he actually needed to please/convince in order to get re-elected, and there is a kernel of truth to that.

The point is, an elected politician serves the residents of a geographical area. Not all of them can vote. Most of them won't vote. Some of them who can't vote will.

And all the politician knows is he was re-elected. S/he won't know or care if it was an illegal vote from a party mechanism seeking partisan power, a single issue voter voting for a specific abortion stance, or a rube voting for a hoped-for evolution of position (like hoping the Democrats will be held responsible for security issues), or someone who looked at every aspect of both candidates and decided that the candidate was the best overall.

So why shouldn't residents who live in an area, use the infrastructure, contribute to the tax base, require govt assistance (hopefully only at times), consume education, etc, have representation for their needs, regardless of whether they vote or not?

Michelle Dulak Thomson said...

Ann,

Quite aside from non citizens, what about children? Does a community with a lot of children get proportional representation with communities that have few children?

Just what I wondered on reading of this.

dbp said...

There are two distinct things which our elected representatives represent.

1. The will of the citizens of their district.

2. A claim on the public purse which is proportional to the total residents. Citizen or not, the provision of roads, police, schools and so forth will depend on the number of people.

Michelle Dulak Thomson said...

Methradas,

How about this. You take the geographic/geometric center of the state. Divide the districts into the number of pie shapes that represent the population and viola.

Hey! I play viola, and I vote! You leave the viola section out of this :-)

wyo sis said...

How many graveyards per district?

Ignorance is Bliss said...

Dust Bunny Queen said...

Serious question. Does the Supreme Court give a rational or reason as to why they are declining to take a case? or do they just say no and send it away.

They do not give a reason. Since it only takes the will of 4 justices to take a case, if the case is not taken then at least 6 voted against hearing the case.

Usually voting to not take the case is an indication that the justice agreed with the result, even if not the reasoning, of the lower court. However, a justice could vote to not hear a case even if they disagree with the lower court result, if they believe that the particulars of this case would cause it to go the other way, setting a precedent that they do not want set.

gutless said...

The more important related issue is no representation without taxation.

gutless said...
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Bender said...

Its possible that the founders never envisioned an open border... I could be wrong

It is fair to assume that the Founders envisioned foreign troops being on American soil. They could envision that because it had happened with British troops during the Revolution.

Does it seem logical that they would intend for an invasionary force from another country to be included in any count of the population for purposes of elected representatives? That, of course, would effectively be national suicide.

Should the army of a foreign power be able to invade with 20 million troops, then demand that they be counted, and thereby be able to control elections because of their invasion, and thus take over the government in that way??

Of course not. The Constitution protects "We the People." Those persons who have effectively invaded our territory - whether for purposes of war or economics - are not part of "the People."

Bender said...

If you have one district with a 10,000 citizens and no non-citizens, and another district with 5,000 citizens and 5,000 non-citizens

Let's alter that a bit. If you have (a) one district with 10,000 people, all of whom are citizens or lawful residents, and (b) a second district with 10,000 people, none of whom are citizens or lawful residents, and (c) a third district with 10,000 people and, again, none of them are citizens or lawful residents --

Does each get an equal number of representatives? Do the two districts composed entirely of illegal occupants, trespassers, get to have two representatives to the lawful districts one?

purplepenquin said...

"So what?"

I thought you were asking if it happens, rather than should it happen. I beleive that the system has been flawed for quite a while now.

If we want real honest representation there needs to be a huge overhaul: instead of voting for someone based on geographical location, you assign an individual your proxy vote. Gotta have a minimum number of proxies to be seated in the House of Representatives, and each congressperson has as many votes as they have proxies.

Dante said...

The question is equal protection and voting rights. When are voting rights diluted?

I can see how this is a tough problem to completely solve. However, the total population vs. total population - illegals and felons doesn't seem so hard to. In fact, I would add long term food stamp and welfare recipients.

Belial said...
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Belial said...

Some of the non-citizen residents in a district may be only months away from citizenship. All of the citizen minors in a district are a finite time away from eligibility to vote. An actuarily-determinable portion of the voters at a given election will die in the month following the election and have no ongoing interest in the outcome of the election. It's way too complicated to adjust for all those variables, so total breathing population of a district seems to me a pretty reasonable proxy for just representation, even if it works some unfairness under some hypothetical fact pattern

Calypso Facto said...

none of them are citizens or lawful residents --

You'd need at least one eligible voter to elect a representative. The power would not lie with the hordes of non-citizens, but with the one citizen among them. Which then goes to Ann's point about concentrating influence. That one person's vote would have the power of at least the majority vote of the all-citizen district.

It's way too complicated to adjust for all those variables

Re-districting decisions are based on census data. Whether eligible voters or total population, the numbers would come from the same data source and estimates and only change when a new census was completed.

Michelle Dulak Thomson said...

Ann,

Why should living near nonvoters add more power [to] your vote?

Presumably the idea is that legislators are responsible for the welfare of all they represent. Which can't be only eligible voters, because that would imply that they had no responsibility for the welfare of citizens under the age of 18, and I take it no one believes that to be the case. (Though some take the number of eligible voters as a reasonable proxy for apportionment purposes.)

So do we add in legal resident aliens? Do we add in guesstimates of illegal aliens? I say no to the latter; people not here legally ought not to be represented legally, even in aggregate. I'm not so sure about legal (non-citizen) residents.

Gene said...

Ann: You could say the representatives from that district represent these people, but unless they perceive them as voters, the representation isn't really the same. You don't have to please them to get reelected.

I don't see why our elected representatives should have to please non-citizens. The need to please illegals implies the need to give welfare to illegals.

There are simply not enough working Americans paying enough takes to provide welfare for all the people who would like to come here and go on public assistance. It's one of the reasons California is so broke. I've seen stats saying 71% of illegal immigrant families with kids are on welfare.

Mark said...

Two words: Starship Troopers.

Paul said...

When the constitution was written, only CITIZENS could vote. Thus only LEGAL CITIZENS should vote.

No illegals, dead, dogs, cats, hamsters, etc... but only bonafide Citizens.

I.E. you need proof you are you when you vote.

Leon said...


"Why should the other people in the same area get more weight to their votes"

the advantage of being a citizen. i've lived overseas and understood that this is not my country and i don't get a say in how it is run.

Mr. Majestyk said...

Let's think about what it means to be a republic. Because direct democracy is impractical, we choose representatives to do our law making for us. But who is "we"? Eligible voters. So our representatives are representing eligible voters. That is who should be counted for purposes of "1 person, 1 vote."

gadfly said...

'Law Of Large Numbers'
In statistical terms, a rule that assumes that as the number of samples increases, the average of these samples is likely to reach the mean of the whole population. When relating this concept to [population], it suggests that as a [community] grows, its chances of sustaining a large percentage in growth diminish. This is because as a [community] continues to expand, it must grow more and more just to maintain a constant percentage of growth.


In other words, over time it really doesn't matter. Gerrymandering begins the distortion but every district is twisted up in some way. To gain a minority seat in one district likely makes it more difficult to ever roust an incumbent in another district - and that is the name of the game!

stlcdr said...

Illegal aliens, resident aliens, green card holders, and other non-citizens do not vote, and should not count to determine representation. Simple. If you want a vote and be represented, you become a citizen. Simple.

It doesn't matter if you pay taxes, or not. It doesn't matter if you have made the district your home, legally (Permanent green card holder). It doesn't matter how close to citizenry you are.

purplepenquin said...

Two words: Starship Troopers

Three words: Book, not movie