One person, one vote: SCOTUS to tell us what it means

[Torie]

SCOTUS just granted cert to hear Evenwel v Abbott. The issue is whether the count should be 1) residents, which is how the count is done now, 2) just eligible voters or CVAP (citizens of voting age population, or 3) states can choose either one for redistricting purposes (raising an issue as to how the census bureau will do the counts).

Obviously the ruling could have huge partisan implications, maybe forcing the consolidation of many majority minority CD's, particularly Hispanic ones (lots of non voting age kids, lots of non citizens), but also to a marginal extent, black ones (black population percentage higher than BVAP percentage by a couple of percent typically because of more kids), while calving off more Pub CD's in a form of mitosis.

Frankly I am amazed SCOTUS agreed to take this case.

I am putting this thread here, because this is the epicenter of the Atlas obsession with district population counts. Without the counts, we have nothing to work with, and are out of business!

[Torie]

If a person is 16 at the time of the census, he would then be essentially disenfranchised for the first 8 years after he becomes a voter. I'd be very surprised if the court doesn't shoot this case down.

It's easy enough to create a CVAP+citizens age 8-18 metric to resolve that, right?

The idea of a census is a snapshot in time, and not a projection into the future. The obverse of not counting kids too young to vote, is that we count old folks who will die during the ensuing 10 years, which one could claim is another form of "disenfranchisement" of those still living.

[Torie]

If a person is 16 at the time of the census, he would then be essentially disenfranchised for the first 8 years after he becomes a voter. I'd be very surprised if the court doesn't shoot this case down.

It's easy enough to create a CVAP+citizens age 8-18 metric to resolve that, right?

The idea of a census is a snapshot in time, and not a projection into the future. The obverse of not counting kids too young to vote, is that we count old folks who will die during the ensuing 10 years, which one could claim is another form of "disenfranchisement" of those still living.

I'm unconvinced.  Post-1900, there's reasonable certainty that an 8 year old will live to be 18 and become an eligible voter.   We don't have any comparable level of confidence in whether a 70 year old today will or will not live until 2021 or 2031.

OK, but that is not how the census works, and I very much doubt the issue you brought up will be a factor which the court considers, or that it will even be argued, or was argued, in the briefs. Heck, another example is that we know some districts are gaining population rapidly and others losing population. We don't project for that either.

[Torie]

Doing this for redistricting but NOT for apportionment, while consistent under the constitution, makes a total mockery of the principles here. Either non-citizens should count, or they don't. Otherwise this is handing states like Texas a huge tranche of seats based on its non-citizen population which won't count for legislators. This means that a citizen in a Republican district in Texas will have an unequal vote compared to a citizen in a Republican district in Kentucky or Ohio because the R districts in TX will have significantly fewer residents and voters.

Good insight actually. Voting age citizens who make up a smaller percent of a states's population would get more representation, than those in states where they make up a higher percentage, which discrepancy arguably traduces rather than effectuates the one person, one vote principle. That would be an excellent argument to put into a SCOTUS legal brief. That one resonates with lawyer-legal types methinks. I assume there is not much argument at all to abandon inter state apportionment based on voting age citizens, rather than population, but then I have not researched or read about that one. If so, that puts the argument to use, or even to be allowed to use, voting age citizens as what to count, in a vise from which it will be very difficult to escape I would think.

[Torie]

Doing this for redistricting but NOT for apportionment, while consistent under the constitution, makes a total mockery of the principles here. Either non-citizens should count, or they don't. Otherwise this is handing states like Texas a huge tranche of seats based on its non-citizen population which won't count for legislators. This means that a citizen in a Republican district in Texas will have an unequal vote compared to a citizen in a Republican district in Kentucky or Ohio because the R districts in TX will have significantly fewer residents and voters.

Good insight actually. Voting age citizens who make up a smaller percent of a states's population would get more representation, than those in states where they make up a higher percentage, which discrepancy arguably traduces rather than effectuates the one person, one vote principle. That would be an excellent argument to put into a SCOTUS legal brief. That one resonates with lawyer-legal types methinks. I assume there is not much argument at all to abandon inter state apportionment based on voting age citizens, rather than population, but then I have not researched or read about that one. If so, that puts the argument to use, or even to be allowed to use, voting age citizens as what to count, in a vise from which it will be very difficult to escape I would think.

I suspect that they are probably just taking this case to require that all states use a persons standard, removing it from state discretion.  But there is an alternative consistent scenario in which they impose districting by CVAP next year, then use a follow up case in 2017/18 to rule that "persons" in the 14th Amendment = CVAP and change apportionment in time for 2020.  Would that be reasonable or unreasonable?

As I said, I have not read up on the inter state apportionment issue, but SCOTUS would certainly address both issues in the one case, if they go the CVAP route, because they would have to address that issue in their ruling, or explain why the potential discrepancy would be tolerable.

[Torie]

Congress, through the VRA, requires States to estimate the CVAP (and its racial composition) when performing redistricting.

Does this requirement apply to all 50 states?

I think some circuits such as the 9th go the CVAP route, but others do not. That is my recollection from some years' back.

[Torie]

The US already uses different counts for apportionment and redistricting. Apportionment includes overseas military and other officials attributed to a specific state. Those persons are not assigned to any census block, so they don't count for redistricting. I don't see any reason that SCOTUS couldn't decide that persons ineligible to vote are also withheld from the redistricting count.

The order of magnitude of that discrepancy (which is unavoidable), and to a lessor extent the discrepancy between CD size of a one CD state up or down as compared to multi CD states (also unavoidable), is relatively minor as compared to the avoidable discrepancy that would be introduced by virtue of counting non citizens for purposes of inter state allocations, but not intra state allocations.

[Torie]

The US already uses different counts for apportionment and redistricting. Apportionment includes overseas military and other officials attributed to a specific state. Those persons are not assigned to any census block, so they don't count for redistricting. I don't see any reason that SCOTUS couldn't decide that persons ineligible to vote are also withheld from the redistricting count.

The order of magnitude of that discrepancy (which is unavoidable), and to a lessor extent the discrepancy between CD size of a one CD state up or down as compared to multi CD states (also unavoidable), is relatively minor as compared to the avoidable discrepancy that would be introduced by virtue of counting non citizens for purposes of inter state allocations, but not intra state allocations.

The present discrepancy is avoidable, since overseas military personnel could be assigned to their last home state address, in much the same way as some states are doing with their prison populations.

I understand that there is a matter of degree, and I am not advocating for a particular standard, but if SCOTUS finds for the plaintiffs in the question of redistricting, I think they can read the constitutional language on apportionment as a strict count of all persons in the state. Though I will be curious to see the arguments, it does seem that the inconsistency today is the use of CVAP to count for VRA purposes, but not for the overall district population.

Well I suppose if it reaches SCOTUS, it could order that for federal election purposes, overseas residents should be assigned to a district. At least there is some objective standard. The VRA and CVAP is about statistical estimates, which makes sense, since the standard of electing a representative of a minority's choice is all about statistical estimates, rather than hard numbers. However, apportionment presumably is all about hard numbers, rather than estimates. And that is the rub here. If SCOTUS goes the CVAP route, presumably it would have to order the census bureau to do citizenship counts next time. Otherwise, apportionment is based on estimates, and not hard numbers, which seems to me something the Court would be most uncomfortable in doing.

This data gathering problem was brought up more than once, in this quite interesting radio discussion with two quite erudite academics discussing this issue.  I think it is worth listening to. Interestingly, neither academic mentioned Brittain33's insight about the discrepancy we are talking about here, as between CD's in different states which get more representation or less depending on how many non citizens are out there percentage wise  in other CD's in the state as compared to other states. Maybe, as is typical, it is because legal types are just not very good at fathoming all of this rather esoteric mathematical gymnastics, as we all know here so well given Jimtex's awesome body of work on the mathematics of weighted voting, and the gross incompetence of the courts in using the correct mathematical formulas, or understanding the questionable assumptions underlying the voting power calculation in multi member districts, when adjudicating it.

[Torie]

Does with your calculations an Hispanic CD along the Rio Grande need to be lost? What happens to the Hispanic percentage of TX-23 (that marginal seat around San Antonio)?

[Torie]

Sean Trende weighs in telling us what we already knew: changing the count to CVAP would breed more Pub seats. He also agrees with me, albeit without analysis, that SCOTUS is unlikely to go there, but then he also agrees with me, that it was surprising in the first instance that SCOTUS granted cert for the case given the absence of  conflicting decisions in the appellate circuits.

[Torie]

One person, one vote: SCOTUS tell us what it means?

SCOTUS: Dunno.

SCOTUS decision in Evenwel v Abbott

I suspect that Justice Scalia was going to write the opinion, which would have more vigorously defended the idea that it was up to the states to determine what population base to use.

Ginsberg's opinion says that states may use total population. Lawyer's know what "may" means. The rest of the opinion then tries to extrapolate from congressional apportionment, which has nothing to do with legislative apportionment.

Rather than asking for rehearing, they avoid answering the question whether eligible voters may be used.

Alito's opinion is the one that Scalia would have written.

I really don't get how leaving the standard up to the states makes any sense with Baker v. Carr.  Equal population is required, but population can mean whatever the state legislature wants it to mean?  If you're going to do that, why not just go Thomas and overturn Baker v. Carr?

The Tennessee constitution and statute in question in Baker v Carr provided for apportionment on the basis of eligible voters. Tennessee had used eligible electors for a few decades, but then stopped.

You're suggesting that if Tennessee had actually updated its apportionment, the SCOTUS would/should have intervened and required that they use population equality?

Who is going to be the next new justice?