BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SJR 13 (De León)
Version: June 8, 2015
Hearing Date: June 16, 2015
Fiscal: No
Urgency: No
RD
SUBJECT
Voting: apportionment
DESCRIPTION
This measure would urge the United States Supreme Court to
uphold the federal constitutional principle of "one person, one
vote" and to not deny California's children and immigrants equal
protection under the law.
BACKGROUND
While fundamental to a republic, the U.S. Constitution does not
affirmatively declare a right to vote. Indeed, the right was
initially left to the states, which typically limited the
franchise to white male property owners. From laws expressly
limiting the franchise to white male property owners to the
imposition of poll taxes to literacy tests and grandfather
clauses, numerous methods have historically been used to deny
various categories of individuals, such as African-Americans,
women, and other minorities from having or exercising the right
to vote.
Since the end of the Civil War, however, the right has come to
be addressed under a series of amendments to the federal
Constitution: the Fifteenth Amendment (adopted in 1870 to
prohibit states from denying the right to vote on account of
"race, color, or previous condition of servitude"); the
Seventeenth Amendment (adopted in 1913 to permit the direct
election of U.S. senators); the Nineteenth Amendment (adopted in
1920 to enfranchise women); the Twenty-Fourth Amendment (adopted
in 1964 to ban poll taxes from being used to deny or abridge the
right of citizens to vote); and the Twenty-Sixth Amendment
(adopted in 1971 to prohibit the right of citizens, age 18 or
older, to vote from being denied or abridged on account of age).
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In addition to those textual provisions, beginning in the 1960s
during the Civil Rights movement, the United States Supreme
affirmatively recognized that the right to vote is a fundamental
right guaranteed and protected under the Equal Protection and
Due Process clauses of the Fourteenth Amendment, which have been
read to prevent states from enacting suffrage laws that conflict
with fundamental principles of fairness, liberty, and
self-government. (See The Oxford Companion to the Supreme Court
of the United States, Vote, Right to (2005) 2nd Ed. pp.
1052-1053; see also Chemerinsky, Constitutional Law Principles
and Policies (2011) 4th Edition, p. 893 (hereinafter
"Chemerinksy").)
While most traditional limits on voting rights such as race,
sex, education, and wealth have gradually been removed and
significant progress has been made to remove "first generation
barriers" to ballot access since the enactment of the Voting
Rights Act of 1965, "second generation barriers" that are
constructed to keep minority voters from fully participating in
the electoral process have continued in their place. (See
Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006,
Congressional Purpose and Findings, P.L. 109-246, Sec. 2(b)(1),
(2) (Jul. 27, 2006) 120 Stat. 577, see also 52 USC Sec. 10301.)
These second-generation barriers involve various vote dilution
devices such as racial gerrymandering to redraw legislative
districts to segregate the races for purposes of voting or the
use of at-large (as opposed to district-by-district) elections
to eliminate the potency of the otherwise sizable minority's
votes, that, when adopted with a discriminatory purpose, "cuts
down the right to vote as certainly as denial of access to the
ballot." (See Shelby v. Holder (2013) 133 U.S. 2612, 2635-2356
(J. Ginsburg dissenting) (internal citations omitted).) Another
method of achieving vote dilution, which is of particular
relevance to this resolution, has been by way of
malapportionment.
"Apportionment," refers to the distribution of legislative seats
among districts or allocation of the political power of a set of
constituent voters among their representatives in a governing
body. Specifically, it describes the determination, upon each
decennial census, of the number of representatives in Congress
which each state shall elect, the calculation being based upon
population. (See U.S. Const. art. I, Sec. 2.) It also
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describes the determination of the number of state or local
representatives any single electoral district shall elect, based
upon population. "Reapportionment" (or, "redistricting") is the
realignment of those legislative district boundaries to reflect
changes in population. "Malapportionment," thereby, refers to
the improper or unconstitutional apportionment (or
reapportionment) of a district - i.e. the creation of electoral
districts with unequal ratios of voters to representatives. In
other words, it constitutes vote dilution as the voters in the
more populous district have proportionately less influence in
the political process than those in small districts. For
example, if a single-member district has 10,000 voters and
another has 100,000 voters, the smaller district's voters have
ten times the influence as the larger district's, per person,
over the governing body.
Until the seminal 1962 case of Baker v. Carr (1962) 369 U.S.
186, however, the United States Supreme Court had declined to
review constitutional challenges to apportionment under the
theory that such claims constitute nonjusticiable political
questions, which, pursuant to that doctrine, are deemed to be
more appropriately resolved in the political process. In Baker,
the Court held that an Equal Protection claim challenging the
constitutionality of a State's apportionment of seats in its
legislature, on the ground that certain citizens' right to vote
was effectively impaired by virtue of vote debasement (or
dilution), presents a justiciable controversy subject to
adjudication by federal court. The following year, the Supreme
Court first coined the phrase "one person, one vote" in the case
of Gray v. Sanders (1963) 372 U.S. 368, 379-380, 381, the
principle that the Equal Protection Clause requires legislative
voting districts to have about the same population; anything
else would impermissibly dilute the voting power of those in the
more populous districts. As reasoned by the Court:
How then can one person be given twice or ten times the voting
power of another person in a statewide election merely because
he lives in a rural area or because he lives in the smallest
rural county? Once the geographical unit for which a
representative is to be chosen is designated, all who
participate in the election are to have an equal vote --
whatever their race, whatever their sex, whatever their
occupation, whatever their income, and wherever their home may
be in that geographical unit. This is required by the Equal
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Protection Clause of the Fourteenth Amendment. The concept of
"we the people" under the Constitution visualizes no preferred
class of voters but equality among those who meet the basic
qualifications. The idea that every voter is equal to every
other voter in his State, when he casts his ballot in favor of
one of several competing candidates, underlies many of our
decisions. [ . . . ]
The conception of political equality from the Declaration of
Independence, to Lincoln's Gettysburg Address, to the
Fifteenth, Seventeenth, and Nineteenth Amendments can mean
only one thing -- one person, one vote."
Following Gray, in 1964, the Supreme Court decided six cases
known as the "Reapportionment Cases," chief among them being the
landmark case of Reynolds v. Sims (1964) 377 U.S. 533. In
Reynolds, the Court held the apportionment of Alabama's
legislature unconstitutional and ordered reapportionment
consistent with the one person, one vote principle. As
articulated in Reynolds, the only permissible basis for drawing
districts under the Equal Protection Clause-for both houses of a
bicameral state legislature-is population, not geographical
area. (Id. at 568.) The Court regarded the dilution or
debasement of a citizen's fundamental right to vote as much a
suffrage issue as prohibiting the free exercise of franchise and
reasoned that any substantial disparity in the population of
legislative districts has the same effect as allotting a
different number of votes to different individuals. (See id. at
555.) As Chief Justice Warren's majority opinion famously
described: "Legislators represent people; not trees or acres.
Legislators are elected by voters, not farms or cities or
economic interests. As long as ours is a representative form of
government, and our legislatures are those instruments of
government elected directly by and directly representative of
the people, the right to elect representatives in a free and
unimpaired fashion is a bedrock of our political system." (Id.
at 562.)
Consistent with the Reynolds Court's holding that both houses of
a state legislature must be apportioned by population, the Court
has applied and upheld the one-person, one-vote principle on
numerous occasions and extended it to all forms of local
governments.
SJR 13 would urge the Supreme Court of the United States to
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uphold the United States Constitution's principle of "one
person, one vote" and not deny California's children and
immigrants equal protection under the law.
CHANGES TO EXISTING LAW
Existing federal law , the U.S. Constitution, provides that "the
House of Representatives shall be composed of Members chosen [ .
. . ] by the People of the several States [ . . . ]." Existing
federal law provides that "Representatives [ . . . ] shall be
apportioned among the several States which may be included
within this Union, according to their respective Numbers, which
shall be determined by adding to the whole Number of free
Persons, including those bound to Service for a Term of Years,
and excluding Indians not taxed, three fifths of all other
Persons. The actual Enumeration shall be made [ . . . ] within
every subsequent Term of ten Years, in such Manner as they shall
by Law direct." (U.S. Const., art. I, Sec. 2, clauses 1, 3.)
Existing federal law , the U.S. Constitution, provides that no
state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws. (U.S.
Const., 14th Amend., Sec. 1.)
Existing case law holds that the equal protection clause
requires that every voter is equal to every other voter in the
state when he casts his ballot in a statewide election. (Gray
v. Sanders (1963) 372 U.S. 368, 379-380, 381.)
Existing case law holds that challenges to the constitutionality
of congressional districting plans enacted by state legislatures
do not present nonjusticiable questions and should not be
dismissed generally for "want of equity." (Wesberry v. Sanders
(1964) 377 U.S. 1, 7.) Existing case law holds that the
constitution requires that as nearly as practicable one man's
vote in a congressional election must be worth as much as
another's. (Id. at 7-8.) Existing case law provides that
"while it may not be possible to draw congressional districts
with mathematical precision, that is no excuse for ignoring our
Constitution's plain objective of making equal representation
for equal numbers of people the fundamental goal for the House
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of Representatives." (Id. at 18.)
Existing case law provides that "the fundamental principle of
representative government is one of equal representation for
equal numbers of people, without regard to race, sex, economic
status, or place of residence within a state" and holds that the
Equal Protection Clause requires that the seats in both houses
of a bicameral state legislature be apportioned "on a population
basis." (Reynolds v. Sims (1964) 377 U.S. 533, 560, 568.)
Existing case law upholds apportionment on the basis of
registered voters in one specific instance. Specifically, the
Supreme Court held Hawaii's then-present apportionment based
upon distribution of the voting population in constructing
electoral districts "only because on this record it was found to
have produced a distribution of legislators not substantially
different from that which would have resulted from the use of a
permissible population basis." (Burns v. Richardson (1966) 384
U.S. 73, 93 (emphasis added).) Existing case law provides that
this holding is "not to be understood as deciding that the
validity of the registered voters basis as a measure has been
established for all time or circumstances, in Hawaii or
elsewhere." (Id. at 96.)
Existing case law provides that "the Equal Protection Clause
does not require the States to use total population figures
derived from the federal census as the standard by which this
substantial population equivalency is to be measured. . . .
Neither in Reynolds v. Sims nor in any other decision has this
Court suggested that the States are required to include aliens,
transients, short-term or temporary residents, or persons denied
the vote for conviction of crime, in the apportionment base by
which their legislators are distributed and against which
compliance with the Equal Protection Clause is to be measured.
The decision to include or exclude any such group involves
choices about the nature of representation with which we have
been shown no constitutionally founded reason to interfere.
Unless a choice is one the Constitution forbids [citation
omitted], the resulting apportionment base offends no
constitutional bar, and compliance with the rule established in
Reynolds v. Sims is to be measured thereby." (Id. at 91-92.)
Existing case law holds that basing districts on voting
population rather than total population would disproportionately
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affect the constitutionally protected right to equal
representation for people living in the Hispanic district
challenged in that case, rejecting the argument that rejecting
statistics based upon total population, rather than voting
population, for redistricting is erroneous as a matter of law.
(Garza v. County of Los Angeles (9th Cir. 1990) 918 F.2d 763,
773-74.)
Existing case law holds, in a California Supreme Court decision,
that the United States Constitution requires apportionment by
total population, not by voting population, and that
"[a]dherence to a population standard, rather than one based on
registered voters, is more likely to guarantee that those who
cannot or do not cast a ballot may still have some voice in
government." (Calderon v. City of Los Angeles (1971) 4 Cal.3d
251, 258-259.) Existing case law provides that this holding is
not to be understood to condemn a voter-based apportionment "in
all circumstances and for all time," but that in accordance with
Burns, above, the plan would need to show it fairly reflects
population distribution to withstand constitutional attack.
(Id. at 264.) To this end, the court also articulated
guidelines for the future if voter-based apportionment would be
used. (Id. at 265.)
Existing law requires districting in California to be
accomplished on the basis of total population. Specifically,
existing law requires redistricting following each decennial
federal census, and using that census as a basis, to adjust the
boundaries of any or all of the supervisorial districts of the
county so that the districts shall be as nearly equal in
population as may be and shall comply with the applicable
provisions of federal law, as amended, and permits consideration
to be given to: (a) topography, (b) geography, (c) cohesiveness,
contiguity, integrity, and compactness of territory, and (d)
community of interests of the districts. (Elec. Code Sec.
21500.)
This measure would state:
"one person, one vote" has been an enshrined principle of the
United States Constitution since it was articulated by Chief
Justice of the United States Earl Warren in Reynolds v. Sims
(1964) 377 U.S. 533, which was decided at the height of the
Civil Rights movement;
the Supreme Court of the United States, in Reynolds v. Sims,
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held that seats in both houses of a bicameral legislature must
be apportioned equally on a population basis under the equal
protection clause of the 14th Amendment to the United States
Constitution;
federal courts have consistently endorsed the use of total
population including those ineligible to vote, to determine
equal apportionment since Reynolds v. Sims;
political districts across the nation were arbitrarily drawn
and severely imbalanced before the Supreme Court of the United
States affirmed the principle of "one person, one vote" in
Reynolds v. Sims;
Texas plaintiffs, led by Sue Evenwel, Titus County GOP
chairwoman, are attempting to disenfranchise California's
immigrants and children by challenging the longstanding
democratic principle of "one person, one vote" through their
litigation in Evenwel v. Abbott;
the legal theory proffered by the plaintiffs, that legislative
districts must be drawn in a way that excludes children and
noncitizens and instead be drawn based on the population of
eligible voters, has not been endorsed by the Supreme Court of
the United States;
sixty three percent of California's population consists of
citizens of voting age;
California is deeply concerned with the recent decision of the
Supreme Court of the United States to hear arguments in
Evenwel v. Abbot and potentially disenfranchise 37 percent of
our state's population;
not counting immigrants, whether with legal status or
undocumented, as full persons for purposes of apportionment is
reminiscent of the United States Constitution's infamous
three-fifths clause that did not view enslaved black people
the same as white people for purposes of apportionment;
overturning the long held precedent of "one person, one vote"
would be tantamount to enshrining discrimination and prejudice
in the law; and
these plaintiffs seek to use the Supreme Court of the United
States to turn back the clock on a half century of legal
precedent and return to an unjust, unequal system of drawing
legislative districts that would deprive immigrants and
children of representation.
This measure would urge the Supreme Court of the United States
to uphold the United States Constitution's principle of "one
person, one vote" and not deny California's children and
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immigrants equal protection under the law.
COMMENT
1. Stated need for the bill
According to the author:
Since it was first affirmed 51 years ago by Chief Justice Earl
Warren's Supreme Court, "one person, one vote" has been a
widely articulated and consistently upheld tenet of our
nation's Constitution. Before that time, political districts
across the nation were arbitrarily drawn and severely
imbalanced - leaving millions underrepresented. Los Angeles
County and its 6 million people, for example, had the
equivalent voting power in our State Senate of a rural
district with barely 14,000 people.
This challenge now is nothing more than a cynical and
transparent effort to turn back the clock on decades of legal
precedent and return an unjust, unequal system of
redistricting that could greatly disadvantage diverse and
urban communities and deprive millions of American residents,
many of whom are either Latino or Asian, of political
representation. Moreover, as noted in the U.S. District Court
ruling in question (Evenwel v. Perry), the plaintiffs rely
primarily on a legal "theory never before accepted by the
Supreme Court or any circuit court."
In California, overturning "one person, one vote" could lead
to a system of political segregation that only counts
three-fifths of our population and essentially ignores the
rest. Californians believe that all people - not just adult
registered voters - deserve equal protection under our laws
and fundamental political representation.
Therefore, this measure is necessary to urge the Supreme Court
of the United States to uphold the federal constitutional
principle of "one person, one vote" and not deny California's
children and immigrants equal protection under the law."
The Latino Coalition for a Healthy California writes in support
that "[o]verturning 'one person, one vote' would not only turn
back the clock on half a century of legal precedent but would
allow for the inequities that would deprive immigrants and
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children of representation. It would also send a harmful
message to our society that not all human beings are people.
Creating a segregated political system that does not account for
the true composition of the population is damaging to our
democratic system, economy, and social well-being."
In support of the bill, the Asian Americans Advancing
Justice-Sacramento writes that "[s]ixty - three percent of
California's population consists of citizens of voting age. A
negative decision in Evenwel v. Abbot could significantly
deprive Asian Americans, Pacific Islanders, Latinos, and other
immigrant communities of political representation. Moreover,
because California has a relatively large number of immigrants
who are not yet citizens compared to other states in the United
States, California will likely lose representation in the U.S.
House of Representatives should the U.S. Supreme Court overturn
our traditional notions of one person, one vote. Such a decision
would disenfranchise, not just immigrants and children, but all
Californians. Our nation must not create a system of political
segregation where immigrants and children are told they do not
count. Election officials must represent the interest of all
residents of a community. Creating a structure that ignores the
needs of some, is anathema to democracy and will weaken our
society."
2. "One person - one vote" and the Texas challenge that is the
impetus of this resolution
As noted in the Background, the United States Supreme Court has
consistently applied and upheld the "one person, one vote"
principle in evaluating constitutional challenges to various
apportionment schemes and has only in "limited and unique
circumstances [ . . . ] ever permitted deviation" from that
principle. (See Chemerinksy at 908.) For example, in a case
involving a water storage district, the Court permitted
"one-acre, one-vote," instead, because of the limited governing
authority of the water district and how its decisions uniquely
effected landowners. "But in almost all other instances, the
court has said that one-person, one-vote must be met." (Id. at
909.)
While in the landmark case of Reynolds v. Sims (1964) 377 U.S.
533, the Court made clear that the Fourteenth Amendment requires
that apportionment of districts be based upon population, the
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Court has never actually stated which population, if any, is
mandated to be used as the basis of apportionment. Inevitably,
the question arises as to who counts for these purposes. "Is it
all persons legally within the area, or all citizens in the
area, or all potential voters in the area, or all registered
voters, or all who voted in the last election? The choice can
make an enormous difference as to whether the particular
districting is constitutional or a violation of equal
protection." (Id. at 909-910.) While the Court has not ruled
that a single one of these approaches must be used, in most
cases, including Reynolds, it has upheld apportionment where it
has been based upon total population and resulted in
substantially equal population (with only minor deviations of 10
percent, and sometimes less, being allowed). In one case, Burns
v. Richardson (1966) 384, U.S. 73, the Court upheld Hawaii's
apportionment on the basis of registered-voter data, as opposed
to total population, but did so, "only because on this record it
was found to have produced a distribution of legislators not
substantially different from that which would have resulted from
the use of a permissible population basis." (Burns at 93
(emphasis added).)
Recently, and of particular importance to this resolution, in
November 2014, a United States District Court in Texas was asked
to consider a challenge to the Texas Legislature's redistricting
plan, "PLANS 172" that was based on population (as opposed to
citizen voting age population). In that case, Evenwel v. Perry
(2014, W.D. Tex.) U.S. Dist. Lexis 156192, 3, the plaintiffs,
Sue Evenwel and Edward Pfenniger (hereinafter, "plaintiffs")
filed suit alleging that they are registered voters who actively
vote in Texas Senate elections and challenging the fact that, in
enacting PLANS 172, the Texas legislature apportioned senatorial
districts to achieve a relatively equal number of individuals
based on total population alone. As stated by the district
court, "[t]he crux of the dispute is Plaintiffs' allegation that
the districts vary widely in population when measured using
various voter-population metrics. They further allege that it
is possible to create districts that contain both relatively
equal numbers of voter population and relatively equal numbers
of total population. They argue that PLANS 172 violates the
one-person, one-vote principle of the Equal Protection Clause by
not appropriating districts to equalize both total population
and voter population." (U.S. Dist. Lexis 156192, 4 (emphasis in
original).) Stated another way, relying on the Burns case, the
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plaintiffs essentially were making the argument that an
apportionment scheme base only on population (which has on
numerous occasions been upheld by the Supreme Court), violates
Equal Protection unless the districts are also equal in voter
population as well.
Notably, the plaintiffs neither alleged that PLANS 172 failed to
achieve substantial population equality (to the contrary they
admitted facts showing the total deviation from ideal was under
10 percent), nor did they allege that the apportionment base
employed by Texas involves a choice the Constitution forbids.
(Id. at 6.)
Ultimately, the Texas District Court granted the defendants'
Federal Rule 12(b)(6) motion to dismiss for failure to state a
claim, holding that the plaintiff's failed to plead facts that
state an Equal Protection Clause violation under the Supreme
Court-recognized means for showing unconstitutionality under
that clause, and that their proposed theory has never gained
acceptance under the law. (Id. at 14.) Nonetheless, the
plaintiffs have challenged the decision and the Supreme Court
has agreed to hear the matter, noting "probable jurisdiction."
(Evanwel v. Perry (2015) 2015 U.S. LEXIS 3416.)
This measure urges the Supreme Court to uphold "one person, one
vote" as understood under Reynolds and its progeny, as opposed
to the suggested re-interpretation of that principle by the
Evenwel plaintiffs. In doing so, the resolution reflects both
the history of voting rights cases since Reynolds, as well as
the litigation arising in Texas, by noting, for example, that:
federal courts have consistently endorsed the use of total
population including those ineligible to vote, to determine
equal apportionment since Reynolds v. Sims;
Texas plaintiffs, led by Sue Evenwel, Titus County GOP
chairwoman, are attempting to disenfranchise California's
immigrants and children by challenging the longstanding
democratic principle of "one person, one vote" through their
litigation in Evenwel v. Abbott;
the legal theory proffered by the plaintiffs, that legislative
districts must be drawn in a way that excludes children and
noncitizens and instead be drawn based on the population of
eligible voters, has not been endorsed by the Supreme Court;
California is deeply concerned with the recent decision of the
Supreme Court to hear arguments in Evenwel v. Abbot and
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potentially disenfranchise 37 percent of our state's
population;
not counting immigrants, whether with legal status or
undocumented, as full persons for purposes of apportionment is
reminiscent of the U.S. Constitution's infamous three-fifths
clause that did not view enslaved black people the same as
white people for purposes of apportionment;
overturning the long held precedent of "one person, one vote"
would be tantamount to enshrining discrimination and prejudice
in the law; and
these plaintiffs seek to use the Supreme Court to turn back
the clock on a half century of legal precedent and return to
an unjust, unequal system of drawing legislative districts
that would deprive immigrants and children of representation.
3. Total population as basis of apportionment has frequently
been used in applying the one person, one vote principle
While the Court has upheld total population as the basis for
achieving substantial population equality in apportionment, it
has not gone as far as affirmatively requiring that it be used.
That being said, as noted by the Texas district court, above,
courts have repeatedly rejected Equal Protection challenges to
the use of total population for apportionment purposes. (See
Chen v. City of Houston (5th Cir. 2000) 206 F.3d 502, 522, cert.
denied 532 U.S. 1046 (2001) (rejecting argument that City of
Houston violated Equal Protection Clause by "improperly
craft[ing] its districts to equalize total population rather
than citizen voting age population (CVAP)"); see also Daly v.
Hunt (4th Cir. 1996) 93 F.3d 1212, 1222 (rejecting argument that
"voting-age population is the more appropriate apportionment
base because it provides a better indication of actual voting
strength than does total population").)
Of particular relevance for this state, the Ninth Circuit in
Garza v. County of Los Angeles (9th Cir. 1990) 918 F.2d 763,
773-74 has previously rejected the argument that the decision to
"employ[ ] statistics based upon total population, rather than
voting population, for redistricting is erroneous as a matter of
law." Indeed, as noted in the Garza case, the Supreme Court, in
Gaffney v. Cummings (1973) 412 U.S. 735, 747 "approved a
redistricting based on total population, but with some
deviations based upon consideration of political factors. In
approving that plan, the Court expressly noted that districting
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based upon total population would lead to some disparities in
the size of the eligible voting population among districts.
These differences arise from the number of people ineligible to
vote because of age, alienage, or non-residence, and because
many people choose not to register or vote. [Gaffney, at
746-47.] The Court made no intimation that such disparities
would render those apportionment schemes constitutionally
infirm." (Garza, at 774.)
As a matter of public policy, it is arguably concerning not to
"count" individuals simply due to their age or immigration
status. This is particularly the case in a state as diverse and
young as California. Even the Burns Court, which held that it
was permissible for the government to use the number of
registered voters as its basis for drawing districts in one
particular instance, recognized that use of a registered voter
or actual voter basis presents a problem as:
[such a basis] depends not only upon criteria such as govern
state citizenship, but also upon the extent of political
activity of those eligible to register and vote. Each is thus
susceptible to improper influences by which those in political
power might be able to perpetuate underrepresentation of
groups constitutionally entitled to participate in the
electoral process, or perpetuate a 'ghost of prior
malapportionment.' Moreover, 'fluctuations in the number of
registered voters in a given election may be sudden and
substantial, caused by such fortuitous factors as a peculiarly
controversial election issue, a particularly popular
candidate, or even weather conditions.' [Citation omitted.]
Such effects must be particularly a matter of concern where,
as in the case of Hawaii apportionment, registration figures
derived from a single election are made controlling for as
long as 10 years. (Burns v. Richardson (1966) 384 U.S. 73,
93.)
Moreover, even discounting constitutional implications of such a
voter-only based apportionment scheme, the necessary and
undesirable policy implication of such an apportionment scheme
would be to send the message that non-voters do not matter for
purposes of representation. (Discussed further in Comment 4,
below.)
4. Apportionment based on eligible, registered, or likely
voters could effectively disenfranchise millions of
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Californians in violation of the Constitution
As noted above, today, the claim that a state is denying the
right of representation to its citizens through improper
apportionment presents a justiciable issue and the courts have
consistently applied the one-person, one-vote rule in those
cases. (Reynolds v. Sims (1964) 377 U.S. 533.)
As recognized by the Supreme Court as early as 1886 in dicta,
voting is a "fundamental political right" because it is
"preservative of all rights." (Chemerinksy at 894, citing Yick
Wo. v. Hopkins (1886) 118 U.S. 356, 370.) As expressed in a
reapportionment case of Wesberry v. Sanders (1964) 376 U.S. 1,
17: "No right is more precious in a free country than that of
having a voice in the election of those who make laws under
which, as good citizens, we must live. Other rights, even the
most basic, are illusory if the right to vote is undermined."
The Wesberry Court relied in part on the words of the framers,
including one of the more active members of the Convention and
an Associate Justice of the Court, James Wilson: "All elections
ought to be equal. Elections are equal, when a given number of
citizens, in one part of the state, choose as many
representatives, as are chosen by the same number of citizens,
in any other part of the state. In this manner, the proportion
of the representatives and of the constituents will remain
invariably the same." (Id.) In the words of James Madison in
Federalist No. 57: "Who are to be the electors of the Federal
Representatives? Not the rich more than the poor; not the
learned more than the ignorant; not the haughty heirs of
distinguished names, more than the humble sons of obscure and
unpropitious fortune. The electors are to be the great body of
the people of the United States. . . ." (Id. at 18.)
"Readers," the Wesberry Court said, citing the phrase first
coined the prior year in Gray v. Sanders (1963) 372 U.S. 368,
381, "surely could have fairly taken this to mean, 'one person,
one vote.'" (Id.)
As described in the Background, the right to vote has developed
over the years as a product of post-Civil War constitutional
amendments and case law interpreting the right to vote to be a
fundamental interest protected under the Equal Protection and
Due Process Clauses of the Fourteenth Amendment. Overall, by
the mid-1970s, virtually any citizen over the age of 18 had the
right to vote in elections. That being said, "even though most
legal barriers have fallen, barely half the electorate votes in
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presidential elections, with considerably smaller percentages
turning out in state or local races. Among those generally not
voting are the young, those with lesser education, the poor, and
people of color. In effect the real electorate today looks much
like those who were legally permitted to vote in 1787." (The
Oxford Companion to the Supreme Court of the United States,
Voting Rights of Other Individuals (2005, 2nd Ed.). p. 1054.)
Thus, if the Court were to hold that "one person, one vote"
requires reapportionment based upon something other than the
general population, such as the population of registered voters
or the plaintiff's preferred method of citizens of voting age
population, it is arguably easy to envision that many people
would be denied their right to equal protection and equal
representation. In a republic form of government, elected
officials represent not just their electors, but all
constituents in their districts. Thus, the drawing of electoral
districts matters not only determined which voters in a
particular area are able to vote for candidates seeking to
represent that district, but also determines the individuals who
the elected official will ultimately represent. As stated by
the Ninth Circuit in Garza, relying on extensive Supreme Court
precedent:
The purpose of redistricting is not only to protect the voting
power of citizens; a coequal goal is to ensure "equal
representation for equal numbers of people." Kirkpatrick [v.
Priesler] 394 U.S. [526] at 531, [ . . . ]. Interference with
individuals' free access to elected representatives
impermissibly burdens their right to petition the government.
Eastern Railroad Presidents Conference v. Noerr Motor Freight,
Inc., [(1961)] 365 U.S. 127, 137 [ . . . ]. Since "the whole
concept of representation depends upon the ability of the
people to make their wishes known to their representatives",
this right to petition is an important corollary to the right
to be represented. Id. Non-citizens are entitled to various
federal and local benefits, such as emergency medical care and
pregnancy-related care provided by Los Angeles County.
[Citations omitted.] As such, they have a right to petition
their government for services and to influence how their tax
dollars are spent. [ . . . ]
[Basing districts on voting population rather than total
population] would dilute the access of voting age citizens in
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that district to their representative, and would similarly
abridge the right of aliens and minors to petition that
representative. For over a century, the Supreme Court has
recognized that aliens are "persons" within the meaning of the
fourteenth amendment to the Constitution, entitled to equal
protection. See Yick Wo v. Hopkins [(1886)] 118 U.S. 356 [ . .
. ]. This equal protection right serves to allow political
participation short of voting or holding a sensitive public
office. [Citations omitted.] Minors, too, have the right to
political expression. Tinker v. Des Moines Community School
Dist. [(1969)] 393 U.S. 503, 511-13 [ . . . ]. To refuse to
count people in constructing a districting plan ignores these
rights in addition to burdening the political rights of voting
age citizens in affected districts.
In a later Supreme Court case, Kirkpatrick v. Preisler (1969)
394 U.S. 526, 531, the Supreme Court commented that "[e]qual
representation for equal numbers of people is a principle
designed to prevent debasement of voting power and diminution of
access to elected representatives." As recognized by the
California Supreme Court in Calderon v. Los Angeles, "[c]rucial
though voting is as a method of participation in representative
government [citing various Supreme Court precedent including
Reynolds], access to elected officials is also an important
means of democratic expression -- and one that is not limited to
those who cast ballots." (4 Cal.3d 251, 259, noting also that
"one form of such access is embodied in the First Amendment's
guarantee of 'the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.' There
is nothing in that amendment to limit its protection to
registered voters." See id., fn. 8.)
Support : American Civil Liberties Union; Asian Americans
Advancing Justice-Sacramento; California Asian Pacific Islander
(API) Budget Partnership; California Immigrant Policy Center;
Coalition for Humane Immigrant Rights of Los Angeles; Latino
Coalition for a Healthy California; Mexican American Legal
Defense and Educational Fund; United Farm Workers
Opposition : None Known
HISTORY
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Page 18 of ?
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
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