Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how the Court’s one-person, one-vote decision may represent the essence of judicial compromise on a multi-member court.
“Drawing upon historical material…, Justice Ginsburg told the story of our Constitution’s Framers, both at the founding and after the Civil War, and how they settled on total population as the constitutional rule [for establishing equality in redistricting of state legislatures].”– Excerpt from a public statement on April 4 by Elizabeth Wydra, president of the Constitutional Accountability Center, a think tank that specializes in constitutional analysis and advocacy, after the Supreme Court released its decision in the case of Evenwel v. Abbott on the meaning of the “one-person, one-vote” principle.
“The choice is best left for the people of the states to decide for themselves how they should apportion their legislatures. There is no single ‘correct’ method of apportioning state legislatures. And the Constitution did not make this court a centralized politburo appointed for life to dictate to the provinces the ‘correct’ theories of democratic representation, or the ‘best’ electoral systems for securing truly representative government.”– Excerpt from a separate opinion on April 4 by Justice Clarence Thomas, as he joined in the result but not the majority’s reasons for its decision in the case of Evenwel v. Abbott.
WE CHECKED THE CONSTITUTION, AND…
The elegantly simple idea that those elected to legislatures across the nation actually “represent people, not trees” is not a part of the written text of the Constitution, but for the past 52 years, it has been a part of the basic understanding that each person who casts a vote is equal to every other voter. It is essential to the core theory of a democracy, that the people rule, and do so with equal political authority.
That has come to be known as the equality principle of “one-person, one-vote,” and it has had its most important use in describing what is supposed to be the constitutional result of drawing up new legislative districts after each ten-year census counts the American people.
Of course, that equality principle can be defeated, in various ways. A redistricting map can be “gerrymandered” in a way that makes one’s political party an advantage or disadvantage at election time, or makes one’s race or where one lives an advantage of disadvantage in the voting booth. And it can be defeated if, in the ten-year interval between the taking of the census, there are large shifts in a state’s population, so that districts that once seemed equal in voting strength become “malapportioned.”
Still, the principle remains, and there is no sign that the Supreme Court is less than alert to threats to its continuing force in the theory of democratic representation. Strangely, though, in the half-century history of redistricting legislative seats under that governing principle, the actual way to achieve “one-person, one-vote” has never been spelled out by the Supreme Court.
It can mean several different things. First, it can mean that, when a new election district map is drawn up, each district gets its equal share of the state’s total population – that is, an equal share based on the actual number of all the people living in the state (with some leeway if the districts that result are not absolutely equal in actual numbers of people). Second, it can mean that each district is to get an equal share of those who are registered to vote in the state. Third, it can mean that each district is to get an equal share of those of voting age, whether they are registered to vote, or not.
In each of those three situations, one could say that the districts that are drawn on a new map do, indeed, represent equal collections of people; it’s just that they differ in who “the people” are in the metric. For the first, “the people” includes everyone – including people who can’t vote, like children, non-citizens, and convicted criminals. For the second, “the people” includes those who take the trouble to sign up to vote. And, for the third, “the people” includes everyone who could vote, if they made the effort.
On Monday, the Supreme Court concluded an examination of which group of “the people” is to be taken into account in redistricting.
It chose the first, not by concluding that that approach was required by the equality principle or by the Constitution itself. Rather, it chose, based on another political theory: that “representation” in a democracy means that an elected official represents all the people in a particular constituency, and not just the voters. Everyone, voter or not, should feel free to make constituent demands on how an elected official uses government power.
It is an exaggeration to say that the court established that version of “the people” as a constitutional rule. It allowed states to use that approach; it did not insist that they do so.
The court did not finally rule out the second or third versions of the starting point for redistricting legislatures. It said only that neither of those was required by the Constitution. It left for another day and a future case whether, if a state did use some version of voting population as the starting point for drawing equal new districts, that would violate one-person, one-vote theory. At least Justice Clarence Thomas thought that a state could use a voter-based approach, and not violate the Constitution. But no other Justice joined in that view.
Why would it be, then, that after the considerable labor of reviewing this fundamental test case on the theory of democratic representation, as a constitutional matter, the Justices would wind up making no firm declarations about what the Constitution required as electoral equality?
Sometimes, that ultimate aim of judicial review gets frustrated, especially on a multi-member court, where majorities have to be put together, and maybe a definitive answer proves elusive and could not be achieved without fracturing the court. That is the essence of judicial compromise, on a multi-member court. And, especially, on a multi-member court that has only eight members, and compromises have to be reached in order to avoid dividing the eight into two blocs of four. For the Supreme Court, such a tie does not produce any result. The compromise that emerged in Evenwel v. Abbott may just be a good example of that situation.
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