Friday, April 8, 2016

Court rules unanimously on "one person one vote"

It was refreshing this week to see the frequently divided United States Supreme Court rule unanimously on a political issue — and one that involved Texas.

The lawsuit was brought by Sue Evenwel of Titus County in Northeast Texas and Edward Pfenninger of Montgomery County, just north of Houston.

But the suit was backed by conservative groups who feel big cities, which tend to be liberal and Democrat, are favored in the current system over less-populated areas that tend to be conservative and Republican.

The plaintiffs argued that the current interpretation of “one person one vote” is unfair because districts are drawn to have roughly equal overall populations.

But big cities tend to have more immigrants, children and others who are ineligible to vote.

As a result, the fewer actual voters in the big cities have more say in choosing representatives than the larger number of actual voters in rural districts.

The lawsuit dealt only with state senate districts, but had the Supreme Court found in favor of the plaintiffs, the principle would almost certainly have applied to other bodies.

The balance of state legislatures and the U.S. House of Representatives would have significantly shifted toward Republicans.

It says something about public perception of the current Supreme Court that serious observers speculated, especially before Justice Antonin Scalia’s death, that the decision might go the other way.

It would have been widely seen as a blatantly partisan decision.

In her majority opinion, Justice Ruth Bader Ginsburg looks closely at the constitutional history of the issue.

She notes that the framers of the constitution took up what she calls “a question analogous to the one at issue here: On what basis should congressional districts be allocated to States?”

The constitution provides for each state to have two senators, but it allocates the number of seats in the House of Representatives according to each state’s total population.

This despite the fact that the authors left up to the states the question of which members of the population would get to vote.

Ginsburg quoted Alexander Hamilton in supporting counting the entire population, not just eligible voters:

“There can be no truer principle than this—that every individual of the community at large has an equal right to the protection of government.”

If the plaintiff’s scheme had been in place, neither women nor most men who owned no property would have counted toward awarding seats to states.

It is likely, however, that slaves, who were considered more property than person, would still have been counted as 3/5.

Speaking of slaves, the issue came up again in the framing of the 14th Amendment, the post-Civil War amendment enshrining equal protection under the law.

Section 2 of the amendment specifically provides that Congressional seats will be apportioned to states “according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

Northern Republicans, worried that former slaves would be disenfranchised, did insert language reducing representation if the vote is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States ….”

But that provision was never enforced.

Radical Republican Thaddeus Stevens in 1865 introduced a separate amendment that would have allocated House seats to states “according to their respective legal voters,” and would have required a separate census of legal voters.

But that amendment failed.

Ginsburg notes that supporters used the same arguments as those presented by plaintiffs in the current case.

Some who sided with the plaintiffs are celebrating the fact that while the Supreme Court unanimously decided not to overturn the system used in all 50 states, it did not say states couldn’t draw districts based only on eligible voters, as the plaintiffs want.

The fact is, the court simply decided not to address that question.

A fair reading of Ginsburg’s decision would not offer hope.

Then there’s the small matter of the Texas Constitution.

It says each legislative district shall be apportioned “by dividing the population of the State, as ascertained by the most recent United States census….” That’s the entire population.

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