April 4, 2016

"It's easy to predict that the Court will reject this claim and let the states keep relying on the longstanding population-based method of redistricting."

I wrote, last December, after reading the oral argument in Evenwel v. Abbott:
Even though there's some principled sense to the eligible-voter-based method, there's also principled support for the existing method. It would need to be much more obvious that there's something wrong with the existing method before the Court would declare that what's been done for so long is not even permissible, especially when it would require states to undertake so much difficult and expensive new work and to draw many new and sure to be contentious lines.

If the Court were anywhere near to making a decision like this, Justice Scalia would have grilled the state's lawyer. In fact, he asked an astounding total of zero questions. This oral argument was interesting in the way it shone a light on the inaccuracy of the concept of "one person, one vote" that we've taken as a stunningly correct precept for half a century. So be a tad less fuzzy-headedly idealistic and face reality. That's always a pretty decent idea.
And now, Scalia is gone and it's zero questions forever. But Scalia's vote was not needed, and the opinion the Court issued just now was unanimous. I haven't had the chance to read it yet, but as you can see from reading my old post, I was most interested in the possibility of using the Guarantee Clause: "The United States shall guarantee to every State in this Union a Republican Form of Government." Justice Breyer brought it up at oral argument, suggesting that it could influence the meaning of the Equal Protection Clause with respect to "the kind of democracy where people, whether they choose to vote or whether they don't choose to vote, are going to receive a proportionate representation in Congress."

The opinion for the Court doesn't mention the Guarantee Clause or use the idea of "a republican form of government," but Justice Thomas, writing solo and concurring, has a lot to say about it. Excerpt:

Rejecting a hereditary class system, [the Framers] thought political power resided with the people. At the same time, they sought to check majority rule to promote the common good and mitigate threats to fundamental rights. ...

Reflecting this history, the Constitution continued to afford States significant leeway in structuring their “Republican” governments. At the framing, “republican” referred to “[p]lacing the government in the people,” and a “republick” was a “state in which the power is lodged in more than one.” S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Federalist No. 39, at 251 (Madison) (“[W]e may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour”). By requiring the States to have republican governments, the Constitution prohibited them from having monarchies and aristocracies. See id., No. 43, at 291. Some would argue that the Constitution also prohibited States from adopting direct democracies. Compare Wood 222–226 (“For most constitution-makers in 1776, republicanism was not equated with democracy”) with A. Amar, America’s Constitution: A Biography 276–281 (2005) (arguing that the provision prohibited monarchies and aristocracies but not direct democracy); see also The Federalist No. 10, at 62 (Madison) (distinguishing a “democracy” and a “republic”); id., No. 14, at 83–84 (same).

Beyond that, however, the Constitution left matters open for the people of the States to decide. The Constitution says nothing about what type of republican government the States must follow. When the Framers wanted to deny powers to state governments, they did so explicitly. See, e.g., Art. I, §10, cl. 1 (“No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts”).

None of the Reconstruction Amendments changed the original understanding of republican government....

34 comments:

Michael K said...

Elbridge Gerry could not be reached for comment.

Amanda said...

An end to gerrymandering, hallelujah!

Sammy Finkelman said...

This was the Supreme Court case that I thought, that, if anyone had murdered Justice Scalia, it would have been about this one.

But it is simply a medical oversight, at most. Garry Shandling's doctor wasn't so ready to sign off about his sudden death. (Although Garry Shandling had hyperparathyroidism, which causes elevated calcium levels, which increases the risk of a heart attack because it causes atherosclerotic plaque, although it probably only increases risk if some other factor(s) are involved.)

http://www.health.harvard.edu/blog/high-calcium-intake-from-supplements-linked-to-heart-disease-in-men-201302065861

http://health.usnews.com/health-news/articles/2014/05/30/calcium-supplements-dont-raise-womens-heart-risks-study-says

About the decision: Since representatives are apportioned among the states by total population, regardless of citizenship or age (and age is a bigger unequalizing factor relative to voters in many cases) it is reasonable that they should be apportioned within a state the same way, if any rule is required at all.

The problem or issue comes from applying the equal protection clause to apportionment, which is the only arggument for equal populatopn districts in the state legislature.

What should be equal or nearly equal? It's been assumed, total population.

So now some people said citizens. But more properly, if you were going to use something besides the Census population figures, and you want voters to be equal, you might want to use registered voters, which is at least a datum that states have.

Even better, actual votes cast in recent previous elections. Which, however, is complicated by how competitive they were and who was running.

Even better, some form of proportional representation or an instant runoff system.

I think you either have to say no rule at all is required (but then what about pocket boroughs?) OR you can use the same figures used for apportioning members of the House of Repesentatives among the states, OR the rule has to be something more to the point than citizens.

Ann Althouse said...

"This was the Supreme Court case that I thought, that, if anyone had murdered Justice Scalia, it would have been about this one."

What?! This was the case I was sure Scalia's vote wouldn't matter. I thought it would be unanimous and it was. Unanimous 8 instead of unanimous 9.

Birkel said...

Amanda goes off half cocked.

Sammy Finkelman said...

Clarence Thomas:

...I write separately because this Court has never provided a sound basis for the one-person, one-vote principle. For 50 years, the Court has struggled to define what right thatprinciple protects. Many of our precedents suggest that it protects the right of eligible voters to cast votes that receive equal weight. Despite that frequent explanation, our precedents often conclude that the Equal Protection Clause is satisfied when all individuals within a district—voters or not—have an equal share of representation. The majority today concedes that our cases have not produced a clear answer on this point. See ante, at 16.

In my view, the majority has failed to provide a sound basis for the one-person, one-vote principle because no such basis exists.

The Constitution does not prescribe any one basis for apportionment within States. It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government. The majority should recognize the futility of choosing only one of these options. The Constitution leaves the choice to the people alone—not to this Court....

...This case illustrates the confusion that our cases have wrought. The parties and the Government offer three positions on what this Court’s one-person, one-vote casesrequire States to equalize. Under appellants’ view, the Fourteenth Amendment protects the right to an equal vote. Brief for Appellants 26. Appellees, in contrast, argue that the Fourteenth Amendment protects against invidious discrimination; in their view, no such discrimination occurs when States have a rational basis for the population base that they select, even if that base leaves eligible voters malapportioned. Brief for Appellees 16–17. And, the Solicitor General suggests that reapportionment by total population is the only permissible standard because Reynolds recognized a right of “equal representationfor equal numbers of people.” Brief for United States as Amicus Curiae 17.

Although the majority does not choose among these theories, it necessarily denies that the Equal Protection Clause protects the right to cast an equally weighted ballot...


Republican form of government means nothing heriditary but probably also means that a state has to abide by its own constitution. Justice Thomas seems in one place to go along with the idea of not apportioning by land but in another does not. I think in the first case he's talking about the court's precedents and in the second the actual original understanding of the constitution.

He says the Constitution did not resolve the question of whether the ultimate basis of representation is the right of citizens to cast an equal ballot, or the right of all inhabitants to have equal representation. Neither do their precedents argue another way.

Sammy Finkelman said...

Justice Alito:

The Court does not purport to decide whether a Statemay base a districting plan on something other than total population, but the Court, picking up a key component of the Solicitor General’s argument, suggests that the use of total population is supported by the Constitution’s formulafor allocating seats in the House of Representatives among the States. Because House seats are allocated based on total population, the Solicitor General argues, the one-person, one-vote principle requires districts that are equalin total population. I write separately primarily because I cannot endorse this meretricious argument.

First, the allocation of congressional representation sheds little light on the question presented by the Solicitor General’s argument because that allocation plainly violates one person, one vote....


He goes on to wrote alot about the 14th amendment.

Sammy Finkelman said...

"This was the Supreme Court case that I thought, that, if anyone had murdered Justice Scalia, it would have been about this one."

Ann Althouse 4/4/16, 10:04 AM

This was the case I was sure Scalia's vote wouldn't matter. I thought it would be unanimous and it was. Unanimous 8 instead of unanimous 9.

Yes, you were right and the idea that Scalia's vote would matter is wrong, but this was one of the supposedly close cases the New York Times talked about after his death:

http://www.nytimes.com/2016/02/15/us/politics/antonin-scalias-absence-likely-to-alter-courts-major-decisions-this-term.html

The clearest impact is likely to be in Friedrichs v. California Teachers Association, No. 14-915, on the power of public unions. When the case was argued in January, it seemed clear that the court was headed toward a closely divided decision in which the conservative majority would rule that workers who chose not to join public unions could not be made to pay for the union’s collective bargaining work.

The likely outcome now is a 4-to-4 split that would leave in place a decision from the federal appeals court in California upholding the mandatory payments. That would be a major victory for the liberal justices and public unions.

A similar dynamic may be in play in Evenwel v. Abbott, No. 14-940, an important voting rights case. It concerns the meaning of “one person, one vote,” asking who must be counted in creating voting districts: all residents or just eligible voters?

...A ruling requiring or allowing the counting of only eligible voters now seems less likely, and a 4-to-4 split would leave in place an appeals court decision upholding Texas’ practice of counting everybody.

“They can return to the issue later,” David A. Strauss, a law professor at the University of Chicago, said of the justices. “It’s been unsettled for 60 years, so it can wait.”


Sammy Finkelman said...

Since only Thomas and Alito filed opinions concurring in the judgement alone, and 6 justices signed the majority opinion, there would have been no substantial difference. Scalia's ideas might already be in the Thomas opinion, except he might not have joined in some of the part that related to legislative history. Maybe he would have worked it out with Thomas, or maybe he might have written something brief dissenting from a pice of what Thomas wrote.

Hagar said...

"An end to gerrymandering, hallelujah!"

If that happens, Amanda, the first thing to go will be the present practice of segregating Black voters into separate districts.

TWW said...

How ironic they want to segregate by partitioning a space dedicated to black students.

jr565 said...

Hagar wrote:
If that happens, Amanda, the first thing to go will be the present practice of segregating Black voters into separate districts.

LOL. OOOPS?

rhhardin said...

You can't do it based on eligible voters because you're eligible if you've registered in your district, and your district depends on that count. Mathematically it's not necessarily well defined.

As opposed to districting by population, which can be counted prior to districting.

n.n said...

Progress of disenfranchisement through means other than gerrymandered districts.

Progress of eminent domain through means other than constitution sanctioned takings.

etc.

They must really think people are stupid.

Gahrie said...

"An end to gerrymandering, hallelujah!"

If that happens, Amanda, the first thing to go will be the present practice of segregating Black voters into separate districts.


An interesting dataum:

All of the Democratic minorities elected to Congress are from Gerrymandered Minority/majority districts.

All of the Republican minorities elected to Congress are from White majority districts.

Gahrie said...

I personally would support a move away from the Baker and Reynolds cases, and back to the days where urban populations were not as dominant in electoral politics.

Imagine if Los Angeles and San Francisco did not dominate the state of California. Most of the state is actually red, but the state counts as solid blue because of Los Angeles and San Francisco.

MaxedOutMama said...

Amanda - this opinion lets the status quo stand. It is a unanamious rejection of the suit. The plaintiffs' claims had nothing to do with gerrymandering either, or at least not here in the US, where gerrymandering is considered to be the practice of drawing voting districts so as to favor a particular party.

I don't know what universe you live in, but it doesn't appear to be this one?

If the plaintiffs had succeeded in this case in this universe, what would have changed is that instead of considering total population when drawing voting districts, states would have had to count total eligible voters instead of total populations when drawing districts.

Beldar said...

@ Amanda, who wrote (4/4/16, 9:52 AM), "An end to gerrymandering, hallelujah!"

That's not at all what this decision means. To the contrary, it means that the manner in which states (all states, not just Texas) are currently doing their gerrymandering is indeed constitutional. That means it's going to continue.

Gerrymandering by state legislatures is the worst possible solution to the reapportionment problem -- except for every other solution that has ever been tried, all of which have indeed been worse. There is no way the keep party politics out of the process. That being so, the proper solution is to put the political power at the lowest practicable level -- state legislatures -- where democracy is at its very most responsive, so that whenever and if ever the populace wants to see a big change, they can do so through cumulative efforts at the lowest level of governmental election capable of making state-by-state changes (as required by the Constitution).

Eric said...

If that happens, Amanda, the first thing to go will be the present practice of segregating Black voters into separate districts.

Which, if true, would be a good thing for blacks. As it stands this practice, while virtually guaranteeing a handful of black representatives, reduces black voting power by making about 40% of the black vote redundant.

Jack Wayne said...

In other words Althouse is fine with a Representative representing a district that has no citizens. And here I thought that a Constitution is not a suicide pact. Silly me! But entirely in keeping with Althouse's leftist leanings.

Beldar said...

The only surprise about this case was that the SCOTUS agreed to hear it to begin with. But this wasn't an ordinary discretionary grant-of-certiarori case. Instead, it was a challenge to "the constitutionality of the apportionment of ... [a] statewide legislative body" within the meaning of 28 U.S.C. § 2284(a), which requires the convening of a special three-judge court. Appeals from judgments entered by those special courts don't go through the normal appeals process. Rather, under another special statute just for these cases, 28 U.S.C. § 1253, appeals from these three-judge panels go directly to the SCOTUS, which has mandatory rather than discretionary jurisdiction.

In other words, due to procedural peculiarities of this sort of reapportionment case, the SCOTUS was obliged to hear and resolve this appeal on its merits -- even if not a single Justice would've voted to hear the case under the normal standards for granting a writ of certiorari.

The case is an interesting fluke. At most it points, via the concurrences, to a potentially open door, through which would lie much uncertainty if it really is open, and through which no state legislature is likely to ever try to walk.

Michelle Dulak Thomson said...

Gahrie,

Imagine if Los Angeles and San Francisco did not dominate the state of California. Most of the state is actually red, but the state counts as solid blue because of Los Angeles and San Francisco.

Unfortunately, LA and SF ("greater" SF, meaning the whole Bay Area) is where the votes mostly are. The Red parts of the state are geographically much larger, but they don't have the population. Which is why there are repeated calls to partition CA into reasonably-sized and reasonably-contained states. Except that you can't do that w/o consent of the Senate, which won't believe your pleas that it is so party-neutral. I'm afraid the only actual beneficiaries would be manufacturers of US flags, and they don't get a vote.

Amanda said...

"Amanda - this opinion lets the status quo stand. It is a unanamious rejection of the suit. The plaintiffs' claims had nothing to do with gerrymandering either, or at least not here in the US, where gerrymandering is considered to be the practice of drawing voting districts so as to favor a particular party."

The Supreme Court just shut down the demographic equivalent of gerrymandering.

"It's not typical for the Supreme Court circa 2016 to issue unanimous opinions on politically charged cases — especially when those cases are about voting rights.

But on Monday, in the case Evenwel v. Abbott, the court ruled 8-0 against a proposal to change who got counted in drawing up congressional districts — which would have given more political power to largely white areas while reducing the power of heavily Hispanic and Asian-American ones."

Amanda said...

Maxed out Mama,

ger·ry·man·der
ˈjerēˌmandər/
verb
gerund or present participle: gerrymandering
manipulate the boundaries of (an electoral constituency) so as to favor one party or class.
achieve (a result) by manipulating the boundaries of an electoral constituency.
"a total freedom to gerrymander the results they want"

Amanda said...

"Voting rights groups were seriously concerned about what would happen if the Supreme Court told states to ignore people who weren't eligible to vote when drawing up districts.When the court heard oral arguments in December, the Southern Poverty Law Center called the case "a frontal assault on the core of the 14th Amendment, which was enacted after the Civil War to give equal representation and protection to all people."

Luckily for those groups, the Court ultimately rejected the Evenwel plan soundly: "History, precedent, and practice suffice to reveal the infirmity of appellants' claims," Ginsburg wrote. And it did so unanimously."

Gabriel said...

@Beldar:Gerrymandering by state legislatures is the worst possible solution to the reapportionment problem -- except for every other solution that has ever been tried, all of which have indeed been worse.

The State of Washington begs to differ. It may be simply that the voters in Washington have self-segregated enough that gerrymandering is unnecessary, but the fact is that Washington's districts are compact, contiguous, and make geographical sense, and it's done by independent commission.

Beldar said...

@ Gabriel: We surely can agree that Washington State, with its particular population, geography, coastline, and relatively homogenous (white) population, poses very different redistricting challenges than, say, Texas. One can no more extrapolate to the entire United States from Washington State than one can from, say, Denmark.

Beldar said...

If that commission is the way Washington State's citizenry have decided to mediate the tooth-and-nail politics inherent in redistricting, good for them -- that's what I'm saying. But it won't, can't, couldn't, wouldn't ever work in Texas, nor in most other larger and more diverse American states.

Eric said...

Voting rights groups were seriously concerned about what would happen if the Supreme Court told states to ignore people who weren't eligible to vote when drawing up districts.

Well, sure. "Voting rights groups" are just subsidiaries of the Democratic Party and don't really care if some votes count more than others.

Beldar said...

Lyle Denniston at SCOTUSBlog gets this exactly right:

"Texas actually had wanted the Court to allow it to use a total population metric, but to go further and give the states explicit constitutional permission to map out districts with equal populations of voters. The Obama administration also had wanted the Court to rule that the Constitution actually required total population as the starting point for redistricting. Neither persuaded the Court to go take those further steps."

The Left is treating the SCOTUS' refusal to issue an advisory opinion against them as if that's some great victory. Respected (but Leftie) election law specialist Prof. Rick Hasen falls victim to this with his headline, "Breaking/Analysis: Big Victory for Voting Rights as #SCOTUS Rejects Plaintiffs’ Claim in Evenwel One Person, One Vote Case. The truth is in his concluding paragraph, which can't possibly be squared with that headline:

"It might be said that liberals dodged a bullet. But as I’ve said since the beginning, this bullet was never close to hitting its victim."

Harold said...

Gahrie said...
"An end to gerrymandering, hallelujah!"

If that happens, Amanda, the first thing to go will be the present practice of segregating Black voters into separate districts.

An interesting dataum:

All of the Democratic minorities elected to Congress are from Gerrymandered Minority/majority districts.

All of the Republican minorities elected to Congress are from White majority districts.
********************************
I've pointed this particular fact out many a time. and is pretty much proof that it's the Democrats in the country who are racist. And who continually demonstrate they believe and practice the exact opposite of E Pluribus Unum.

Gabriel said...

@Beldar:But it won't, can't, couldn't, wouldn't ever work in Texas, nor in most other larger and more diverse American states.

Well, Washington is #13 in population, so larger than most and more diverse than you think, but that diversity is also reflected in its geography, so I don't doubt it was easier there than some places.

No one's saying that everybody can or should do it that way. Just saying, though you say it won't work in Texas or New York, and you might be right, but probably it could in like 30 other states. And it isn't tried because there's just not enough people who care enough about it to want to change things. There's no reason so many states have to be gerrymandered. There are alternatives, and they're not all worse, contrary to what you said.

Birkel said...

Many southern states are forced by the feds to draw majority-minority districts. There are no options unless election law is changed and that won't be happening.

mikee said...

So undocumented immigrants who are counted in the US Census in 2020, but who cannot legally vote, will dilute the votes of their fellow Hispanics via this mandated drawing of districts for voting based on total populations.

This interesting result brought to you by the same justice system that insists the potential inability of a single potential voter, registered to vote or not, to obtain a free state ID over several years before an election means that the potential votes of incompetent idiots will not be available in an election requiring voter ID, and that thus there should be no voter ID.