What does "one person, one vote" mean anyway?

by Ugh

Today teh SCOTUS granted cert in a case that may address the question of how to measure when the Constitutional standard of "one person, one vote" for drawing Congressional districts is satisfied.  (some SCOTUSblog coverage here)

The "one person, one vote" standard stems from Reynolds v. Sims, striking down unequally populated Congressional districts in...Alabama (surprise!).  But the Court did not state what the proper measure should be, rather just that it be reasonable.  Thus, as SCOTUSblog notes:

The usual choice considered by legislatures is to make districts more or less equal by dividing up shares of the state’s total population, or, as an alternative, to draw lines based upon some measure of the voting members of the population — such as the numbers actually registered to vote.

The new case argues that if a State draws districts based on population, but that results in a sufficient disparity in terms of voting age population (or perhaps registered or even eligible voters), then population cannot be used.  For example, if if 80% of District A's voters residents were 18 years old or older, but only 60% of District B's voters residents were of that age, those district boundaries would be unconstitutional because the voting power of those in District A is less than those in District B.  

Or, say, if 50% of District A's population is made up of "eligible voters" and only 35% of District B - say because the latter has a large population of undocumented immigrants - then this is equally unconstitutional.

So, you can see where this may be going.  Unsurprisingly, behind this litigation, is "The Project on Fair Representation is funding the lawsuit filed by two Texas residents. The group opposes racial and ethnic classifications and has been behind Supreme Court challenges to affirmative action and the federal Voting Rights Act."

Not that that makes their legal argument any less persuasive.  In fact, it does seem kind of unfair if my district has 300,000 eligible voters and the next district over only has 200,000, even if the population of each is the same.  On the other hand, I'm not sure drawing districts based on "eligible" voters or voting age population is any fairer, since both criteria can and will change over time.  Population at least seems less susceptible to manipulation.  

But I guess we'll find out sometime between now and June 2016, hooray!

Update:  Just to note that this challenge is to state legislative districts, not Congressional ones, but I'm not sure it wouldn't apply to the latter.

Comments

[byomtov]

For example, if if 80% of District A's voters were 18 years old or older, but only 60% of District B's voters were of that age, those district boundaries would be unconstitutional because the voting power of those in District A is less than those in District B.

I don't think this came out the way you intended.

[thompson]

I don't think this came out the way you intended.

I think the wording is right. Two equal population districts, but A has more voters. The vote of any individual of A has less impact than the vote of any individual in B.

Frex, if each district had 5 people in it, A would have 4 voters and B would have 3 voters in it. A voter in B represents 33% of the vote, while a voter in A represents only 25%.

[byomtov]

I think it should be "80% of District A's residents," not "voters." Presumably 100% of voters in both A are 18 or older.

[byomtov]

"both A and B."

Hoist on my own petard.

[thompson]

Ah, you are correct. I totally missed that.

[wj]

I wonder that nobody has parsed the numbers a third way. The case looks at
a) residents
b) voters (registered, eligible, etc.).

But why is nobody arguing that what should matter is citizens? When drawing "equal" sized districts, count everybody, regardless of age or registration -- but only if they are actually citizens. Nobody else.

Makes at least as much sense as the other two.

[Ugh]

Thompson understood what I meant, but I didn't state it correctly as byomtov notes. Fixed it, I hope!

[Ugh]

wj - citizens would presumably be an option as well. But mass verification of that status is sure to be problematic from a number of standpoints, left and right.

[wj]

Ugh, how would it be much harder than "eligible voters"? Which, after all, is just citizens who are old enough to vote. And eligible voters appears to be one of their options....

[Ugh]

Oh sure, verifying eligible voters may be just as problematic, sometimes for the same reasons.

[Ugh]

I guess the broader question is: what are we trying to accomplish with single member congressional districts when it comes to "one person, one vote." Especially when we start out allocating Congressional districts among the several states according to population, and not some subset thereof.

Does it not make sense then to allocate Congressional districts within a state based on population? Or does "one person, one vote" require a switch?

CJ Warren says in his majority opinion in Reynolds, "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests." But do we apportion based on people or voters, Mr. Chief Justice?

[wj]

If we just make everybody citizens, so they can all vote, then the problem goes away....
/sarcasm

[Snarki, child of Loki]

You beat me to it wj, but I'm not sure that it's really such a bad idea. Conjecturally, sure. Evidence?

Well, there's always the "under 12 voters, demanding free ice cream in school" problem, but in the great scheme of things, that's not so bad.

[Tony P.]

Just for yuks, suppose that US Representatives each had as many votes in the House as each of them received in their last election.

Would it still pay to gerrymander congressional districts?

Would it still pay to pass voter ID laws?

Would long-term incumbents be advantaged or disadvantaged?

What if the rule was "as many votes as were cast in their last election? Or if the rule was "as many votes as the member's percentage of the total vote in their last election"? Would the answers change to any of the above?

--TP

[Tsotate]

I thought the Supreme Court approach to "one person, one vote" has always been "Scalia is one person".

[CharlesWT]

Or, say, if 50% of District A's population is made up of "eligible voters" and only 35% of District B - say because the latter has a large population of undocumented immigrants - then this is equally unconstitutional.

Also, some districts may enough people with felony convictions as to create a significant imbalance.

[wj]

Especially if the ever-increasing prison populations are clustered together. Which, given that few people want to live near a prison, seems like a politically preferably strategy.

So you could end up with an entire district whose population is mostly convicted felons. And whose voting population is mostly prison guards and others whose livelyhood depends on keeping up the prison population.

[Hartmut]

Has the constitutionality of losing the right to vote as a result of a felony conviction (temporary or for life) ever been dealt with by SCOTUS? Iirc the Constitution itself is silent on the topic.

[TheRadicalModerate]

ugh--

Districting is based on census data, not on the kinds of identification and authentication that are used to register or vote. The Census (and the ACS, which covers about 1% of the country every year), both collect age and citizenship status info, so filtering by citizenship and/or age is easy. However, just searching through the ACS data dictionary, the word "vote" does not appear, so filtering based on voter registration is probably quite difficult.

[CharlesWT]

Felony Disenfranchisement - Constitutionality

[Hartmut]

Thanks, CharlesWT!

Why not hit multiple birds with one stone and introduce the venerable three class franchise. Would that not immediately put a stop to the tax cutting mania since it would be an incentive to pay high rates of income tax? Plus, politicians could at last become honest because they now would really represent their actual voters and the whole legal bribery system would become superfluous. It would also be an incentive for the 1% not to cluster together but to spread all over the country in order not to dilute their voting power. Since their voting district would have to be the one where they pay taxes, it would benefit a lot of poor areas whose infrastructure etc. depends on the local tax base. At last the system would resemble the denied reality we already have (i.e.for the legislative practice not much would change) but millions would benefit. Face it: one-man-one-vote is fair on paper but has been so severly undermined that it would be an improvement to drop the pretense.

[russell]

the text of the 14th A appears to argue for persons, full stop.

the requirement to have at least one rep per state also creates significant disparities in the ratio of reps to people, and/or reps to voters. is that principle also up for reconsideration?

[thompson]

the text of the 14th A appears to argue for persons, full stop.

This may just be the continuing saga of 'thompson can't read' but I don't think that's correct, at least wrt the case at hand.

The text of 14A that I think you're referring to is :'Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.'

That, I think, doesn't answer two key questions:
(1) how are they apportioned within each state.
(2) how does this work with state legislatures

Note, I'm not sure about either of those points. It's possible they are answered by previous cases or only exist due to my misreading. But at my approximation, it doesn't seem like the 14A applies.

[thompson]

the requirement to have at least one rep per state also creates significant disparities in the ratio of reps to people, and/or reps to voters.

This seems as good a time as any to say we need to decrease the number of people per rep to around 50k. I'd rather have a representative that's one of 6k or 7k that I could actually talk to, rather than one of 435 that has close to a million constituents.

[cleek]

This seems as good a time as any to say we need to decrease the number of people per rep to around 50k

1 : 50k would be more representation than most people get via their state legislature.

(not that i'm opposed)

[thompson]

50k would be more representation than most people get via their state legislature.

Well, I think we also need larger state houses. Possibly a more relevant point considering the OP. Mostly, I'm troubled by a representative branch of government that isn't accessible to the majority of voters.

I'd also call for a reduction in individual staffers and an increase in a larger pool of nonpartisan offices. I think it would be great, for example, if their was a 'congressional science office' in addition to the CBO.

[wj]

This seems as good a time as any to say we need to decrease the number of people per rep to around 50k

Which will require a substantial redesign of the US Capitol, in order to accomodate the increased numbers. Since the last substantial upgrade for those purposes was over a century ago, that is probably not a bad thing -- it's far easier to, for example, string fiber-optic cable around the place if you aren't having to try to do it under the covers.

I wonder where we would have the Congress meet while the building was being replaced....

[Hartmut]

Unfortunately a 50k ratio would mean (if I am not mistaken) about 6400 congresscritters. That would almost require them to vote for a governing assembly themselves. "The gentleman representing the 20 representatives of NE Texas has the floor!" ;-)
Hm, that could revive the old idea of splitting the US administratively into 4-5 parts that would for the most part be autonomous but would have regular reconciliation meetings concerning topics relevant to all. Hopefully the Old South would then rise again and quit, leaving a governable rump US.

[Ugh]

It might be better to just abolish the Senate and add the 100 members to the House.

[thompson]

Unfortunately a 50k ratio would mean (if I am not mistaken) about 6400 congresscritters.

It sure would, but I don't think that's unfortunate. Except for wj's point about the size of the capital. But really, should our system of governance be determined by building size? :)

That would almost require them to vote for a governing assembly themselves.

Eh, I don't think it would be that much more complex than the current system with speakers, whips, leaders, committees, chairs, ranking members, caucuses, etc etc.

Really, you'd probably get likeminded or regionally associated reps forming caucuses, the leaders of which would probably hold a little more sway and camera time. Just like they do now.

I wonder where we would have the Congress meet while the building was being replaced....

National mall? They could use the fresh air.

[Snarki, child of Loki]

"I think it would be great, for example, if their was a 'congressional science office' in addition to the CBO."

So it would. IIRC, there used to be one, until it was abolished. One guess as to the political party that did that.

BTW, some state governments have large numbers of reps, some smaller. There's no sign that having a larger number of reps is actually better, because while each rep is answerable to a fewer number of voters, the larger number of reps allows them to dilute any responsibility for their actions.

Frex, the opinion polls that have lots of favorable opinions for people's own rep, but massively unfavorable for the institution as a whole.

[thompson]

IIRC, there used to be one, until it was abolished.

Yeah, the OTA. You see people bringing it up occasionally, but reinstating it hasn't really built up steam.

[Matt McIrvin]

Changing a state's representation in the Senate without the consent of the state is actually the one and only thing the Constitution explicitly forbids being done by amendment.

Of course, there's the interesting question of whether that ban extends to amending the ban itself; if it doesn't, then I suppose it's completely moot, but then there's the question of what it ever meant in the first place.

Anyway, if that passage means anything, it suggests that an amendment abolishing or greatly reforming the Senate is not going to happen.

[wj]

It's actually an interesting question why people generally approve of their own member of Congress, while holding Congress collectively in extremely low regard.

I can see two possible answers:
1) we really do have extremely different views of what Congress ought to do. And when looking at Congress as a whole, focus on the things that it does that we dislike.
2) members of Congress do well when dealing with things which impact their constituents immediately and directly. But when dealing with matters which are mostly of concern to the country overall, they do far less well.

Anybody got a third possibility?

[hairshirthedonist]

A third and probably simple-minded possibility is that the people in a given district elected their representative, but not any of the others.

(Call me Captain Obvious, but it doesn't make me wrong.)

[cleek]

3) we (or at least 50%+1) voted for our rep. so he/she is a reflection of our obvious intelligence and overall excellence. all those other reps were voted-in by the idiots, moochers and criminals of North Haverbrook and Shelbyville.

[hairshirthedonist]

cleek is Colonel Obvious, I guess.

[CRHayne]

IIRC Washington thought the number should be 20K, but compromised on 30K.

In a small group, someone seeking votes has to be persuasive on a one-to-one level. In a large group one might need to be a decent public speaker. At 700K one needs a whole other set of skills, number one of which is getting rich people to give you money to spend on glossy advertising.

[Snarki, child of Loki]

If you get to be Captain Obvious, then I will be Major Snarkage, and I outrank you. At least until count, aka General Mayhem, shows up and puts us both in our place.

While individual pols can (and will) lie about what good they do and what bad they don't do, the congress as a whole can't easily get away with that. Bills pass, or they don't. Only political wonks keep track of who voted on what.

[russell]

But at my approximation, it doesn't seem like the 14A applies.

If I understand correctly (never guaranteed to be so), the case is being brought as an equal protection issue. And, the second para of the 14A specifically addresses the relationship of House reps to population, and how that population should be counted. So, the 14th A seemed relevant.

I don't think it applies to state legislatures, I'm not sure that states have to meet the federal requirements for state-level elections. Again, if I'm not mistaken, many states use different districting schemes for state and federal offices.

As far as the number of reps, I think you might be able to double the headcount and still get stuff done. If you get into the thousands, IMO it would just get nutty.

Or, nuttier.

[bobbyp]

CBO: Bear in mind that the studies cranked out by CBO, if not explicitly called for by statute, are explicitly commissioned by the Congresscritters who can establish the assumptions and parameters that have to be followed. So sometimes you get garbage in-garbage out.

What if we expanded the number of senators from each state from 2 to 50? Would there be a "law of large numbers" effect that would work to dilute the current conservative bias of that institution?

[thompson]

So, the 14th A seemed relevant.

Sorry, should have been more specific. I'm under the impression you're arguing the 14A states that it must be done by population, due to the use of 'persons'.

If that impression is correct, I think you are incorrect, because the relevant usage of persons is "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

Which implies to me, the number of reps a state gets is based on their overall population, but I don't think it clearly states that how any individual state divvies up districts must be based on the number of persons.

In other words, I don't think the 14A prevents a state drawing districts with unequal numbers of persons, just that states have to be allocated reps based on the numbers of persons in that state.

I could be wrong, that's just my reading. I would agree, equal protection likely plays a role in this case.

I don't think it applies to state legislatures

The 14A applies to state races in that it says: "But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."

Which, again based on my limited understanding, reduces apportionment if voting is blocked, including in state elections.

[cleek]

interestingly, Thirty-thousand.org advocates for districts of 50,000.

they even gt into the fact that it would cost "an additional two billion dollars" per year to pay and provide office space for the 6,000 reps.

[Countme-In]

Kevin Drum weighs in:

http://www.motherjones.com/kevin-drum/2015/05/republicans-find-yet-another-ingenious-way-suppress-democratic-votes

It means more power for white districts who have fewer children (again with the FOX) and less power for cities and you know who, probably you.

It would encourage advantaged lawmakers to continue the mass jailing of as many blacks and Hispanics required to keep them from registering to vote.

I recommend hurled lashings of cream pie and fun-filled mandatory ultrasounds (wallet-sized photos for the entire family) for the two Texas residents who filed the suit and the same for Fair Representation for Conservatives Only.

It's the very least we can do.

[cleek]

and think of the glorious insanity of the district maps if we told the gerrymandering machine to create thousands and thousands more districts !

if we were to get down to 30K or so voters per rep, the gerrymanderers would nearly have incentive to work at the level of individual street addresses. Manhattan would produce two reps per square mile. maybe maps would have to go into 3D to accommodate large apartment buildings - first 30 floor in the 2033rd district, all the rest in the 2034th.

[Countme-In]

Is Thirty-thousand.org calling as well for bunkhouses for the thousands-more freeloaders, mostly conservatives, who will be milking the taxpayers for rent-free lodging?

http://blogs.rollcall.com/hawkings/pay-freeze-era-living-house-rent-free-ads/?dcz=

While homeless families and the renting poor are defunded at the federal level, these unsprayed bedbugs, most of them millionaires, are forcing the underpaid Capitol Hill housekeeping staff to tidy up whatever unmentionable leakage these beauty queens deposit on the office furniture during their conscienceless, but subsidized welfare slumber.

Are any of the rest of us permitted to sleep in our offices?

Well, except during working hours.

[Hartmut]

A clear case for mandatory hangmats and strict residency. Critters have to either be in their districts or in their office or on their direct way between the two. Any detours are forbidden, in partciular those to donor provided resorts etc. They may only leave their office for official business of Congress, i.a. attending sessions and the like. No leaving the critter ghetto without special permit (which is to be given only under exceptional circumstances). They are there to serve the people, nothing else.

[russell]

In other words, I don't think the 14A prevents a state drawing districts with unequal numbers of persons

I follow you now. Yes, I think you are correct, I also do not see anything in the 14th A (or elsewhere) that mandates how states are to define their congressional districts.

My only point about feds vs state was that (if I'm not mistaken) in many states the districts for state office are the not the same as the districts for federal office.

interestingly, Thirty-thousand.org advocates for districts of 50,000.

Plus, up to 18 staffers per House rep.

I see full employment in our nation's future!

[wj]

In lots of cases, the Congressional and state legislative districts are different because there are quite different numbers of them. And not just in states which are small enough to have only one or two members of Congress.

[thompson]

My only point about feds vs state was that (if I'm not mistaken) in many states the districts for state office are the not the same as the districts for federal office.

Oh, I see. Yes, you are correct. I haven't actually lived in a state where they are the same. I haven't lived everywhere, of course, but I'd guess in general the districts are not identical.

[hairshirthedonist]

Plus, up to 18 staffers per House rep.

I see full employment in our nation's future!

I guess you haven't heard about the prototype for the congressional-staff robot.