Originally, states were free to re-district as they wished. Some states, such as California and Nevada, followed a “Federal Plan” for their state Senates. For example, each county in Nevada had one state Senator regardless of population; in another case, Los Angeles County had only one of forty state Senate seats despite holding 1/ 3 of the state’s population. This was struck down by the Supreme Court in the 1960’s under the mantra of “one person, one vote”. But just what does that phrase mean:

“A half-century after the Supreme Court declared the democratic ideal that the voters within a state should be equal to each other, it has indicated that it is finally ready to say how that should be measured. ‘One person, one vote’ was a very simple constitutional slogan. But what does it mean, in the real world of sorting out election opportunity? “Next Tuesday, December 8, the Court will take up the case of Evenwel v. Abbott, a Texas case in which two voters have complained that, because they were placed in two state senate districts with many other voters, their votes count for less than those in other districts with fewer voters eligible to go to the polls.”

The problem is when the Supreme Court used population overall and voters interchangeably:

“Actually, when the Supreme Court in the 1964 decision in Reynolds v. Sims first mandated equality, it used the idea of population and voters interchangeably. ‘The overriding objective,’ it said, ‘must be substantial equality among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the state.’ “… ” Because each district would elect only one state senator, the power of each voter’s ballot would be greater in those districts with fewer actual or potential voters, than those who wound up in districts with larger numbers of voters. For those in the latter group, their votes were said to be diluted — each ballot had less electoral clout when cast.”

Considering that the original decisions of Reynolds v. Sims and Wesberry v. Sanders were about one person’s vote having less weight than another person’s vote, the drawing of districts to equalize the weight and impact of each voter would seem to be paramount such that “one person” would have “one vote” proportionate to others.

However there are arguments to the contrary, some of which are ridiculous. Paramount amongst that is the strange idea that equal representation based on the number of warm bodies in a particular district translates to “one man, one vote“, especially since a denial of unequal representation based on persons does not translate to an unequal representation of voters.

A ruling in favor of the redistricting based on the number of voters does not in any way, shape, or form deny the vote to any eligible voter, yet some are hysterically yapping that such a decision would “gut” the Voting Rights Act or “signal a major retreat from the post–Civil War principle that all people should be fully counted as equal members of society under equal protection”

The real reason the usual suspects are whining is because it would mean that predominantly Democrat voting groups (e.g. Hispanics) would not be able to make their votes count for more due to the presence of voter ineligible persons. Many majority Hispanic districts would lose their majority or be lost to high voter eligible White populations.

Such a decision would not “discriminate” against such Democrat voting groups, but simply take away the privilege and power that they had enjoyed.

Arguments just get sillier from there:

“The Evenwel plaintiffs should not get the ruling they desire. First, a ruling for the plaintiffs is unworkable. State and local governments redistrict based on Census data. But the Census does not inquire into citizenship or voter registration and, therefore, does not collect data on who is eligible to vote. As such, there is no national list of eligible voters to implement basis other than total population for apportionment. “

Actually, states don’t need the census to keep track of voters. They already do this. This then is an ignorable argument.

“Second, a ruling in the plaintiffs’ favor would create an indefensible inconsistency within the Constitution. One provision of the Constitution requires the states to draw each district for the U.S. House of Representatives to contain the same number of inhabitants. The plaintiffs nevertheless contend that another provision of the Constitution prohibits the states from drawing state legislative districts in the same way. Thus, the plaintiffs argue that the Constitution prohibits what it also requires. That makes no sense.”

The text of the Constitution does not actually districts of an equal number of persons. The argument makes no sense.

“Most importantly, as Common Cause argued in an amicus curiae brief filed in Evenwel, the plaintiffs’ challenge runs counter to the most fundamental principle of representative government and reveals a basic misunderstanding of the Equal Protection Clause, which guarantees to each ‘person . . . the equal protection of the laws.’ Every person in the United States—whether an eligible voter or not—is subject to the laws enacted by the state legislatures. Each state legislator is charged to represent every person in his or her district—not only those who made campaign contributions, or voted for him or her, or are eligible to vote. Therefore, every district represented in a legislative body should contain the same number of people. “

Being in a district with notably more or less warm bodies than another person does not deny anyone “equal protection of the laws.” At most, it might mean that some legislators theoretically would have to deal with more constituent matters than another, or that the Constitutional “regress of grievances” might be effected due to sheer volume. Though such discrepancies can already exist strongly suggests that these to not be particularly grave concerns.

In contrast, being a voter in a district with few eligible voters compared to another does in fact create a real and measurable inequality.

On a side note, whether it is up to the Federal government and the Supreme Court to decide is another matter, with the “one person, one vote” running counter to the aspect of bicameral legislatures where each house is constituted differently as a means of insuring checks and balances within the state Legislature, and to put a check on a mere majority. California, for example, would have a Republican majority state Senate under it’s last “Federal plan” for districting before it was overturned. Ironically enough, the California voters as a whole supported the “Federal Plan” at the ballot box. Perhaps the will of the people should rule, and not the rule of the Supreme Court.



Tweet