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The arguments in the “one person, one vote” case

Here’s the Chron story:

“We start with the proposition that one person can’t be given two votes, while their neighbor be given one vote,” said Arlington, Va., attorney William Consovoy, arguing Evenwel’s case before the high court.

Texas officials argued that the state – like every other state and the U.S. House of Representatives – apportions legislative districts fairly by the only workable measure it has: total population as calculated by the U.S. Census Bureau. Any disparities in actual voters, they counter, must be intentionally “invidious” for the courts to intervene.

“When a state equalizes a population base, it’s not discriminating,” said Texas Solicitor General Scott Keller. “It’s doing exactly what the one-person, one-vote doctrine was set up to do.”


Liberals on the court echoed many of the same concerns as activists who view office-holders as representatives of their entire communities, not just voters.

“There is a voting interest,” said Justice Sonia Sotomayor. “But there is also a representation interest. The Legislature is protecting not just voters. It’s protecting its citizens or non-citizens.”

Along with Justice Ruth Bader Ginsburg, Sotomayor asked the most pointed questions of Consovoy, noting that under Evenwel’s system, women, African-Americans and others who were once denied the right to vote would not have counted in past legislative apportionments.

But Justice Samuel Alito, one of the court’s conservatives, noted that the current system of counting total population includes prisoners, “undocumented aliens,” and others who can’t vote. “Isn’t your argument that voters are irrelevant?” Alito said, pressing the government lawyers.

The two sides also jousted on the rights of children.

“Children are represented at the polls,” Consovoy said, “They’re represented at the polls by their parents.”

“How about children who are citizens when their parents are not?” Sotomayor shot back.

See here for the background. Here’s the Trib‘s coverage.

Texas Solicitor General Scott A. Keller and U.S. Deputy Solicitor General Ian H. Gershengorn defended the current process Tuesday, with Keller arguing that an unraveling of the current system would “upend the redistricting process.”

Justice Samuel Alito challenged Gershengorn with what he described as “an extreme case”: a rural district with a large prison full of disenfranchised incarcerated people. Justice Anthony Kennedy questioned why voter equality and population equality were mutually exclusive.

Keller countered that to side with the plaintiffs, “states would inevitably have to disregard many other traditional redistricting factors, like compactness, continuity [and] keeping communities together.”

Gershengorn pointed to New York City as an example of why the plaintiffs’ argument was unfeasible.

He noted that 9 percent of Manhattan’s population is children, who are included in the census but are not able to vote. In contrast, 30 percent of the population in neighboring borough Brooklyn is made up of children.

If the Evenwel-endorsed standard became law, Gershengorn said, Brooklyn would theoretically need to absorb Manhattan voters into its state legislative districts. In his view, that would disrupt political constituencies and compactness.

And here’s SCOTUSBlog:

In fact, the principle of “one person, one vote” has been understood as equality of districts, rather than voters, on the theory that everyone placed in each district — whether eligible to vote or not — is entitled to be represented by the winner. But there is a political movement now, increasingly active, that is pushing for the famous phrase to mean voter equality, so the process would start with making sure that those who are qualified to vote should wind up with roughly equal numbers in each district.

If there is great disparity between the numbers of eligible voters between districts, the theory goes, there is no voter equality: those in districts with fewer voters have considerably more clout, at election time, than those with many voters — even if the districts’ total populations are equal. A district over-populated with voters is said to dilute the ballot strength of each, compared to some other districts’ residents.

This equality theory was neatly captured by Justice Samuel A. Alito, Jr. — although it was not clear whether he was really tempted to embrace it, or was just exploring its meaning. Suppose, he said, there was a rural district in which only nine percent of the population could vote, because its overall population is swelled by a large prison and none of the inmates can vote, but there is another district with about the same total population, but ninety percent of its residents can vote. “Is that okay?” he asked a federal government lawyer, Deputy Solicitor General Ian H. Gershengorn.

Gershengorn responded that the courts have recognized that legislatures, in drawing new districts, are entitled to rely on census data — that is, total population figures. There is no existing way, Gershengorn would go on to say, for the census to provide data that would aid legislatures in dividing up seats according to voter figures without simultaneously winding up with major differences in total populations. That, he indicated, would skew district population differences.

What the plaintiffs are arguing for is that citizen voting age population (CVAP) be used as the standard to draw districts. The effect that would have on districts with a heavy concentration of Latino voters, who tend to be younger and more likely to be non-citizens, would be profound, but the main practical problem is that there’s no accepted standard to enumerate CVAP. The Census relies on an actual count, while CVAP is done by various statistical sampling methods, none of which are allowed to be used in doing the Census. The argument about prisoner populations in rural areas is particularly ironic, since as things stand right now those prisoners, many of whom come from the big urban areas like Houston and Dallas, are counted in the population of the small rural counties where they are incarcerated. That has the effect of favoring those rural areas in the redistricting process. In addition, a big part of the reason why Texas has been gaining so many members of Congress in recent years is because its overall population growth is fueled in large part by big increases in children and foreign-born immigrants. If plain old population is good enough for that, surely it ought to be good enough for drawing districts. But of course, the law is what five members of the Supreme Court say it is, so who knows. ThinkProgress, which also wrote at length about another redistricting-related case that could stand everything we now know about apportionment on its head, Ross Ramsey, and Dahlia Lithwick have more.

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  1. mollusk says:

    I keep forgetting that “Constitutional conservatives” don’t acknowledge the Fourteenth Amendment. On this issue, its Section 2 says:

    Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

    I recognize that I’m not a Constitutional scholar on the order of Ted Cruz, but crikey, this seems to be pretty cut and dried.

  2. Robbie Westmoreland says:

    The case is about state legislative districts, not US House of Representatives districts. The Apportionment clause of the fourteenth amendment doesn’t apply directly.

    City council districts are fairly irrelevant to the case, too.

  3. Mainstream says:

    If Evenwell wins her case in the Supreme Court, Houston City council districts would have to be reworked, with G and C shrinking the most, and F and I expanding to take in more voters, weakening their Hispanic proportion. H, too, would have to expand, but to a lesser degree, and even A would grow geographically in size.

    I would expect at least one of the current plurality Hispanic state rep districts in Harris county would flip to the Republicans, probably 144, and the Vo and Wu districts could flip R.

  4. Mainstream says:

    There are jurisdictions which disregard prison populations when drawing their local districts, such as Jefferson County for school board, Beaumont city council, etc.

    There are also jurisdictions such as Sumter, SC, which sliced the large air force base which had few voters into slivers and apportioned one such sliver to each of the other city council districts, to prevent unevenness in voting strength.

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