One Person, But Only 2/3 of a Vote

8 Dec 2015 | Author: | No comments yet »

‘One person, one vote’ case could upend politics.

In a Texas case challenging the traditional view of “one person, one vote,” the Supreme Court will hear oral arguments Tuesday on the way states and localities draw district lines. Last month, all three women made history, becoming the first individuals of Hispanic heritage to win election to the seven-member city council traditionally dominated by white conservatives.On the other side are conservative groups who want tens of millions of children, non-citizens, prisoners, ex-felons and people with intellectual disabilities excluded from the count because they cannot vote.

While their victories sparked celebrations in some parts of town, the achievement came after years of bitter litigation that prompted the redrafting of voting districts and required three Anglo council members to stand for reelection or leave office halfway through their four-year terms. In 2013, the Court avoided ruling in the case, which was assembled with the help of anti-affirmative action activist Edward Blum, by vacating a ruling by the Fifth US Circuit Court of Appeals and sending the case back to a federal appeals court. If those challengers to Texas’ state Senate districts win, many state and municipal governments from coast to coast would be sent back to the drawing boards. Abbott, the plaintiffs want Texas to count only voters or citizens eligible to vote in determining state Senate lines instead of the longtime standard of counting the entire population.

But what most Americans probably don’t know is that one person, one vote in the United States in 2015 doesn’t necessarily mean that everyone’s vote will be given the same weight. A decision to exclude noncitizens and people under 18 would have a dramatic impact on districts with large Latino populations and would affect every level of state and local government.

Sue Evenwel and Edward Pfenninger highlighted the difference in eligible voters in the mainly rural districts outside Houston, Texas, where they live, and those in a downtown Houston district with equal population, but at least 170,000 fewer eligible voters. In practice, the relative strength of one citizen’s vote in relation to any other citizen’s vote depends on how election districts are drawn and populated.

Sue Evenwel lives in Titus County in northeast Texas, and lawyers for co-plaintiff Edward Pfenninger of Montgomery County and her maintain that their Senate districts have far more registered voters than other urban-dominated areas do. “So all the districts have about the same number of residents, but they have different numbers of citizens and different numbers of eligible voters,” legal expert Andrew Grossman said in a speech at the conservative Heritage Foundation. Although some anticipate that the case will be decided on details, such as why Fisher was rejected or how campus diversity would be impacted by a new admissions policy, the justices’ willingness to reexamine the case may indicate their diverging views of how to understand equality and diversity in an era when understandings of “diversity” are in flux.

Evenwel and Pfenninger said the state Senate redistricting map signed into law in 2013 did not equally distribute voters, improperly inflating the voting power of urban areas and giving them more sway in dictating the outcome of elections. That’s because whoever is drawing the voting districts can rig the boundaries in a certain way to dilute a person’s vote in one district while enhancing voting power in another district. The total population is then divided into districts that, under the “one-person, one-vote” precedent, are supposed to have roughly equal populations. Americans decrying “reverse racism” claim that diversity policies are not truly “colorblind,” while affirmative action advocates claim the call to “colorblindness” misunderstands the purpose and history of policies meant to level the playing field.

Conservative groups have said the current system distorts the rights of non-voters in the democratic process, particularly in states such as California, Texas and Florida, where larger numbers of non-citizen immigrants live and are counted in the census figures. It is an effective way to boost the chances that a Republican or a Democrat will win, or make it easier for minority voters to elect candidates of their choice. Democrats would lose out. “Every legislative map in the country would become presumptively unconstitutional,” says Michael Li, a lawyer at the Brennan Center for Justice at New York University School of Law, causing “upheaval … from Vermont to California.” Congressional lines would not be affected by the court’s decision, at least until another lawsuit challenging them is filed. In 2008, Abigail Fisher was a cello-playing, high-achieving suburban high school student who wanted to follow in her father and sister’s footsteps to the University of Texas’ (UT) flagship Austin campus. The Constitution requires that House seats be apportioned among states based on total population — a process by which Texas gained four seats after the 2010 Census.

Those challenging the Texas system argue that the large numbers of noncitizens in the state can dilute or enhance the power of individual voters from district to district. Under Texas law, the UT system guarantees admission to in-state students in the top 10 percent of their class, a highly competitive system that advocates say helps guarantee a fair shot for students at under-resourced schools, many of them black and Hispanic, whose educational opportunities wouldn’t let them compete with wealthy suburban students purely on the basis of test scores and easily-quantifiable factors.

Texas maintains that it should be able to choose the option of using voter criteria or population based on earlier court rulings, even if it’s opted for population as the basis. The case could reshape electoral maps nationwide by addressing the underlying question of whether those who can’t vote should continue to be included in the drawing of districts. “Instances of extreme electoral imbalance are not confined to Texas,” writes Francis Floyd of the Seattle law firm Floyd, Pflueger & Ringer in a friend of the court brief filed on behalf of Yakima in the Texas case. “This issue will occur with increasing regularity due to the combination of shifting demographic trends and the efforts of organizations like the ACLU using litigation to impose single-member districts on jurisdictions,” said Mr.

With the U.S. presidential election less than a year away, the backdrop of voting rights has created a political battle between Republicans and Democrats. But liberal groups like the American Civil Liberties Union have joined Attorney General Ken Paxton’s office in arguing that the justices should reject those claims. The case is the brainchild of Edward Blum, director of the Project on Fair Representation, who has made a practice in recent years of challenging racial and ethnic preferences in voting and higher education. To fill the remaining eight percent of seats, admissions officers considered the total of two scores, one for a student’s strictly academic accomplishments, and one for a “personal achievement index,” which includes criteria such as admissions essays, extracurriculars, and socioeconomic factors like native language, race, and social class. The constitution protects, and lawmakers represent, everyone in a state, including foreign citizens, felons, children and others who may be ineligible to vote, they argue.

It is devastating for our democracy and it must stop,” Hinojosa said. “We have come a long way as nation from the dark days when slaves were only recognized as three-fifths persons for the purpose of appointment to Congress. Marc Veasey, D-Fort Worth, told McClatchy. “For Tarrant County in particular, this could mean that over 100,000 noncitizens would no longer be counted when assigning representation, according to a 2015 Migration Policy Institute report, and 27 percent of the county would be discounted due to be their age, according to the 2014 U.S. Now with an estimated 11 million unauthorized immigrants in the US, total population in many jurisdictions no longer tracks citizen-voter demographics. There are also court challenges in several states to enact stricter voter identification laws that critics say unfairly target minority voters inclined to vote for Democratic candidates. “In public opinion surveys, we found the Democrats support reinstating Section 5 of the Voting Rights Act,” he said. “On the other hand, Republicans were largely opposed the enforcement provision. “Voting rights cases have become a partisan issue like so many other things, and now we see the party polarization like we see in so many other areas in politics.”

As a state school, UT is bound to the Constitution’s equal-protection clause, which Fisher’s team argues that race-conscious admissions policies violate. Texas Solicitor General Scott Keller said in an interview in Washington said Texas’ position – namely that the Constitution doesn’t require it to change it methods – is a conservative one, and one that asks the justices to break little new ground.

In many other states, the rules could change but require no immediate moving of district lines because the results from using total or voter populations are not significant. Other public universities are watching the case closely, as are private schools who receive federal funding, many of which insist on the necessity of their race-conscious policies and hope that Fisher v. What this discrepancy ultimately means is that it can take significantly fewer votes to elect a state senator in certain districts in Texas than in others. Civil rights groups contend the change from total to voter population would discriminate against minorities, who often face obstacles to voting, have more children, or lack citizenship. And he and other Democrats point to the person instrumental in bringing the case, Ed Blum, a conservative activist who was also a central figure in Fisher v.

In addition, they say, it’s simply hard to do: While the Census Bureau provides relatively accurate population estimates every decade, there is no reliable federal data for eligible voters. Citizens for Community Action, the Justices wrote in 1977 that “[I]n voting for their legislators, all citizens have an equal interest in representative democracy” and “the concept of equal protection therefore requires that their votes be given equal weight.” The Court has also acknowledged that when total population and the number of eligible voters diverge, representation should follow the eligible voters. Plaintiff Sue Evenwel, a member of the Titus County Republican Party executive committee, said she brought the case because she feels it’s unfair that her vote counts less than those in other districts. “There are great many people in Texas who are not eligible to vote,” said Evenwel. “This isn’t about them as individuals.

Texas wants flexibility to choose its method of drawing districts, but the Obama administration goes further and argues that the court should not give states such flexibility. “Adopting Texas’s hypothetical approach risks rendering residents of this country who are ineligible, unwilling, or unable to vote as invisible or irrelevant to our system of representative democracy,” the solicitor general’s office argues in its brief. With a modest SAT score of 1180 out of 1600, Fisher’s credentials were most likely not up to snuff for Texas’ flagship school, regardless of her race, as ProPublica reported in 2013. Provisional admission was offered to roughly 50 students with grades and scores lower than hers, but the vast majority were white, and 168 minority students with equal or better grades were also rejected.

Fisher was offered admission as a sophomore, if she could maintain a 3.2 grade point average at another Texas university her freshman year, but turned it down in favor of Louisiana State University. That could mean Dallas-area senators, for instance, could be left representing hundreds of thousands of more constituents than, say, Evenhel’s own senator, Sen. Ultimately, it means that a voter in the district with fewer voting age citizens wields voting power that is one and a half times that of a voter in District 1. Redrawing lines to exclude various groups from the head count based on age, race, ethnicity and intellectual disability could lead to more lawsuits, she says.

But today, the concept that laws must be “colorblind” is often used to argue against programs meant to help minorities, with anti-affirmative action voices arguing that considering race at all amounts to racism. William Leiter, professor emeritus at California State University, Long Beach, also says that equal opportunity may have given way to unequal preference. “The diversity theory emphasizes that groups are different and they bring different capacities to the academic arena,” he told the Wall Street Journal. “That’s a major departure from traditional civil rights law; the 1964 Civil Rights Act said there were not supposed to be any differences between the treatment of blacks, whites, and anybody else.” Critics say that ignores the historical context of the amendment, and the original need for “colorblindness” itself, which was intended to help groups who experienced present or past discrimination overcome those disadvantages. Others have offered a darker explanation: that the city’s Anglo residents were voting as a bloc to systematically deprive Latinos of political power.

In that case the high court invalidated a voting district plan for the Alabama state senate in which instead of apportioning the seats equally across the state by population, it assigned one senator to each county. According to researchers from Tufts University and the Harvard Business School, white Americans now feel that they face more discrimination they believe black Americans do. “Whites See Racism as a Zero-sum Game that They Are Now Losing,” the authors titled their paper. US District Judge Thomas Rice, an appointee of President Obama, agreed and ordered the city to create seven city council districts, adopting in total the ACLU’s proposed districts.

Conservative judges often claim original intent as a value, in opposition to allegedly “activist” judges who interpret the Constitution through a modern-day lens. The decision says that state legislative districts “must be apportioned on a population basis” in which states must make an honest and good faith effort to fashion districts “as nearly of equal population as is practicable.” The decision notes: “Whatever the means of accomplishment, the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the state,” the decision says. The issue is whether the Justices are going to apply their precedents to new circumstances, or are they going to implicitly overturn Reynolds because it’s too politically inconvenient?

They include Councilman Ettl and Mayor Micah Cawley, who was reelected to a four-year-term in 2013, winning 11,605 votes – 95 percent of ballots cast under the old city-wide election system. He said the judicial-ordered election system produced uneven results in last month’s election. “It is troublesome in a city of our size where you can get a few hundred votes and get elected to the city council,” he said. In his Reynolds decision, Chief Justice Warren mentions three potential populations that might be used by states to apportion legislative districts: “residents, or citizens, or voters.” Nonetheless, legal precedents and interpretations since that 1964 landmark case consistently reflect a total population approach to equalizing voting districts.

Asked what advice she would offer to other cities with a significant Latino population, Mendez says to make sure all residents receive fair representation. “I would say if [city officials] don’t want to be sued, they should look at their voting system and whether it is representative of their constituents,” she said. Ettl says that cities must consciously reach out to minority residents and recruit quality minority candidates. “But I wouldn’t rig the deck and draw the district lines based on race.”

He says in addition to using total population, states are also free to apportion districts based on the voting-eligible population, as requested by the Texas challengers. The interest at stake is not equality among voters, or the relative weight of each vote, they say, but numerical equivalence among all persons being represented. “[The voter equality position] is in tension with this court’s recognition that elected officials are responsible to their entire constituency, not just to those who can or do vote,” Verrilli wrote in his brief. But some demographers counter that surveys that include voting age population are accurate enough for the government to use them to distribute billions in government assistance.

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