Wednesday, April 6, 2016

Supreme Court Vindicates Venerable One (Person/Permanent Resident/Non-incarcerated Permanent Resident/Citizen/Voter), One (Vote/Share of Representation/Share of Representative Access/Share of Constitutent Services/Share of Constitutent Feedback) Rule

All the possible numerators and denominators for the one-person, one-vote rule in the title of this post come straight out of the Court's opinion in Evenwel Monday.  See, e.g., slip op. at 4 n.3 (listing a variety of apparently permissible exclusions, on the part of various states, from "the total-population apportionment base," including formerly non-domiciled prisoners, immigrant non-citizens,* and temporary residents); id. at 16 n.12 (declining to address whether non-voters even have standing to bring one-person, one-vote claims); id. at 19 (declining to decide whether states may equalize voters, rather than residents, between districts); id. (noting that total-population apportionment has the virtue of "ensuring that each representative is subject to requests and suggestions from the same number of constituents"); but see id. at 19 n.14 (acknowledging the lack of any constitutional right to equal access to representatives).

* The Court is careful to quote the SG's claim, in his brief, that the immigrant non-citizen exclusions, which can be found in Maine and Nebraska's state constitutions, are currently not "operational as written."  I take this observation to be calculated, in part, to negate any inference of the propriety of those exclusions from the Court's cataloguing them in its list of modest departures from total-population apportionment.  Interestingly, not "operational as written" turns out to be a euphemism for Maine and Nebraska violating their own state constitutions by counting non-citizens in recent reapportionments.

To be clear, my complaint isn't that the Court has turned the one-person, one-vote rule into the one-permanent-resident, one-share-of-representative-access rule; I quite agree with the Court that slogans about the doctrine are irrelevant.  My complaint is that the Court's turned the rule into the one-x, one-y rule.  It's hard to see how the Constitution can mandate the equalization of something or another among some or another set of persons, within 10% deviation no less, without providing, or being construed to provide, what that something or another or some or another set of persons is.  It's as if the Court had held in San Antonio Independent School District that the Constitution mandated equal educational ______ as between _____ but let the states decide how to fill in the blanks.

The Court's argument collapses on itself in painfully obvious ways.  The Court concedes in footnote 14, or appears to concede, that there is no constitutional right to equal access.  ("Appellants point out that constituents have no constitutional right to equal access to their elected representatives.  But a State certainly has an interest in . . . facilitat[ing] access for all its residents.")  If that is so, but there is some constitutional right against a diluted vote that underwrites the one-person, one-vote rule, how can a vote-dilutive equalization of access like the one in Evenwel be tolerated?  Recall that the differences between the districts at issue in this case, in terms of voters, exceed 40%, and that the (voters? residents? residents not residing in jail?) the one-person, one-vote rule requires to be equalized between districts have to be equalized within 10%.  It would seem to follow that whatever constitutional right there may be against vote dilution is too weak to explain the rule, since that right tolerates deviations four times greater than the rule does.  

On the other hand, if there isn't a constitutional right against a diluted vote, or at least one not strong enough to forbid deviations of 40% between districts' voter-population, what right underwrites the one-person, one-vote rule?  The Court concedes away equal access, is unwilling to venture a dictum, see slip op. at 16 n.12, on whether non-voters even have standing to challenge malapportioned districts, and even suggests at one point that the choice of apportionment base may be a nonjusticiable political question, see id. at 7 n.6, which if true would seem to rule out any one right as an explanation of the rule.  Perhaps there is some right to equal representation, as apart from equal access, but the Court's lone explanation of why a state might even want to equalize total population between districts, let alone have to, says that non-voters have needs for constituent services and suggestions to offer on many policy issues, and is immediately followed by the footnote disclaiming any right to equal access.  Besides, it's a little difficult to understand what, substantively, a right to equal representation as apart from equal access would be.  What does it mean to say that a non-voter - a child, or a non-citizen, or a felon - has a right to be in a district with population equal to that of surrounding districts, if it doesn't mean that the non-voter has a right to equal opportunity to make suggestions and request services?  That his presumed interests will be given equal voice in Congress and the state legislatures, by representatives who have no electoral incentives to give his interests voice?  The Court is wise to not address whether non-voters have standing to bring such elusive equal-representation claims.

Ultimately, the Court seems to suggest that the one-person, one-vote rule flows from both a right against vote dilution and a right to equal representation (though it's careful to refer to both as mere "interests"), the product of which rights somehow ends up being a right against 10% deviations, between districts, in whatever population base the state chooses, with possibly a thumb on the scale in favor of residents.*  As doctrine, this is hard to stomach.  All the same, it's very understandable.  Evenwel, it strikes me, is a predictable consequence of this Court grappling with Warren and Burger Court precedent, as the Warren Court's allergy to legal reasoning and doctrine and the Burger Court's penchant for arbitrary, faux-legislative constitutional decision rules mix with the present Court's penchant for stare decisis and inability to agree on deep theories of almost anything.

* Although the Court disclaims deciding whether states may equalize voters instead of residents, that question was in no way before the Court, as much as some of the parties wanted to put it there, so it's hard to infer much from the Court's declining to decide that issue.  And though some members of the majority, including the author of the Court's opinion, almost certainly would forbid states from equalizing voters, hence the opinion's extensive citation to evidence of the Fourteenth Amendment's framers' preference for equalizing population, I find it hard to believe that there is a majority for mandatory equalization of residents.  Some people will draw a negative inference from the fact that Justice Alito's concurrence, strongly suggesting that states may equalize voters, was only joined by Justice Thomas, but it may be that Justice Kennedy and the Chief Justice simply saw no reason to stake out a position on the issue in a case that didn't present it.

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