Posted 12:47 PM by Robert

Down the Rabbit Hole with the Supreme Court III:
Feeding the Gerrymander

Would now-prevailing "one person - one vote" Supreme Court precedent allow California to create two new, adjoining State assembly districts, each with exactly the same number of registered voters, but with the first district having, say, three times the population of the second district?

The popular understanding of the "one person - one vote" rule would certainly be shocked if such districts were allowed. But, on the other hand, as Fritz Schrank points out, the Court specifically rejected the use of strict mathematical formulas when it said:

"[The] proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination." [Emphasis added]

The exclusion of non-qualified voters from consideration in drawing assembly districts simply does not appear to be a "minor deviation ... free from any taint of .. discrimination" from "a plan of population-based representation." After all, such a plan specifically discriminates against the disenfranchised - and implicitly discriminates against various classes of the disenfranchised, including children and non-citizens. And that is without taking into account people who voluntarily exclude themselves from the franchise for religious reasons, people who just don't bother to register, or those so severely retarded that they don't know how to register. So it doesn’t seem as though such districts can be drawn.

But the “one person – one vote” rules does allow moving the districts’ common boundary so that each district has the same number of people, but the first has three times as many qualified voters as the second. In that case, as pointed out in previous posts, votes in the second district will have three times the weight of votes in the first district – a result which was exactly what the Supreme Court said it’s “one person – one vote rule” was supposed to correct:

“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.”

In this example, the Court’s “one person – one vote” rule creates exactly the effect it was supposed to correct. And legislatures exploit the weakness in the Court’s precedent in drawing electoral districts. Once a group of qualified voters friendly to a candidate favored by those in control of the legislature is found, the district can be “padded out” by including disenfranchised people (such as non-citizens) or groups with low turn out to meet the Court’s population test. That is, the Court’s “one person – one vote test” is being used to facilitate gerrymandering – a game in which the disenfranchised are almost literally used as pawns. Is this what the Court's fancy rhetoric was supposed to open up?

As Fritz Schranck and my prior posts have both pointed out, the Court has not attempted to justify its rule by reference to “virtual representation” of those people who either cannot or do not vote by other voting groups. That failure is one of the roots of the Court’s problem, because without some notion of "virtual representation” there is no way to bridge the gap between the Court’s rhetoric (which focuses exclusively on votes) and its rule (which focuses exclusively on population). The Court is in fact relying on “virtual representation,” but without the candor, intellectual honesty or coherence that are required. Until that foundation is supplied (if that is possible), the Court’s “equal protection” precedent, which for example the Court relied upon to settle the last Presidential election, will remain built on sand.

What courses are possible? There are several that come to mind, and many more surely exist:

The Court could explicitly admit its currently implicit reliance on its odd form of “virtual representation” and try to justify it. This does not appear to be easy – and may be a reason why the Court has not admitted what it is doing in the past.

The Court could retain its rhetoric focused on protecting the weight of votes, and restate the “one person – one vote” rule as requiring equal numbers of qualified voters in each district, rather than equal population. This rule would avoid the need to address any notion of “virtual representation” and follows naturally from the Court’s existing precedent. Nor would this rule permit invidious discrimination – since the Court’s other precedents (for example, precedent restricting race-based apportionment) would continue to apply.

The Court could retain its rhetoric, explicitly admit its currently implicit reliance on “virtual representation” and candidly analyze whether such reliance is appropriate on a group-by-group basis. For example, it does not seem a reach that children are deemed represented by adults. But are ex-felons really adequately represented by the rest of the population? Doesn’t committing a felony suggest that the felon and the rest of society do not have consistent agendas? What about non-citizens? Are they really “represented” by the rest of us? What if they are illegal immigrants? Does that make a difference? My point here is not to answer these questions. Rather, my point is that these issues are urgently and implicitly already located within the Court’s precedent – but are not being addressed because the Court will not admit what it has done. That is very dangerous – and is likely to create a disaster at the worst possible time: a divisive, hotly contested election.