Cooper: 'One person, one vote' when it suits

Cooper: 'One person, one vote' when it suits

April 10th, 2016 by Clint Cooper in Opinion Free Press

U.S. Supreme Court Justice Ruth Bader Ginsburg wrote for the unanimous majority in a recent Texas "one person, one vote" case but left open the possibility of other methods of state apportionment.


The United States Supreme Court unanimously agreed to do nothing last week, and that could be a hopeful sign.

The high court ruled that states, as they have for more than 50 years, would continue to apportion legislative seats according to total population rather than to citizens or voters, turning back a lawsuit that wanted to change the practice.

But it did not close the door on other ways to apportion districts, leading to the possibility that the issue might be reconsidered if a state or states decided to change the way in which they did things.

As it stands today, and has stood since the 1964 Reynolds v. Sims Supreme Court decision, state houses in legislatures are apportioned by population — "one person, one vote" — and not by geographic differences (such as counties).

The Reynolds case, which came out of Jefferson County (Birmingham), Ala., sought to correct the disparity that the number of voters per Alabama state senator ranged widely from one district to another. In that case, urban counties were often drastically underrepresented.

In last week's case, the plaintiff out of Texas in Evenwel v. Abbott wanted to show that rural counties were now drastically underrepresented because of the influx into urban areas of illegal immigrants and children, who can't vote.

Justice Ruth Bader Ginsburg, writing for the court, said since no state had chosen to apportion its legislative districts other than "one person, one vote," "we need not and do not resolve" whether such practices would be constitutional.

Two justices, Samuel Alito and Clarence Thomas, wrote separately from Ginsburg, Alito saying the use of total population in apportionment shouldn't be consider sacrosanct and would be debated "when we have before us a state districting plan." Thomas wrote that the use of total population, in fact, wasn't sacrosanct.

"The majority has failed to provide a sound basis for the one-person, one-vote principle because no such basis exists," he wrote. States should have "significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government."

Not surprisingly, there is a political component to the argument.

In Reynolds v. Sims, the "one person, one vote" decision favored urban-dwelling Democrats, especially blacks, who tend to vote as a bloc. And in recent years, the porous Southern border has allowed the influx of some 11 million illegal immigrants, swelling further the urban-dwelling population.

In the Texas case, on the other hand, a change to "one person, one vote" ruling would favor rural-dwelling voters, who are more apt to vote Republican.

Ginsburg, in upholding the current system (for now), said even those who can't vote "have an important stake in many policy debates — children, their parents, even their grandparents, for example, have a stake in a strong public-education system — and in receiving constituent services. Total population apportionment promotes equitable and effective representation."

With last week's decision and with a 2015 Supreme Court decision in which it threw out a lower court's ruling that upheld a Republican-drawn legislative map in Alabama, the high court has seemed interested in tilting the "one person, one vote" decision toward minorities.

In the Alabama case, for example, the GOP had drawn the state's redistricting plan with one eye focused hard on the Voting Rights Act and its insistence on protected districts for minorities. The result of such gerrymandering — approved by the Obama Justice Department — protected the minority districts in question, which overwhelmingly vote for Democrats, but left the surrounding voting districts with more whites, who usually vote for Republicans.

But the minorities in the affected districts didn't like the subsequent election results, which assured "their" seats but saw them get little other representation.

Justice Stephen Breyer, in writing for the court, said the GOP properly applied "one person, one vote" but did so to the exclusion of all other criteria. Using the example of a 70-percent majority black district, he suggested a redistricting plan that would back off the percentage to 65 percent.

With that type of vague suggestion and the knowledge that "one person, one vote" isn't deemed as important in one case as it is in another, it is difficult for Republican-apportioning states to know just exactly what will please the court.

As the late Justice Antonin Scalia wrote in his dissent of the Alabama case, the majority opinion was "a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the state in managing its own elections."

Fortunately, in last week's case, the court didn't attempt to reshape all apportionment rules, which provides hope that a fairness between "one person, one vote" and a state's eligible voters might one day be worked out.

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