Academic journal article The Yale Law Journal

Weightless Votes

Academic journal article The Yale Law Journal

Weightless Votes

Article excerpt








Equality is a powerful idea, and nowhere more so than in the political sphere. It was the power of an idea of political equality that led the Supreme Court to conclude that it had no choice but to enter the "political thicket" (1) and regulate the way district lines of all kinds are drawn across the United States. The Court's sweeping intervention in this sphere has been enduringly popular, in part because of its straightforwardness. Anyone can understand a rule that says each district must contain an equal number of persons.

But equality is rarely so simple. Political equality in particular is a subtle, multilayered idea. In one of the most striking developments of the present redistricting cycle, the equipopulation rule is now under significant fire from litigants who come bearing arguments that are also couched in terms of a conception of political equality. These litigants argue that equality--and therefore, the Constitution--requires districts with equal numbers of eligible voters, not equal numbers of persons.

The difference is enormous. Certain districts, such as a predominantly Hispanic city council district in Irving, Texas, have the same total population as other districts but only half the citizen voting age population (CVAP). (2) A conservative impact litigation firm brought a lawsuit challenging that particular district in 2010, alleging that the difference in CVAP harmed the voters of the other five districts by diluting their votes. (3) The real prize here is much larger than the government of a mid-sized Texas city. Today, line-drawers across the nation rely almost uniformly on total population, an approach that current Supreme Court precedents neither require nor prohibit, (4) but that has become the de facto national policy. (5) A shift from total population to eligible voters or CVAP (6) would shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.

Adjudicating this conflict may force courts to confront a deep question they have long avoided. What is one person, one vote really about? What form(s) of political equality does it protect? (7)

Proponents of switching from total population to eligible voters or CVAP have a straightforward answer-and one with an outstanding pedigree. In Reynolds v. Sims, the 1964 case that interpreted the Equal Protection Clause to require the one person, one vote rule, the Court held that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." (8) In Wesberry v. Sanders, (9) which likewise imposed the one person, one vote rule on congressional redistricting on the basis of Article I, Section 2's requirement that the House be elected "by the People of the several States," (10) the Court similarly framed numerical malapportionment as debasing the "weight" (11) or sometimes the "worth" (12) of individual voters' votes. (13) The Court conceptualized the debasement of the weight of a vote as an individual injury, distinct from but analogous to disenfranchisement. This was a clever move. By focusing on individuals, the Court at a pivotal moment sidestepped the objection that it was intervening in an unprecedented way to restructure American democracy. Avoiding the Guaranty Clause, (14) the Court told an individual rights story. (15) Thus, when litigants today claim that one person, one vote protects the weight of individual votes, they are making an argument as old as one person, one vote itself, using language that courts know well and often cite.

The trouble is this: the closer one examines this argument about the weight of individual votes, the thinner and more insubstantial it turns out to be. …

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