Academic journal article Stanford Law & Policy Review

Seats, Votes, Citizens, and the One Person, One Vote Problem

Academic journal article Stanford Law & Policy Review

Seats, Votes, Citizens, and the One Person, One Vote Problem

Article excerpt

INTRODUCTION

Few passages from American court cases have become as familiar as "one person, one vote." Although we know of no authoritative count of the frequency with which that phrase has appeared in print, we suspect that it may even rival the usage of such famous passages as "to be, or not to be" (1) and something is rotten in the state of Denmark." (2) References to "one person, one vote" appear not only in legal writings concerning districting practices but have become so widely used by journalists that many lay persons recognize the meaning.

One person, one vote is the yardstick against which redistricting plans have come to be compared, but the phrase did not originate in a redistricting dispute. Justice William O. Douglas first used "one man, one vote" in the 1962 challenge to Georgia's unique county-unit system, a weighting scheme roughly modeled on the Electoral College as a means for selecting Democratic Party nominees in statewide (and some congressional) contests. (3) The system, struck down in Gray v. Sanders, awarded two, four, or six unit-votes to the candidate who received the most popular votes in a county with the number of unit-votes determined by the size of the county's population. (4) Chief Justice Earl Warren appropriated the term when applying the equal protection standard to all state legislative chambers in Reynolds v. Sims, (5) and Justice Hugo Black cited the benchmark as the standard for congressional districts in Wesberry v. Sanders. (6) The concept is now applied with rigor to local, state, and congressional district plans.

Two decades after the initial usage of one person, one vote, the Supreme Court had limited the acceptable variance from absolute equality in district populations to requiring that any deviation in the populations of a state's congressional districts be explicable. (7) Courts accepted greater deviations from the ideal district population when evaluating districting practices for state legislatures and local governments. For many years, it was thought that deviations of plus-or-minus five percentage points from the ideal would pass muster--termed a safe harbor within which the legislature might act. However when Georgia devised state legislative districting plans that tested the proposition by concentrating districts at the extremes of the plus or minus five percent deviations, a trial court rejected the plans when the state failed to provide an acceptable rationale. (8) Consequently, jurisdictions now need to explain deviations in the district populations they draw for all levels of government.

In this Article, we engage the one person, one vote issue in the context of the newest debate: citizen apportionment. This approach is the basis for a strategy for shaping our understanding of the equal protection of voting rights and affecting the apportionment of legislative power. We discuss the limitations of the original one person, one vote standard, both in terms of apportioning voting power to equalize individual votes when electing representatives, and in achieving "fair" political results. We also empirically model the variation in turnout ratios by states and show how these are associated with both citizenship factors and the application of voting rights law. We then turn to the issues of citizenship and legislative apportionment and discuss the practical and legal challenges to judicial and policy approaches to citizenship apportionment.

I. CITIZENSHIP: THE NEXT ONE PERSON DEBATE

One person, one vote has become the standard for drafting districts, but the term itself is something of a misnomer. Substantial variations in the number of persons per district exist among the states due to the apportionment formula used and the unwillingness of the House of Representatives to expand its membership over the last century. (9) The Supreme Court has turned back challenges to the congressional apportionment formula, which results in deviations across the states in excess of sixty percent. …

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