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

[Skill and Chance]

Assuming this decision comes next winter, there wouldn't be sufficient time to redistrict until after the 2016 elections, right?  So any new maps would be negotiated and drawn by the 2017 state legislatures?

[DrScholl]

There is no way the court isn't going to rule in favor of this considering it has a Republican majority, so we can look forward to elections where it is almost impossible for Republicans to lose.  From what I'm reading, it would shift electoral votes mostly to Republican states.

[Skill and Chance]

There is no way the court isn't going to rule in favor of this considering it has a Republican majority, so we can look forward to elections where it is almost impossible for Republicans to lose.  From what I'm reading, it would shift electoral votes mostly to Republican states.

It actually wouldn't be as partisan as it sounds at the electoral college level: http://themonkeycage.org/2013/03/21/what-if-the-supreme-court-eliminated-noncitizen-representation/

Within states, it would cause currently GOP districts to contract and currently Dem districts to expand in most places.  So it might actually help alleviate the Dem self-packing in some Northern and Eastern states as long as they have a say in the process.  It probably does make it possible to wipe out half of the Dem districts in Texas, though.  Also, even if it did end up hurting them severely at the outset,  Democrats would just change their platform to win more rural whites, not die out as a party.

This would be a CVAP 2012:

This is actually still 271D/267R:

And this is still 270D/268R:

[Slander and/or Libel]

This is only about how to allocate for districts within states, not for how to allocate seats in the House to each state. At least as I understand it. The constitution is pretty clear that apportionment of House votes is to be by full population.

[jimrtex]

Assuming this decision comes next winter, there wouldn't be sufficient time to redistrict until after the 2016 elections, right?  So any new maps would be negotiated and drawn by the 2017 state legislatures?

Texas has redistricted twice after the primary election because of decisions that came down in the middle of the -06 year.  A decision this winter would be easy peasy to handle.

[Brittain33]

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.

[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.

[Skill and Chance]

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?

[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.

[True Federalist (진정한 연방 주의자)]

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.

You mean like how SCOTUS squarely addressed the issue of same-sex marriage in Windsor, thus requiring all fifty States to recognize same-sex marriages since 2013?

[jimrtex]

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.

The Texas case involves only elections for the Texas Senate.  There are a couple of reasons for that.

(a) The senate redistricting case was completed in 2013.  The congressional and house redistricting cases continue, and likely will do so for the rest of the decade.  If the lawsuit would have challenged all the districts, it would have been yanked into the morass in San Antonio and likely have been offhandedly dismissed.

(b) The Texas Constitution provides no requirement for senate districts other than that they be contiguous.  This is somewhat of an accident.  In 2006, there was an omnibus constitutional amendment that removed "archaic" or "obsolete" provisions from the constitution.  One of these said that senate districts could not divide counties, which violated OMOV.   But the constitution also said that senate districts should be based on "qualified voters".  This was also removed.

Before 2000, legislators were given the advice that they could use "qualified voters" if they could get a reasonable basis for measuring it.  The census deliberately avoids asking about citizenship because it would discourage participation, and it is pretty clear that "registered voters" is not a legal substitute for "qualified voters".  It may have been ignored, but it was not archaic or obsolete.

So the question before the court is whether the legislature may "choose" to use population if if violates equal protection, which is the basis for the legislative OMOV decisions.  Wesberry v Sanders was not decided on the basis of equal protection, but rather on what (the SCOTUS divined) Article 1 says about the election of representatives.

If the plaintiffs prevail in the current case, I'd guess that there would be cases about congressional districting.   Note that Justice Harlan in his dissent in Wesberry said that majority had swept the issue of population v. voters under the rug.

[Skill and Chance]

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.

The Texas case involves only elections for the Texas Senate.  There are a couple of reasons for that.

(a) The senate redistricting case was completed in 2013.  The congressional and house redistricting cases continue, and likely will do so for the rest of the decade.  If the lawsuit would have challenged all the districts, it would have been yanked into the morass in San Antonio and likely have been offhandedly dismissed.

(b) The Texas Constitution provides no requirement for senate districts other than that they be contiguous.  This is somewhat of an accident.  In 2006, there was an omnibus constitutional amendment that removed "archaic" or "obsolete" provisions from the constitution.  One of these said that senate districts could not divide counties, which violated OMOV.   But the constitution also said that senate districts should be based on "qualified voters".  This was also removed.

Before 2000, legislators were given the advice that they could use "qualified voters" if they could get a reasonable basis for measuring it.  The census deliberately avoids asking about citizenship because it would discourage participation, and it is pretty clear that "registered voters" is not a legal substitute for "qualified voters".  It may have been ignored, but it was not archaic or obsolete.

So the question before the court is whether the legislature may "choose" to use population if if violates equal protection, which is the basis for the legislative OMOV decisions.  Wesberry v Sanders was not decided on the basis of equal protection, but rather on what (the SCOTUS divined) Article 1 says about the election of representatives.

If the plaintiffs prevail in the current case, I'd guess that there would be cases about congressional districting.   Note that Justice Harlan in his dissent in Wesberry said that majority had swept the issue of population v. voters under the rug.

So even if the Court rules for the plaintiffs, e.g. CA would presumably still be able to choose to use the current system, but states other than Texas could still choose to change?

[publicunofficial]

The Constitution is pretty clearly against using anything other than pure census data to determine electoral votes and the Supreme Court has always followed it (No using population estimates to account for people who don't respond to the census, ect.). Does it really make sense for it to be suddenly okay for districts?

[Landslide Lyndon]

OK, it might be a minor thing but what happens with North Dakota which has no voter registration?

Also, I read at DKE that the decision might be practically unenforcable.

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[jimrtex]

The Constitution is pretty clearly against using anything other than pure census data to determine electoral votes and the Supreme Court has always followed it (No using population estimates to account for people who don't respond to the census, ect.). Does it really make sense for it to be suddenly okay for districts?

Congress has been quite deferential to Congress in its determination of the number of representatives and the conduct of the census.  Apportionment has not always been proportional in a mathematically sense.

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

The Continental Congress in the Northwest Ordinance provided for apportionment of territorial legislatures on the basis of adult free males.

[Brittain33]

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?

[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.

[dpmapper]

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.

There are already inter-state discrepancies in vote strength.  Compare a Montana voter for the House to a Rhode Island voter.  The fact that this might alter the discrepancies (decreasing them in some cases, increasing them in others) is basically irrelevant.  The only question is how best to ensure that, within each state, all voters are afforded equal protection. 

[Adam Griffin]

538 has a write-up.

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Claims Republicans would gain 8 seats in the House.  TX shrinks from 38 EVs to 34; CA from 55 to 49; NY from 29 to 28.

IA, KY, LA, MI, MO, MT, NC, OH, OR, PA, VA each gain a new seat.

[Brittain33]

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.

There are already inter-state discrepancies in vote strength.  Compare a Montana voter for the House to a Rhode Island voter.  The fact that this might alter the discrepancies (decreasing them in some cases, increasing them in others) is basically irrelevant.  The only question is how best to ensure that, within each state, all voters are afforded equal protection. 

The issue is that it needlessly causes a new discrepancy of the type that this change purportedly addresses. If there were a political Hippocratic oath to "do no harm," this fails miserably.

[dpmapper]

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.

There are already inter-state discrepancies in vote strength.  Compare a Montana voter for the House to a Rhode Island voter.  The fact that this might alter the discrepancies (decreasing them in some cases, increasing them in others) is basically irrelevant.  The only question is how best to ensure that, within each state, all voters are afforded equal protection. 

The issue is that it needlessly causes a new discrepancy of the type that this change purportedly addresses. If there were a political Hippocratic oath to "do no harm," this fails miserably.

And what I am saying is that a) the inter-state discrepancy is not a "new discrepancy", and b) it doesn't make the existing discrepancy worse, only different.  Some of the changes will decrease discrepancies. 

[Brittain33]

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.

There are already inter-state discrepancies in vote strength.  Compare a Montana voter for the House to a Rhode Island voter.  The fact that this might alter the discrepancies (decreasing them in some cases, increasing them in others) is basically irrelevant.  The only question is how best to ensure that, within each state, all voters are afforded equal protection.  

The issue is that it needlessly causes a new discrepancy of the type that this change purportedly addresses. If there were a political Hippocratic oath to "do no harm," this fails miserably.

And what I am saying is that a) the inter-state discrepancy is not a "new discrepancy", and b) it doesn't make the existing discrepancy worse, only different.  Some of the changes will decrease discrepancies.  

By new discrepancy, I implied "new type of discrepancy."

If you can suggest any change to the Rhode Island - Montana discrepancy that doesn't involve fractional representatives or increasing the size of the House of Representatives to 2,000 members, I'm all ears. It's unsupportable to compare an unavoidable artifact of small states to a superfluous distortion that is avoidable and afflicts a large number of states.

[dpmapper]

This is in no way a new type of discrepancy.  We already have a discrepancy between a voter in TX-28 and a voter in MT-AL.  Putting more voters into TX-28 will reduce this discrepancy. 

You seem to be concentrating on the fact that the discrepancy between MT-AL and, say, TX-19 will grow.  Sure, that's true, but that discrepancy was not as severe as the one between TX-28 and MT-AL.  You can't claim to be concerned about one discrepancy but not the other.



Put it another way, right now the discrepancies between vote strength in different districts are due BOTH to the non-fractional number of representatives, which causes inter-state discrepancies, AND to the inclusion of non-voters in the count for drawing of lines.  Limiting the count to CVAP means that the second factor is eliminated, but it doesn't mean that the remaining first factor is new, or is made worse. 

[muon2]

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.

[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.