BILL ANALYSIS Ó
SJR 13
Page 1
Date of Hearing: July 15, 2015
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
SJR
13 (De León) - As Introduced June 8, 2015
SENATE VOTE: 36-0
SUBJECT: Voting: apportionment.
SUMMARY: Urges the United States (U.S.) Supreme Court to uphold
the U.S. Constitution's principle of "one person, one vote" in
the case of Evenwel v. Abbott. Specifically, this resolution:
1)Contains the following findings and declarations:
a) "One person, one vote" has been an enshrined principle
of the U.S. Constitution since it was articulated by Chief
Justice of the U.S. Earl Warren in Reynolds v. Sims (1964)
377 U.S. 533, which was decided at the height of the Civil
Rights movement;
b) 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 equal
protection clause of the Fourteenth Amendment to the U.S.
SJR 13
Page 2
Constitution;
c) Federal courts have consistently endorsed the use of
total population, including those ineligible to vote, to
determine equal apportionment since Reynolds v. Sims;
d) Political districts across the nation were arbitrarily
drawn and severely imbalanced before the Supreme Court of
the U.S. affirmed the principle of "one person, one vote"
in Reynolds v. Sims;
e) 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;
f) 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 never been endorsed by
the U.S. Supreme Court;
g) Sixty-three percent of California's population consists
of citizens of voting age;
SJR 13
Page 3
h) California is deeply concerned with the recent decision
of the U.S. Supreme Court to hear arguments in Evenwel v.
Abbott and potentially disenfranchise 37 percent of the
state's population;
i) 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;
j) Overturning the long held precedent of "one person, one
vote" would be tantamount to enshrining discrimination and
prejudice in the law; and,
aa) 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.
2)Urges the U.S. Supreme Court to uphold the U.S. Constitution's
principle of "one person, one vote" and not deny California's
children and immigrants equal protection under the law.
EXISTING LAW:
SJR 13
Page 4
1)Requires seats in the U.S. House of Representatives to be
apportioned among the states according to their respective
numbers, counting the whole number of persons in each state,
excluding Indians not taxed. (U.S. Constitution, Fourteenth
Amendment, Section 2.)
2)Prohibits a state from making or enforcing any law which
abridges the privileges or immunities of citizens of the U.S.;
from depriving any person of life, liberty, or property,
without due process of law; or from denying to any person
within its jurisdiction the equal protection of the laws.
(U.S. Constitution, Fourteenth Amendment, Section 1.)
FISCAL EFFECT: None. This resolution is keyed non-fiscal by
the Legislative Counsel.
COMMENTS:
1)Purpose of the Resolution: According to the author:
I am deeply concerned with the U.S. Supreme Court's
recent decision to revisit a long-standing principle
of our constitution - "one person, one vote" - in the
Evenwel v. Abbott case. This is a shocking development
with dire implications for the political rights of
millions of American residents.
Since it was first affirmed 51 years ago by Chief
SJR 13
Page 5
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.
2)"One Person, One Vote" and Reynolds v. Sims: As noted above,
the Fourteenth Amendment to the U.S. Constitution prohibits a
SJR 13
Page 6
state from denying to any person within its jurisdiction the
equal protection of the laws, among other provisions. This
provision is commonly referred to as the Equal Protection
Clause.
Prior to the 1960s, in many states, the seats in at least one of
the houses of the state Legislature were established and based
at least partially on geography, rather than strictly on a
population basis. For example, although the districts in both
houses of California's Legislature originally were based on
population, in 1926, California voters adopted Proposition 28,
which proposed a so-called "federal plan" of representation.
Under that plan, the seats in the state Senate were
apportioned largely based on geography, rather than by
population. Proposition 28 provided that no county or city
and county could contain more than one senatorial district,
and no senatorial district could include more than three
counties of small population. Assembly districts under
Proposition 28 continued to be established based largely on
population.
In 1962, the U.S. Supreme Court considered Baker v. Carr (1962)
369 U.S. 186, a case in which Tennessee voters alleged that
the state's apportioning of seats in the General Assembly
among the state's counties, and a failure to reapportion them
subsequently notwithstanding substantial growth and
redistribution of the state's population, resulted in a
"debasement of their votes," and those voters were thereby
denied the equal protection of the laws guaranteed them by the
Fourteenth Amendment. In that case, the Court held for the
first time that such allegations of a denial of equal
protection presented a justiciable constitutional cause of
action. Prior to Baker, courts generally had held that such
controversies over the apportionment of state legislative
seats presented a "political question" over which the courts
did not have jurisdiction.
SJR 13
Page 7
The following year, the U.S. Supreme Court first coined the
phrase "one person, one vote" in the case of Gray v. Sanders
(1963) 372 U.S. 368. That case concerned a Georgia law under
which the winners of primary elections for statewide offices
were determined based on a county unit system, where the
candidate who received the most votes in each county received
two votes for each representative to which the county was
entitled in the lower House of Georgia's General Assembly.
Because seats in the lower House were not apportioned based
entirely on population, this system had the effect of giving
voters in less-populated counties greater influence in primary
elections than voters in more populous counties. In its
ruling in Gray, the U.S. Supreme Court found that the Equal
Protection Clause requires that all voters who participate in
an election have an equal vote in that election. In its
decision, the court wrote:
How then can one person be given twice or ten times
the voting power of another person in a state-wide
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 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?.
SJR 13
Page 8
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 U.S. Supreme Court squarely
addressed the question of whether the Equal Protection Clause
requires apportionment of state legislative seats to be based
on population in 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. Chief Justice Warren's majority opinion
noted that, "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 legislators in a free and
unimpaired fashion is a bedrock of our political system."
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
SJR 13
Page 9
principle on numerous occasions and extended it to all forms
of local governments.
3)Evenwel v. Abbott: In April 2014, two individuals in Texas
filed a lawsuit in the U.S. District Court for the Western
District of Texas challenging the state's senatorial districts
that were adopted by the Legislature and the Governor. In
that case, Evenwel v. Perry (2014), case number
A-14-CA-335-LY-CH-MHS, the plaintiffs, Sue Evenwel and Edward
Pfenniger, alleged that the state's senatorial districts
violated the one person, one vote principal of the Equal
Protection Clause. Although the plaintiffs acknowledged that
the Senate districts were designed to have a relatively equal
number of persons based on total population, they argued that
the failure to establish districts that equalized both total
population and voter population was impermissible under the
one person, one vote principle.
Notwithstanding the U.S. Supreme Court's determination in
Reynolds that the Fourteenth Amendment requires that
apportionment of districts be based upon population, the Court
has never held which population, if any, is required to be
used as the basis for apportionment. Instead, the U.S.
Supreme Court explained in Burns v. Richardson (1966) 384 U.S.
73, "the decision to include or exclude any such group" in the
population that is used as the basis for apportionment
"involves choices about the nature of representation with
which we have been shown no constitutionally founded reason to
interfere." The Court found that "[u]nless a choice is one
the Constitution forbids, the resulting apportionment base
offends no constitutional bar, and compliance with the rule
established in Reynolds v. Sims is to be measured thereby."
(Internal citations omitted.)
SJR 13
Page 10
In November 2014, the U.S. District Court for the Western
District of Texas dismissed the Evenwel case, finding that the
plaintiffs "failed to plead facts that state an Equal
Protection Clause violation under the recognized means for
showing unconstitutionality under that clause" and that the
"Plaintiffs' proposed theory for providing an Equal Protection
Clause violation . . . has never gained acceptance in the
law." In May of this year, the U.S. Supreme Court agreed to
hear the appeal in Evenwel. (The case is now titled Evenwel
v. Abbott, to reflect the fact that Greg Abbott became the
Governor of Texas between the time that the District Court
issued its decision and the time that the U.S. Supreme Court
agreed to hear the appeal of the case.) The U.S. Supreme
Court will hear oral arguments in the case at its next term,
which begins in the fall.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union of California
Asian Americans Advancing Justice - Sacramento
California Asian Pacific Islander Budget Partnership
California Immigrant Policy Center
SJR 13
Page 11
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
None on file.
Analysis Prepared by:Ethan Jones / E. & R. / (916)
319-2094
SJR 13
Page 12