BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SJR 13|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
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THIRD READING
Bill No: SJR 13
Author: De León (D), et al.
Introduced:6/8/15
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/16/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SUBJECT: Voting: apportionment
SOURCE: Author
DIGEST: This resolution urges 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.
ANALYSIS:
Existing law:
1)Provides, under the Fourteenth Amendment to the U.S.
Constitution, 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
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protection of the laws.
2)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.)
3)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 and further 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
of Representatives." (Wesberry v. Sanders (1964) 377 U.S. 1,
7-8, 18.)
4)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.)
5)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).) Further 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 . . . ." (Id. at 96.)
6)Provides that "the Equal Protection Clause does not require
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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.)
7)Holds that basing districts on voting population rather than
total population would disproportionately 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.)
8)Holds, in a California Supreme Court decision, that the
federal 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.) Also provides that this holding is not to be
understood to condemn a voter-based apportionment "in all
circumstances and for all time," but that the plan would need
to show it fairly reflects population distribution to
withstand constitutional attack. (Id. at 264.)
9)Requires districting in California to be accomplished on the
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basis of total population. (Elec. Code Sec. 21500.)
This resolution:
1)States:
"One person, one vote" has been an enshrined principle
of the U.S. Constitution since it was articulated by Chief
Justice Earl Warren in Reynolds v. Sims (1964) 377 U.S.
533, which was decided at the height of the Civil Rights
movement;
The U.S. Supreme Court, in Reynolds v. Sims, held that
seats in both houses of a bicameral legislature must be
apportioned equally on a population basis under the
Fourteenth Amendment's equal protection clause;
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 U.S. Supreme Court
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
U.S. Supreme Court;
63% of California's population consists of voting age
citizens;
California is deeply concerned with the recent decision
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of the U.S. Supreme Court to hear arguments in Evenwel v.
Abbot and potentially disenfranchise 37% 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 U.S. 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.
1)Urges the U.S. Supreme Court to uphold the Constitution's
principle of "one person, one vote" and 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 Constitution:
the Fifteenth Amendment (adopted in 1870 to prohibit states from
denying the right to vote on account of "race, color, or
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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); and the Twenty-Sixth Amendment (adopted in
1971 to protect the right of citizens, age 18 or older, to
vote). In addition to those textual provisions, beginning in
the 1960s, the U.S. Supreme Court 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.
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. 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."
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. It also 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
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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 because 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 however, the U.S.
Supreme Court had declined to review constitutional challenges
to apportionment under the theory that such claims constitute
nonjusticiable political questions, which are more appropriately
resolved in the political process. In Baker, the Court held
that an Equal Protection claim challenging a state's
apportionment of legislative seats, 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, in Gray v.Sanders, the Court first coined the
phrase "one person, one vote," the principle that the Equal
Protection Clause requires 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
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
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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. 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. 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 Reynolds' 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 urges the U.S. Supreme Court to uphold "one person, one
vote" principle and not deny California's children and
immigrants equal protection under the law.
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Comments
As stated by 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.
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/18/15)
American Civil Liberties Union
Asian Americans Advancing Justice-Sacramento
California Asian Pacific Islander Budget Partnership
California Immigrant Policy Center
California State Conference of the National Association for the
Advancement of Colored People
California State Council of Service Employees International
Union
Coalition for Humane Immigrant Rights of Los Angeles
Latino Coalition for a Healthy California
Los Angeles Center for Law and Justice
Mexican American Legal Defense and Educational Fund
United Farm Workers
OPPOSITION: (Verified6/18/15)
None received
ARGUMENTS IN SUPPORT: The Latino Coalition for a Healthy
California writes, "Overturning '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 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."
Also in support, 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
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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."
Prepared by:Ronak Daylami / JUD. / (916) 651-4113
6/18/15 17:38:09
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