Almost all state and local governments draw districts based on total population. If people who were ineligible to vote were evenly distributed, the difference between counting all people or counting only eligible voters would not matter. But demographic patterns vary widely."One person, one vote" sounds like a reference to the voters, but that phrase comes from the court cases, not the Constitution itself. You could also think in terms of equality in the number of persons each representative represents. And if we're going to think in terms of voters, why would we look at the number of persons eligible to vote as opposed to the number of persons who actually vote? We know that voter turnout varies geographically.
If the challengers succeed, the practical consequences would be enormous, Joseph R. Fishkin, a law professor at the University of Texas at Austin wrote in 2012 in The Yale Law Journal.
It would, he said, “shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.”
May 26, 2015
The Supreme Court will answer a key question about the meaning of "one person, one vote."
Legislative districts must have roughly equivalent populations. That's been Equal Protection law for a long time. But how do you count the population? Do you include all residents or just those who are eligible to vote — or are states free to use either count?
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Let's compromise and count illegals as a fraction of a person. 3/5s sounds about right.
It should be the eligible voters who are counted and their dependent children. The number of illegal or non-citizen immigrants in a district is irrelevant.
You know, back at the time of the Constitution, wasn't this question already answered by counting slaves as 3/5ths of a person in terms of apportionment? Didn't this effectively mean that one person, one vote, wasn't an inviolable principle, but had some pragmatism to it?
This goes to the heart of why there is a United States to begin with. The smaller states went along with the constitution since all state get only two senators and were willing to accept a population based house of representatives after excluding certain categories of people who wouldn't count towards apportionment. When it comes to illegal aliens, by definition they are illegal thus having no status here, they are at best ought to be considered transients like legal tourists who aren't counted for voting purposes.
And, by the way, I think you were way off base with respect to the Canadian jewelers and the symbolically-tainted wedding rings, but looks like you're working overtime to add interesting posts for your readers today.
If it's "equal protection law" then why do we still have a Senate and electoral college?
No, there's another principle at work here.
...and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.
I've bolded the weasel-word.
Why can't guys like Fishkin just be honest about what the hell he's talking about, instead of trying to hide behind lefty euphemisms like "whiter"?
It's not a question of "whiter" at all, since a larger fraction of the black population are either native-born or legal immigrants than are white people (e.g. one out of four residents of Manhattan are European immigrants, the huge Polish community in Chicago, etc). Who's getting the shaft here are Hispanics, especially Mexicans Of course, if Fishkin were to say that, the jig would be up, since no one who isn't Mexican can see much moral reason as to why the political power of the Mexican diaspora should be singled out for political protection vis-a-vis American citizens & other immigrant groups.
Maybe we should use precedent and only count 3/5 of nonvoting people, but only if they are here legally.
"It would, he said, “shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.”
Why are the states not free to use either measure of population in their discretion as long as the purpose is not a prohibited purpose?
Or the state could just give immigrants the right to vote. It would probably surprise most people to learn that it is perfectly legal to do so. The states set the voter qualifications and there is no constitutional provision requiring citizenship to vote.
So if they lose this case, the lefties could just make it official and give immigrants the vote on a state by state basis.
Unintended consequences, baby.
And they don't end there.
The city of shopkeepers and professional men versus the farmers. The farmers want illegal labor to do hard labor and the city folks want servants who live in a ghetto, and they both miss slavery, indentured and racist so much that they replaced it with chain gang prisoner slave labor.
Small Private property ownership is the essence of freedom, called the middle class? The politicians
Who are the government are usually on the side of the Masters be they farmers or city businesses that want cheap labor.
Ronald Reagin was the last politician on the side of the middle class. The Bush family hated Reagin since they are part of the Master class all the way but with with some crafty sensitivity thrown in...compassionate men.
And then there came Ronald Reagin II. Scott Walker.
"Legislative districts must have roughly equivalent populations. That's been Equal Protection law for a long time."
It would appear to me equal protection in this context would apply to the population of those qualified to be eligible voters. Otherwise some would be more equal than others.
I suppose I'm baffled why this is going to court. As long as the rule is applied consistently it ought to be legal.
Otherwise people are going to be saying you can't count children, or felons, or whatever, and suing.
"David said...
"It would, he said, “shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.”
Why are the states not free to use either measure of population in their discretion as long as the purpose is not a prohibited purpose?
Or the state could just give immigrants the right to vote. It would probably surprise most people to learn that it is perfectly legal to do so. The states set the voter qualifications and there is no constitutional provision requiring citizenship to vote.
So if they lose this case, the lefties could just make it official and give immigrants the vote on a state by state basis.
Unintended consequences, baby.
And they don't end there.
5/26/15, 5:36 PM "
If the left really wants to rile the right and the moderates of this country into seriously setting up a constitutional convention this would be the best way of forcing the issue. That would really be unintended consequences.
The 3/5ths exception had the sole, overt intent to limit the influence of slave holders. It's application today would be analogous to limiting the influence of excessive immigration, unmeasured (e.g. illegal) immigration, warped population distributions (ergo the electoral college), and abortionists.
This reminds me of the Warren Court decision that struck down State Senators being elected based on Counties rather than population. That decision overturned a long standing practice of 170 years, one that mimicked the US Senate being elected based on states and not numbers of people.
In that case, the SCOTUS didn't even pretend they had a constitutional basis for doing so, they just did it by Judicial fiat based on their own personal politics.
I assume they'll do the same in this case and either justify it with prior case law or simply invent a reason out of whole cloth.
"The states set the voter qualifications and there is no constitutional provision requiring citizenship to vote."
Actually there are all kinds of Federal rules governing who a State can deny the right to vote. If you say there's no federal law requiring citizenship to vote in a Federal election, I'm skeptical.
Look, the purpose of the 3/5 rule was compromise, pure and simple. The Southerners wanted slaves counted for purposes of representation, but not taxation; the Northerners wanted the reverse. 3/5 for both purposes was the settlement.
This is a quite different case, because the people in question are certainly here voluntarily, not under duress. I can see no conceivable reason for counting them towards apportionment. Legal citizens only, please.
One man, one woman.
Althouse, would you be happy with a court ruling that said states may choose whether to apportion representatives proportional to either eligible voters or resident citizens, but non-citizens are not a permissible basis for the count? If you think non-citizens should be a permissible basis for apportionment, why is that?
"away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas"
Seconding YH: Native-born blacks are getting shafted as well.
Counting non-citizens has disparate impact in giving disproportionate power to some voters.
With gerrymandering one man can sometimes get two women.
The legislative districts are different in men and women.
"I can see no conceivable reason for counting them towards apportionment."
y
How about "No taxation without representation." Certainly one of the founding tenets of the USA. But I don't believe there is any constitutional requirement that they be counted towards the allocation of legislative seats. The duly elected representative of the district they reside in can represent them regardless of whether or not they are a legal voter, just as the representative is supposed to represent the interests of those too young to legally vote (although some representatives don't seem to care about the interests of those who have not yet been born.)
The Constitution says
"Representatives... shall be apportioned among the several States... according to their respective Numbers, which shall be determined by... the whole Number of free Persons..."
Whether those persons are citizens eligible to vote, or other categories of citizen such as minors, disfranchised criminals, mentally ill or defective persons, or non-citizens such as resident aliens, is not considered (except that "Indians not taxed" are excluded).
Any attempt to make "eligible voters" the basis would clearly contradict that explicit language.
The Framers never imagined that there could be large numbers of non-resident foreigners in the U.S., either as illegal aliens or as visitors. What if, during a war, a large body of prisoners of war was housed in some thinly populated area? And it was a Census year? Should they be counted?
The real answer is to exclude illegal aliens from the territory of the United States.
Gosh, it's been a long time since I read any of the cases on this subject, but what I recall is that the Court said you have to look at the rights of the individual voter, not the purposes of whatever the particular apportionment scheme is. If a vote for the state legislature cast in (say -- 'cause that's where I grew up) Connecticut had a drastically different weight depending on whether the voter lived in Hartford (pop. 150,000) or Bantam (pop. 1,500)*, then that was a violation of equal protection. If I'm right in my recollection, then a system that dilutes the value of my vote because of the presence in my district of a lot of people who aren't eligible to vote ought to violate equal protection, too.
But if you carry that principle to its logical conclusion, you'd have to exclude children, because they can't vote, as well as aliens, visitors, and perhaps even people who just moved into the district but haven't yet established residency. This seems like a perfect opportunity for the courts to defer to the judgment of the state governments unless some kind of systematic, intentional discrimination can be shown.
For some reason I don't expect the federal courts to display such modesty in their treatment of this issue.
* In Connecticut in those days, the state Senate was apportioned by population, but the state House was apportioned by Town. There were (are, so far as I know) 169 towns in Connecticut. Before the one-person-one-vote ruling, each town elected one representative to the state House, except that a town with a population of more than 10,000 (as I recall) got to elect two. Bantam (I think)** was the smallest town in the State, with a population of around 1,500, and elected one representative. Hartford, with a population of about 150,000, elected two.
** I'm wrong about Bantam. It's only a borough (a part of a town), not a town. But there was a town that was about 1/100th the population of Hartford, I just can't remember which one.
Reynolds v. Sims is a really dishonest judicial opinion. In essence the Supreme Court is holding that the United States Senate violates the equal protection clause. But of course it's idiotic to say the United States Senate violates the equal protection clause. So, as usual, the federal government picks on one of the states. "You are not allowed to do what we do. We're the federal government and the Constitution does not apply to us. But we will apply it to you just because."
It's an absurdity to say that people in Rhode Island have more voting power than people in California. Or, more specifically, it's an absurdity to say that unelected judges should re-order our system of government. You are a judge, sitting in a courtroom. Your job is to protect individual defendants. Stop fucking around with the republic, you unelected nitwits. You morons!
It's entirely sensible, and just, for a state to establish elections on the basis of counties. Since this means that there will be no gerrymander. Why abandon this system, in favor of a bumper sticker platitude? Now we re-draw our districts in an epic farce of keeping as many incumbents in power as possible. Way to strike a blow for democracy, liars.
In truth, the leftists on the Warren Court wanted to increase the voting power of people in big cities, since people in big cities tend to vote for the left. It was a political opinion, with a bumper sticker catchphrase designed to hide the utter emptiness of legal reasoning. And now both parties collude in a farce to keep themselves in "safe" districts. I scoff at these lawless cases, not only because of the failure to follow our Constitution with rigor and honesty, but also because of real damage that has been done to the integrity of our democratic system.
Just count the illegals at 3/5 of a person.
Mr. Rostom, that's apportionment among the states, not districting within a state.
“No state...shall deny to any person…the equal protection of the laws.” Broadly speaking, we are not allowed to discriminate in malign fashion against any people at all.
On the other hand, a state has wide powers to discriminate against conduct. A state can discriminate against killers, rapists, prostitutes and jaywalkers, because this is discrimination against an action, not a person. Any human being can avoid this behavior. Are you free to avoid the class? Then equal protection is satisfied.
Do people in Iowa and New Hampshire have an unfair advantage in every presidential election? Yes. Of course. Does this unfairness violate the equal protection clause? No.
Why not? Because this is not discrimination against human beings. It's a rule in regard to conduct. The class is defined by where you choose to live. You want the rights that people in Iowa have, move to Iowa. Problem solved.
Okay, actually looking at Wesberry v. Sanders, 376 U.S. 1 (1964):
---
We hold that, construed in its historical context, the command of Art. I, 2, that Representatives be chosen "by the People of the several States" 9 means that as [376 U.S. 1, 8] nearly as is practicable one man's vote in a congressional election is to be worth as much as another's. This rule is followed automatically, of course, when Representatives are chosen as a group on a statewide basis, as was a widespread practice in the first 50 years of our Nation's history. 11 It would be extraordinary to suggest that in such statewide elections the votes of inhabitants of some parts of a State, for example, Georgia's thinly populated Ninth District, could be weighted at two or three times the value of the votes of people living in more populous parts of the State, for example, the Fifth District around Atlanta. Cf. Gray v. Sanders, 372 U.S. 368 . We do not believe that the Framers of the Constitution intended to permit the same vote-diluting discrimination to be accomplished through the device of districts containing widely varied numbers of inhabitants. To say that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the principle of a House of Representatives elected "by the People," a principle tenaciously fought for and established at the Constitutional Convention
---
That sure leaves a lot of room for arguing that districting should be based on voters (either actual or eligible, that's a tougher question), not pure population.
I think you were way off base with respect to the Canadian jewelers and the symbolically-tainted wedding rings, but looks like you're working overtime to add interesting posts for your readers today.
Yah she does that after every meltdown - flood the page with new posts until the embarrassing one gets knocked off the page.
cubanbob, rcocean:
Indeed!
I will never be completely satisfied in this regard until the S.C. relents and allows our bicameral states to have a house with a population-based apportionment and a senate with a geographically-based apportionment, just like the United F'n States of America has.
Saint Croix,
I was with you up until "morons". Nay, these evil dudes knew exactly what they were doing, hence the correct denunciatory phrase is... ahh.... "evil dudes".
I was kinda surprised by my own anger here.
I have felt for a long time that the gerrymander is anti-populist, and corrupt. And I also feel that the Supreme Court has not fixed that problem. Instead they have exacerbated it, made it worse. While simultaneously attempting to take a lot of democratic glory for themselves. "One person, one vote." So now we've had fifty years of these unelected people talking about whether voting districts are funny-looking or not. And of course they just keep going down this path. They can't go back, can't admit error.
Did you take the language of the equal protection clause seriously? No. Did you take the history of the equal protection clause seriously? Again, no. They've just invented an entire line of jurisprudence that has nothing to do with the equal protection clause. And this fantasy-work has not actually made anything more democratic!
Are you helping the voters? Are you helping our republic?
The gerrymander, like the Supreme Court itself, is deeply anti-democratic. So the whole thing is rather a joke. We have this farce of our unelected rulers repeating their bumper sticker phrase, while incumbents of both parties seek to maximize their own power and keep everybody in office for as long as possible.
I was with you up until "morons". Nay, these evil dudes knew exactly what they were doing, hence the correct denunciatory phrase is... ahh.... "evil dudes."
The Warren Court got a lot of criticism from the right, of course. I think John Hart Ely was largely right in his thesis that the criticism of the Warren Court was "crying wolf." And so by the time Roe v. Wade came around, people on the left weren't listening anymore.
I feel that Hugo Black was the driving force of the Warren Court, the intellectual tiger of it. I'm a big fan of his free speech jurisprudence, and his fight over applying the Bill of Rights to the states. He was right, he was right, he was right.
My criticisms of the Warren Court--and I was 1 year old when Warren retired--is really limited.
I think Miranda is a disgraceful case. I don't object to the rule that was adopted. It's a nice liberal rule. People should know about their rights!
But I do object to the idea that a confession should be excluded from a criminal trial because the police failed to inform a suspect of their rights. And it's reprehensible to me that the Supreme Court applied this new rule retroactively, and freed Miranda, who had committed a vicious rape against an innocent woman.
Ultimately Miranda was retried, without his confession, and convicted again. But the lack of regard for his victim, for this woman who was brutally assaulted? It shocks me.
Do you actually think that Miranda was innocent? The Court itself assumed that his confession was not coerced, that it was valid and real. Imagine accepting that Miranda was indeed a rapist, while you set him free(!)
What should be the key in criminal procedure is the search for truth. I think Akhil Amar is rather brilliant in this regard. He's liberal to the marrow in his bones, but his attacks on the exclusionary rule are bracing, and right on the money.
My main criticism of the Warren Court was how egotistical they all were. They were always deciding "big" cases, and getting headlines. I think they loved that part of it. There was a lot of hubris. And when Black and Warren and Harlan all retired, any of the people who might have slammed the brakes were gone. And so the Warren Court opened the door to Roe v. Wade.
And this way the Supreme Court has of building an entire line of cases? If they start off in a bad place, what this means is that the mistakes multiply, and get worse and worse. We see a bit of this in the voting rights cases. But it's really obvious in the case of abortion rights.
For instance, I do not believe any of the Warren Court liberals would have said, "there is a constitutional right to stab a baby in the middle of birth." The whole idea is absurd! It never would have happened. Not out of the blue like that. They had to build up to it.
Texas actually had a law making partial-birth abortion a crime. The maximum penalty was life in prison. The statute is cited in Roe v. Wade. It's the first footnote, Article 1195 of the criminal code. As Blackmun put it, this statute is "not attacked here."
But the Supreme Court's disregard for the danger of abortion to the mom would lead to many injuries and deaths. So doctors started a new practice of inducing birth, or dragging the baby outside the uterus. And they would kill the child in the middle of birth. And the Supreme Court had to approve this practice.
Of course Kennedy bailed. He was appalled by the idea of killing a baby in the middle of birth. Who wouldn't be?! (Answer: highly intelligent and proud people who do not want to admit error because it makes them look bad). What drove Kennedy to honesty was guilt (I suspect). Anyway, he was honest. And his emotional upheaval caused him to drop all pretense.
And so now the Supreme Court has two evil cases. They are talking about killing babies, and they are doing it out in the open. And we all can read it and see what they did.
The Warren Court never would have done this. And yet, they certainly planted the seeds.
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