Tag: section 2

Supreme Court Should Clarify the Meaning of “One-Person, One-Vote”

As I wrote in January, the Supreme Court is currently considering – and will likely decide next week – whether to review a case, Lepak v. City of Irving, involving the constitutional principle of one-person, one-vote (OPOV). The specific issue is whether redistricting processes trying to comply with OPOV should equalize the total population in each electoral district or the number of citizens of voting age.  If the former, then a relatively small number of eligible voters in a heavily immigrant district can have their votes “over-weighted” compared to voters in other districts that are similarly populated but have far more eligible voters – as happened in Irving, Texas. Cato filed a brief supporting the challengers that highlighted the untenable conflict between OPOV and modern applications of Section 2 of the Voting Rights Act.

Over the last few days, several commentators have discussed this case and its implications -– including most recently Adam Liptak in the New York Times.  Most have presented the question facing the Court in Lepak as a choice between two competing theories of democracy: electoral equality (ensuring the equal weighting of voters’ votes) and representational equality (ensuring residents have equal access to representation).  For example, Liptak quotes University of Texas law professor Joseph Fishkin as describing the “enormous practical consequences” of a Court ruling that mandates electoral equality, which include “shift[ing] power markedly at every level, away from cities and neighborhoods with many immigrants and children and toward the older, white, more exclusive native-born areas.”  But this framing of the issue as a mutually exclusive “choice” rests on two crucial assumption, both of which are deeply flawed. 

First, most basically, it’s a false choice.  Electoral and representational equality aren’t mututally exclusive.  States and cities can –and almost always do, albeit unconsciously – create districts that meet both criteria.  That’s because equalizing population between districts will almost always equalize voting power too.  But even in the exceptional case where there are geographic concentrations of disproportionately non-citizen populations in a particular political subdivision, districts meeting both criteria can still easily be formed.   Legislators routinely draw districts that satisfy multiple goals – for instance, equal numbers of total population and certain partisan majorities.  If a state or city pursued both electoral and representational equality as apportionment goals, Fishkin’s parade of horribles would easily be avoided.

Second, Fishkin’s framing incorrectly assumes that OPOV can be met either by equalizing voting power or by equalizing representational access.  But OPOV isn’t some kind of constitutional either/or.  Indeed, as the name itself suggests, the constitutional requirement is one-person, one-vote, not one-person, one-equal-share-of-access-to-representation.  The Supreme Court has made clear that the person being protected by the doctrine is the voter and the thing being protected is the weight of that voter’s vote.  Thus the Court “simply stated” the OPOV doctrine as follows in the 1964 case of Reynolds v. Sims: “An individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living on other parts of the State.”  In other words, the right of a voter to an equally weighted vote stands on its own constitutional grounds.  This right doesn’t somehow evaporate when a city or state creates electoral districts containing equal populations.

This same flaw infects the reasoning in the three circuit court cases that have previously addressed this issue (whose divergent reasoning itself begs Supreme Court instruction).  As the lawyers representing the Lepak plaintiffs – one of whom I should mention is a former co-clerk of mine – put in a recent article in the Texas Review of Law and Politics:

Each [of the lower-court decisions] treats representational equality and electoral equality as morally and constitutionally equivalent. But this is putting the cart before the horse. Even assuming there is a constitutional right to equal representation, in the hierarchy of constitutional rights, electoral equality clearly reigns supreme. The Supreme Court has noted the right to vote is “preservative of all other rights,” and it is. Before there can be any meaningful representation, the right to vote must be protected and secured. In any “clash” between the right of a voter to an equally weighted vote and the right of a nonvoter to equal representation, the right of the voter trumps. 

By ignoring this reality and imposing literally no limits on how severely a city or state could dilute the weight of its voters’ votes, Garza, Daly, and Chen set a dangerous precedent. In those cases, vote dilution was as high as fifty percent. That result is pernicious enough. But it is just the tip of the iceberg. Under the holdings of these cases, so long as the total populations between the districts are equalized, a city could arbitrarily “choose” to make one voter’s vote worth two times, ten times, or even ten thousand times as much as another voter’s vote. Under these cases, any of these “political choices” would be acceptable. Yet how could any of these results be squared with the Supreme Court’s categorical holding that a voter has “a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted”?

It’s a good question, and one the Supreme Court will hopefully soon answer.

Modern Voting Rights Act Takes Another Constitutional Stumble

In 2009, Irving, Texas, was forced to redraw its city council districts after a federal court held that its multi-member-district system discriminated against Hispanic voters in violation of Section 2 of the Voting Rights Act, which protects the rights of racial and linguistic minorities to elect their preferred candidates (whatever that means). Following complex Section 2 precedent, the court employed the requisite “citizen of voting age population” (CVAP) standard and found that, in the absence of at-large elections, Irving’s Hispanic voters could have constituted their own majority district.

When Irving finished redrawing its map, the total population count of residents inhabiting each district was roughly equal and one was indeed majority-Hispanic. Because the redistricting process used total population instead of CVAP, however, that particular district had a significant concentration of non-citizen residents. A relatively small constituency of eligible voters in that district thus had their votes so “over-weighted” that their voting power was effectively double that of voters in the other districts (which, again, were similarly populated but had twice the number of eligible voters).

Irving citizens sued the city, alleging violations of their voting rights as guaranteed by the one-person, one-vote (OPOV) principle under the Fourteenth Amendment’s Equal Protection Clause. The U.S. Court of Appeals for the Fifth Circuit affirmed a dismissal of these claims, following circuit precedent holding that the decision to use either total population or CVAP when applying OPOV should be left to elected officials’ discretion. Astonishingly, even though courts are required to use CVAP when examining Section 2 racial-discrimination claims—see above—the Fifth Circuit completely ignored the CVAP disparities in the redrawn districting plan.

Cato has now filed an amicus brief supporting the Irving citizens’ request that the Supreme Court take the case. We have frequently argued that courts confront a “bloody crossroads” when trying to reconcile the modern Voting Rights Act with the Constitution. Here, not only has the Fifth Circuit illustrated the tension between Section 2 and the Fourteenth Amendment, but similar rulings in the Fourth and Ninth Circuits—either deferring to the political branches or precluding the use of CVAP altogether—have heightened the conflict.

The Fourteenth Amendment and OPOV are emphatically within the province of the judiciary to enforce. We thus urge the Court to review the intolerable contradiction that arises when Section 2, intended to enforce the guarantees of the Fourteenth Amendment, is used to violate OPOV.

While once a functional proxy for equalizing the voting strength of eligible voters, the total population metric has become imprecise and outmoded. In areas with high concentrations of non-citizen, non-voter residents, it can conceal substantive demographic differences that undermine the principle of voter equality. CVAP, by contrast, is the most precise measure of the substantive electoral equality and the proper means for reconciling the conflict between Section 2 and the Fourteenth Amendment.

The name of the case is Lepak v. City of Irving. The city and certain activist groups that have intervened in the case will now file their opposition to the petition for review, and then the Supreme Court will decide this spring whether to take the case and set it for argument in the fall.

Section 5 of the Voting Rights Act Has Got to Go

This blogpost (and the brief described herein) was co-authored by Cato legal associate Matt Gilliam.

Today Cato filed an amicus brief supporting the petitions for Supreme Court review in two cases involving similar challenges to the Voting Rights Act of 1965. Specifically, the cases challenge the requirement under Section 5 that certain jurisdictions (as determined by a 35-year-old formula in Section 4(b)) receive approval (“preclearance”) from the Department of Justice or a special federal court in Washington before implementing any change to election regulations, no matter how modest.

In Nix v. Holder, the Department of Justice rejected the decision by voters in Kinston, North Carolina, to make local elections nonpartisan – as is the case in most of the state – on the basis that “the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice.” In Shelby County v. Holder, an Alabama county sued to attain preemptive resolution of the “serious constitutional questions” noted by the Supreme Court in the last significant VRA challenge in 2009. Both lawsuits hinge on the modern validity of Section 5, and both were turned back by the U.S. Court of Appeals for the D.C. Circuit (Shelby County over a heated dissent by Judge Stephen Williams). Both now seek Supreme Court review, and Cato’s amicus brief urges the Court to hear either case, or both.

The Fifteenth Amendment gives Congress the power to craft “appropriate” enforcement legislation to secure the rights of all citizens to vote, regardless of race or color. Congress’s initial attempts to enforce those rights, however, were frustrated by tactics designed to evade federal authority. Congress thus enacted Section 5, meant to apply to jurisdictions with a history of disenfranchising black voters. The Supreme Court, in upholding Section 5 against constitutional challenge in the 1960s, recognized that the measure is extraordinary, exacting perverse and substantial costs on federalism and equal protection principles – but as long as Congress’s electoral concerns were substantiated, Section 5 remained constitutionally justified. Enforcement of the VRA went on to successfully defeat the systemic discrimination that had once justified Section 5.

In 2006, however, Congress reauthorized the VRA for another 25 years, without explaining why certain jurisdictions had to be subject to such an intrusive process on the basis of an obsolete formula, particularly when all of the evidence showed that the goal of minority representation and access to voting in the South was achieved (and indeed that black registration and voting rates were higher in covered jurisdictions than elsewhere in the country). Indeed, the 2006 revisions made matters worse, authorizing the federal government to reject any electoral changes in a covered jurisdiction, no matter how small or insignificant, whenever they are believed to evince “any discriminatory purpose” or “diminish[] the ability of minority citizens … to elect their preferred candidate of choice.” Beyond the harm to federalism, the modern Section 5 thus creates a serious equal protection dilemma, mandating that covered jurisdictions factor race into their election laws even as the Fourteenth and Fifteenth Amendment’s non-discrimination principles forbid it.

In addition to these problems, Section 5 cannot coexist with Section 2 (a provision aimed at discrete instances of discrimination in voting). The Supreme Court should excise Section 5, leaving Section 2 private rights of action as the proper remedy for voter disenfranchisement. Because Section 5’s burdens are no longer justified by “current needs,” they fail to satisfy the Court’s requirements for “appropriate” enforcement legislation. In other words, Section 5’s early success quickly obviated its legitimacy. Accepting that point is not an admission of defeat, but a declaration that the VRA has achieved its promise.

The Court will decide this fall whether to hear Nix v. Holder and/or Shelby County v. Holder.