Friday, April 25, 2014

Representational Equality Versus Electoral Equality

A recent lawsuit─Evenwel v. Perry─claims that the Texas Legislature violated the Fourteenth Amendment’s equal protection clause by using total population rather than eligible voters as the basis for redistricting the Texas Senate in 2011. The case raises a fundamental question that the Supreme Court has yet to answer: Whom does a representative in a democracy represent? Is it all of the people in a geographic area (representational equality) or is it only the eligible voters (electoral equality)? It also produces an excellent example of the intersection between ideas and institutions. If you’re more interested in the political implications of the case, Michael Li has an excellent post on his blog.
The issue of the correct metric to use in redistricting has surfaced before in Texas. In Chen v. City of Houston (1998), the US District Court considered whether the City of Houston should have used citizen population rather than total population and reached the following judgment:
Plaintiffs assert that the City must use citizen population figures instead of total population figures in developing its redistricting plans. Plaintiffs, however, have cited no legal authority to support this proposition. Moreover, the argument previously has been rejected by a federal court in California. See Garza v. County of Los Angeles, 756 F.Supp. 1298 (C.D.Cal.1990), aff'd, 918 F.2d 763 (9th Cir.1990). As noted by the Ninth Circuit, use of total population figures protects noncitizens' equal protection rights to representation as "persons." Garza v. Los Angeles County Board of Supervisors, 918 F.2d 763, 775 (9th Cir.1990), cert. denied, 498 U.S. 1028, 111 S.Ct. 681, 112 L.Ed.2d 673 (1991). The Court concludes that the City's use of total population figures for its 1997 redistricting plan was consistent with applicable federal law.
In 2000, the Fifth US Court of Appeals affirmed the district courts’ decision, concluding that “The propriety under the Equal Protection Clause of using total population rather than a measure of potential voters also presents a close question. But in face of the lack of more definitive guidance from the Supreme Court, we conclude that this eminently political question has been left to the political process.”
More recently, the issue was raised in Lepak v. City of Irving, Texas (2010). In that case, the district court rejected the claim that citizen voting age population rather than population is the correct measure for drawing district boundaries. Again, the failure of the US Supreme Court to be dispositive on the issue of representational equality versus electoral equality made a decision difficult. The court stated that the decision is a political one that should be left to the redistricting authority. In a terse opinion, the Fifth US Court of Appeals affirmed the district court’s opinion:
We confronted this exact argument in Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000), and held that equalizing total population, but not CVAP, of each district, does not violate the Equal Protection Clause. Id. at 505; see also id. at 528. The Appellants do not attempt to distinguish Chen, nor do they argue that there has been any intervening contrary or superseding decision of the Supreme Court or this court sitting en banc. Instead, they merely argue that Chen was wrongly decided. However, we are not at liberty to overrule Chen as the Appellants desire. See, e.g., Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999) ("It is a firm rule of this circuit that in the absence of an intervening contrary or superseding decision by this court sitting en banc or by the United States Supreme Court, a panel cannot overrule a prior panel's decision." (citing Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir. 1998))). Accordingly, we AFFIRM the district court's grant of the City's motion for summary judgment.
It’s clear that the issue hasn’t been settled by the Supreme Court, but what are the arguments for each idea of equality? Perhaps the most familiar argument for electoral equality is in 9th Court of Appeals Judge Kozinski’s dissent in Garza v. County of Los Angeles (1990):
A. Before plumbing the doctrinal waters in this murky area of constitutional law, it is worth stating exactly what the County is complaining about. In drawing the remedial plan in this case, the district court adhered closely to state law which calls for supervisorial districts that are equal in population. In doing so, the court wound up with two districts where the numbers of voting age citizens are markedly lower than those in the three other districts.[2] The disparity is particularly 780*780 great between Districts 1 and 3. District 1 has 707,651 eligible voters while District 3 has 1,098,663, a difference of 391,012, about 55% of the eligible voters in District 1. Since it takes a majority in each district to elect a supervisor, this means that the supervisor from District 1 can be elected on the basis of 353,826 votes (less than the difference between the two districts), while the supervisor from District 3 requires at least 549,332 votes. Put another way, a vote cast in District 1 counts for almost twice as much as a vote cast in District 3.
B. Does a districting plan that gives different voting power to voters in different parts of the county impair the one person one vote principle even though raw population figures are roughly equal? It certainly seems to conflict with what the Supreme Court has said repeatedly. For example, in Reynolds, the Court stated: "Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable." 377 U.S. at 563, 84 S.Ct. at 1382. The Court also stated: "With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live," id. at 565, 84 S.Ct. at 1383; and "Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State," id. at 568, 84 S.Ct. at 1385;[3] and "the basic principle of representative government remains, and must remain, unchanged — the weight of a citizen's vote cannot be made to depend on where he lives," id. at 567, 84 S.Ct. at 1384.
Almost identical language appears in numerous cases both before Reynolds, see, e.g., Wesberry v. Sanders, 376 U.S. 1, 8, 84 S.Ct. 526, 530, 11 L.Ed.2d 481 (1964) ("To say that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the principle of a House of Representatives elected `by the People.'"); Gray v. Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 808, 9 L.Ed.2d 821 (1963) ("Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit."[4]); and after, see, e.g., Hadley v. Junior College Dist., 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1970) ("[W]hen members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials."); Chapman v. Meier, 420 U.S. 1, 24, 95 S.Ct. 751, 764, 42 L.Ed.2d 766 (1975) ("All citizens are affected when an apportionment plan provides disproportionate voting strength, and citizens in districts that are underrepresented lose something even if they do not belong to a specific minority group."); Lockport v. Citizens for Community Action, 430 U.S. 259, 265, 97 S.Ct. 1047, 1052, 51 L.Ed.2d 313 (1977) ("[I]n voting for their legislators, all citizens have an equal interest in representative democracy, and ... the concept of equal protection therefore requires that their votes be given equal weight.").
The Court adhered to the same formulation as recently as two Terms ago: "In calculating the deviation among districts, the relevant inquiry is whether `the vote of any citizen is approximately equal in 781*781 weight to that of any other citizen.'" Board of Estimate v. Morris, 489 U.S. 688, 109 S.Ct. 1433, 1441, 103 L.Ed.2d 717 (1989) (quoting Reynolds, 377 U.S. at 579, 84 S.Ct. at 1390).
Despite these seemingly clear and repeated pronouncements by the Supreme Court, the majority's position is not without support, as the Court has also said things suggesting that equality of population is the guiding principle. See, e.g., Reynolds, 377 U.S. at 568, 84 S.Ct. at 1385 ("We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis."); Mahan v. Howell, 410 U.S. 315, 321, 93 S.Ct. 979, 983, 35 L.Ed.2d 320 (1973) ("[T]he basic constitutional principle [is] equality of population among the districts."); Kirkpatrick v. Preisler, 394 U.S. 526, 530, 89 S.Ct. 1225, 1228, 22 L.Ed.2d 519 (1969) ("`[E]qual representation for equal numbers of people [is] the fundamental goal for the House of Representatives.'" (quoting Wesberry, 376 U.S. at 18, 84 S.Ct. at 535)).
In most cases, of course, the distinction between the two formulations makes no substantive difference: Absent significant demographic variations in the proportion of voting age citizens to total population, apportionment by population will assure equality of voting strength and vice versa. Here, however, we do have a demographic abnormality, and the selection of an apportionment base does make a material difference: Apportionment by population can result in unequally weighted votes, while assuring equality in voting power might well call for districts of unequal population.
How does one choose between these two apparently conflicting principles? It seems to me that reliance on verbal formulations is not enough; we must try to distill the theory underlying the principle of one person one vote and, on the basis of that theory, select the philosophy embodied in the fourteenth amendment. Coming up with the correct theory is made no easier by the fact that the Court has been less than consistent in its choice of language and that, as Justice Harlan pointed out in his Reynolds dissent, "both the language and history of the controlling provisions of the Constitution [have been] wholly ignored" by the Court, 377 U.S. at 591, 84 S.Ct. at 1397 (Harlan, J., dissenting), making it impossible to rely on the Constitution for any meaningful guidance. Still we must try.
C. While apportionment by population and apportionment by number of eligible electors normally yield precisely the same result, they are based on radically different premises and serve materially different purposes. Apportionment by raw population embodies the principle of equal representation; it assures that all persons living within a district — whether eligible to vote or not — have roughly equal representation in the governing body.[5] A principle of equal representation serves important purposes: It assures that constituents have more or less equal access to their elected officials, by assuring that no official has a disproportionately large number of constituents to satisfy. Also, assuming that elected officials are able to obtain benefits for their districts in proportion to their share of the total membership of the governing body, it assures that constituents are not afforded unequal government services depending on the size of the population in their districts.
Apportionment by proportion of eligible voters serves the principle of electoral equality. This principle recognizes that electors — persons eligible to vote — are the ones who hold the ultimate political power in our democracy. This is an important power reserved only to certain members of society; states are not required to bestow it upon aliens, transients, short-term residents, persons convicted of crime, or those considered too young. See J. Nowak, R. 782*782 Rotunda & J.N. Young, Constitutional Law § 14.31, at 722-23 (3d ed. 1986).
The principle of electoral equality assures that, regardless of the size of the whole body of constituents, political power, as defined by the number of those eligible to vote, is equalized as between districts holding the same number of representatives. It also assures that those eligible to vote do not suffer dilution of that important right by having their vote given less weight than that of electors in another location. Under this paradigm, the fourteenth amendment protects a right belonging to the individual elector and the key question is whether the votes of some electors are materially undercounted because of the manner in which districts are apportioned.
It is very difficult, in my view, to read the Supreme Court's pronouncements in this area without concluding that what lies at the core of one person one vote is the principle of electoral equality, not that of equality of representation. To begin with, the name by which the Court has consistently identified this constitutional right — one person one vote — is an important clue that the Court's primary concern is with equalizing the voting power of electors, making sure that each voter gets one vote — not two, five or ten, Reynolds, 377 U.S. at 562, 84 S.Ct. at 1381; or one-half.
But we need not rely on inferences from what is essentially an aphorism, for the Court has told us exactly and repeatedly what interest this principle serves. In its most recent pronouncement in the area, the Court stated: "The personal right to vote is a value in itself, and a citizen is, without more and without mathematically calculating his power to determine the outcome of an election, shortchanged if he may vote for only one representative when citizens in a neighboring district, of equal population, vote for two; or to put it another way, if he may vote for one representative and the voters in another district half the size also elect one representative." Morris, 109 S.Ct. at 1440 (emphasis added).
References to the personal nature of the right to vote as the bedrock on which the one person one vote principle is founded appear in the case law with monotonous regularity. Thus, in Hadley v. Junior College District, the Court stated: "[T]he Fourteenth Amendment requires that the trustees of this junior college district be apportioned in a manner that does not deprive any voter of his right to have his own vote given as much weight, as far as is practicable, as that of any other voter in the junior college district." 397 U.S. at 52, 90 S.Ct. at 792. The Court further explained: "[A] qualified voter has a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted," id. (footnote omitted); and "This Court has consistently held in a long series of cases, that in situations involving elections, the States are required to insure that each person's vote counts as much, insofar as it is practicable, as any other person's," id. at 54, 90 S.Ct. at 794 (footnote omitted); and "once a State has decided to use the process of popular election and `once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded,'" id. at 59, 90 S.Ct. at 797 (quoting Gray v. Sanders, 372 U.S. at 381, 83 S.Ct. at 809).
Reynolds itself brims over with concern about the rights of citizens to cast equally weighted votes: "[T]he judicial focus must be concentrated upon ascertaining whether there has been any discrimination against certain of the State's citizens which constitutes an impermissible impairment of their constitutionally protected right to vote." 377 U.S. at 561, 84 S.Ct. at 1381. Again: "Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature." Id. at 565, 84 S.Ct. at 1383.[6] And yet again: "And the right of suffrage can be denied by a debasement or 783*783 dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Id. at 555, 84 S.Ct. at 1378. Reynolds went so far as to suggest that "[t]o the extent that a citizen's right to vote is debased, he is that much less a citizen." Id. at 567, 84 S.Ct. at 1384.
The case for representational equality is articulated in the US Department of Justice brief in Lepak v. City of Irving, Texas (2011):
But it is important to understand the constitutional values furthered by the jurisdiction’s choice here, as well as the practical reasons supporting its decision.
1.  The City’s Choice Of Total Population Supports The Constitutional Values Of Equality And Of Representative Government.
Population equality will not always accommodate the twin goals of equality of representation and equality of voting power in precisely equal measure, because the population of a district changes, the figures on which apportionment is based are inherently imprecise, and the inhabitants of a district who at the time of apportionment may not be citizens or eligible to vote may become eligible voters before reapportionment occurs. Gaffney, 412 U.S. at 744-746 & n.10.
The Supreme Court has explicitly recognized on two occasions a population-based redistricting need not precisely equalize voting power. In Gaffney, the Court observed that even though decennial apportionments are based primarily on census figures, “[t]he proportion of the census population too young to vote or disqualified by alienage or nonresidence varies substantially among the States and among localities within the States.” 412 U.S. at 746-747. The Court noted that the 1970 Census, for example, showed that “New York has a 29% variation in age-eligible voters among its congressional districts, while California has a 25% and Illinois a 20% variation.” Id. at747 n.13. The Court recognized that population-based apportionment would by necessity include individuals who were not eligible to -18- vote, including “aliens, nonresident military personnel, [and] nonresident students.” 747.Notwithstanding these disparities, the Court was not concerned that the practice in these States of apportioning districts on the basis of population violated the Fourteenth Amendment. On the contrary, the Court cited the inherent imprecision in population-based apportionment as the reason why “[f]air and effective representation * * * does not depend solely on mathematical equality among district populations. There are other relevant factors to be taken into account and other important interests that States may legitimately be mindful of.” Id. at 748-749 (footnote omitted).
The rule of population equality thus is a principle designed in part to prevent “diminution of access to elected representatives.” Kirkpatrick, 394 U.S. at 531. Under our representative form of government, an elected official represents all persons residing within his district, whether or not they are eligible to vote and whether or not they voted for the official in the preceding election. Davis v. Bandemer, 478 U.S. 109, 132 (1986) (plurality). Because elected officials represent all individuals in their jurisdiction, population equality therefore “assures that all persons living within a district – whether eligible to vote or not – have roughly equal representation in the governing body.” Garza, 918 F.2d at 781.
As the City argued below, apportionment based on population equality recognizes the representative’s role in providing services to the residents of the -19- district. R. 413-415. Constituents are members of the community who expect and deserve benefits from their elected officials. An elected official therefore has a duty to ensure that the government addresses the concerns of his or her constituents, regardless of their ability to vote, and ensure that his or her district receives its fair share of equal government services. See, e.g., Garza, 918 F.2d at 781 (“[a] principle of equal representation serves important purposes,” including assuring “that constituents have more or less equal access to their elected officials” and assuring “that constituents are not afforded unequal government services depending on the size of the population in their districts.”).
In contrast, the electoral scheme plaintiffs suggest the Constitution requires (Br. 27-32) is inconsistent with the rule of electoral equality that they purport to advocate. Plaintiffs exclude children and noncitizens from an apportionment base when drawing districts, but include persons ineligible to vote because they have been adjudged to be mentally incompetent or convicted of a felony. As the City notes, “no rational basis is apparent for plaintiffs picking and choosing among those persons ineligible to vote to determine which will be in the apportionment base and which will be excluded.” R. 418; see also Kalson v. Paterson, 542 F.3d 281, 289 (2d Cir. 2008) (noting that a theory of representation based on equally weighted votes is not accomplished by a voting-age population apportionment base because it fails to exclude felons and noncitizens).
                                                                                                                                                                                                                                                                                                                   In sum, it is entirely appropriate for a jurisdiction to recognize that its government represents all people, including those who are ineligible to vote or who choose not to vote. See Reynolds, 377 U.S. at 560-561 (“the fundamental principle of representative government is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a state”).
2. The Application Of Plaintiffs’ Strict Reliance On Citizen Voting-Age Population Would Disrupt A Broad Range Of Well-Established And Valid Apportionment Systems.
Here, the City properly made the choice to use total population as its measure of compliance with one-person, one-vote. Jurisdictions in Texas have uniformly adopted, and submitted for Section 5 review, districting plans that use total population to equalize population figures between districts. Under the Attorney General’s Section 5 review process, the redistricting submissions from the State, counties, and municipalities in Texas after the 2000 Census showed that “all these jurisdictions used total population in the districting process as the basis for determining whether population was equal among districts.” R. 822. Plaintiffs’ attempt to require the use of citizen voting-- age population is without precedent in the most recent districting plans submitted by Texas jurisdictions to the Attorney General for Section 5 review.
The Texas Legislative Council has advised that total population will be the appropriate population benchmark in the upcoming 2010 redistricting cycle. The redistricting guide published by the Texas Legislative Council states that total population is the requisite benchmark for apportionment. See Texas Legislative Council, Guide to 2011 Redistricting15 (2010), available at (“Because of the federal constitutional requirement that districts of a given type have equal or nearly equal population (one person, one vote), redistricting plans must include information about the total population of each district.”). The guide further states that “districts of a given type (senate, house congressional, SBOE) must have equal or nearly equal populations,” and ideal district size is “the population a district would have if all districts in a plan have equal populations, and it is determined by dividing the total state population by the number of districts in the plan.” Id. at 5.
Redistricting manuals relied on by States and local jurisdictions across the country have long made clear that, in practice, total population is the standard baseline used to draw districts that comply with the one-person, one-vote requirement. For example, the manual on reapportionment published by the National Conference of State Legislatures in advance of the 1990 redistricting cycle states that to measure population equality among districts, “a logical starting point is the ‘ideal’ district population,” explaining that in “a single-member district plan, the ‘ideal’ district population is equal to the total state population divided by the total number of districts.” National Conference Of State Legislatures Reapportionment Task Force, Reapportionment Law: The 1990s18 (1989).
This guidance was repeated during the 2000 redistricting cycle and manuals produced in anticipation of the upcoming round of redistricting continue to provide the same instruction. See, e.g., J. Gerald Hebert et al., The Realist’s Guide to Redistricting1 (2000) (“Perhaps the most fundamental requirement the law imposes on redistricters is ‘population equality’ * * *.  In practical terms, population equality means that each district in an apportionment plan should have roughly, if not precisely, the same number of people as every other district.”); Texas Legislative Council, Guide to 2001 Redistricting26 (2000), available at <> (same); National Conference Of State Legislatures, Redistricting Law 2000 at 21 (1999) (same); J. Gerald Hebert, et al., The Realist’s Guide to Redistricting 1 (2d ed. 2010) (same); Texas Legislative Council, Guide to 2011 Redistricting 15 (same); National Conference Of State Legislatures, Redistricting Law 2010 at 23 (2009) (same).
In sum, a ruling that the City’s choice of total population as the appropriate apportionment measure is unconstitutional not only would conflict with binding precedent, but it would also be disruptive to the normal redistricting and Section5 review processes.
The issue is clear. Which form of equality satisfies the Fourteenth Amendment’s Equal Protection Clause in redistricting? Is it electoral equality or representational equality? The decision is not easy, but I believe that the metric of equality that ensures the representation of the greatest number of persons is the one that should be used. To restrict representation by an elected representative to those who are eligible to vote is contrary to democracy. Thus, the institutional practice that supports that metric of equality is the use of total population. But I’m not certain that the US Supreme Court, should they hear Evenwel v. Perry on appeal, will decide accordingly.