Tag: voting

The Supreme Court Misread Constitutional History Regarding “One Person, One Vote”

Two months ago, the Supreme Court ruled that states have leeway in determining how to draw their legislative districts, more specifically that they don’t have to equalize the number of voters per district to satisfy the constitutional principle of “one person, one vote.” The decision was really a “punt,” not resolving the tensions between “representational equality” and “voter equality”; it’ll take some future case after the next census to force the justices to face the issues left unresolved. 

Former Cato intern (and future legal associate) Tommy Berry and I have now published an essay in the Federalist Society Review explaining how the Court “shanked” that punt by misreading constitutional structure and application. Here’s a sample (footnotes omitted):

In Evenwel, the Court decided that it is acceptable for a state to ignore the distinction between voters and nonvoters when drawing legislative district lines. According to the Court, a state may declare that equality is simply providing representatives to equal groups of people, without distinction as to how many of those people will actually choose the representative. A state may use this constituent-focused view of equality because “[b]y ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.”

But ignoring the distinction between voters and nonvoters achieves a false picture of equality at the expense of producing far more serious inequalities. Rather than placing nonvoters and voters on anything approaching an equal political footing, it instead gives greater power to those voters who happen to live near more nonvoters, and less power to those who do not.

As we argued before the decision came down, the framers of the Fourteenth Amendment recognized that granting such extra voting power runs the risk of harming the very nonvoters to whom it ostensibly grants representation. This recognition manifested itself in the enactment of the Fourteenth Amendment’s Penalty Clause. In both ignoring that clause and oversimplifying the debates over the Fourteenth Amendment, the Court’s opinion paints an incomplete picture of constitutional history.

Read the whole thing. For more, see Tommy’s blogpost on our article, as well as our earlier criticism of Justice Ginsburg’s majority opinion for misreading the Federalist Papers.

Do Don’t Not Vote

Jim Harper provides an excellent response to the too-smart-by-half libertarians who pride themselves on not voting (and mock those who do). I’ll add another benefit of voting Harper does not mention explicitly.

The usual anti-voting spiel goes like this. Your vote has zero chance of being the deciding vote. So what’s the point? You’re totally wasting your time. Not voting is smart. You should be smart. Like me. Harper responds by noting that the non-deciding vote also has value:

Votes are a dazzling roman candle of information supplied to elected officials, their staffs, political parties, journalists, opinion leaders, and future candidates, to name a few. All these witnesses to elections incorporate vote information—not just outcome, but win/loss margins—into their actions and assessments well beyond election and inauguration day.

Margins of victory matter: to candidates, donors, other officials, etc.

Yet voting has value apart from its direct effect on vote totals for various candidates or referenda. This is principally because many people see voting as an act of caring. If you vote, they think you care about your community/state/country. If you don’t, they think you don’t care and – listen up, libertarians – they will be less open to your ideas. Libertarians who want to influence other people might want to drag themselves to the polls if only so that they can later pass this test.

One might object that it makes no sense to use voting as a signal for caring. Perhaps, but it makes no less sense than using non-voting as a signal for smartness. We don’t get to choose how others interpret voting. Sometimes, if you want to get anywhere with people, you obey the local customs, even if they seem silly. 

I am not recommending that everyone always vote. There may be principled reasons not to vote. Many people who vote maybe shouldn’t. But we should put to rest the “deciding vote” objection.

Your vote matters. Not as much as it would under instant-runoff voting, but it still matters.

Don’t Not Vote

A fair number of libertarians pride themselves on not voting. Among their reasons: One person’s vote is so unlikely to influence the outcome of an election that almost any alternative action is a better use of time. That reasoning has appealing simplicity. For consistency’s sake, our hyper-rational non-voting friends should refrain from applauding at performances or cheering at games. People who want to see liberty advance, and not just bask in the superiority of libertarian ideas, should probably vote—and vote loudly.

News that former Massachusetts governor William Weld desires to join Gary Johnson on the Libertarian Party ticket makes the question of libertarians’ voting practices particularly salient in 2016. The major parties’ candidates are the least popular ever.

Here’s a reason why non-provision of the pivotal vote is not a reason not to vote: Voting does more than elect candidates.

Votes are a dazzling roman candle of information supplied to elected officials, their staffs, political parties, journalists, opinion leaders, and future candidates, to name a few. All these witnesses to elections incorporate vote information—not just outcome, but win/loss margins—into their actions and assessments well beyond election and inauguration day.

Here’s one use of vote information that I’m familiar with as a former Hill staffer: Folks in Congress assess each other’s strength and weakness according to electoral margin of victory. When a one- or two-term member of Congress is re-elected by a wide margin, it’s a signal that he or she is there to stay. That member is going to have a vote for a long time and will acquire more power with increasing seniority. The stock of that person and his or her staff rises, and they immediately have more capacity to move their agenda.

The process is the same in reverse. When a longer-serving member suffers a narrow win, that signals blood in the water. That member is likely to draw a more serious, better funded challenger in the next election, and defeat becomes much more likely. The stock of that politician drops, and the ability of that person’s office to advance an agenda falls with it.

Immigrant Attitudes toward Libertarian Values

A recent paper by psychology Professor Hal Pashler of UCSD analyzes General Social Survey (GSS) data and finds that immigrants are less libertarian than the U.S.-born.  This is an interesting paper and professor Pashler notes the many limitations of his findings – mainly that the GSS doesn’t ask many questions that are good barometers of libertarian ideology.  But that hasn’t stopped non-libertarian immigration opponents from using the paper’s conclusion to try and convince libertarians to oppose immigration reform: “With increasing proportions of the US population being foreign-born, low support for libertarian values by foreign-born residents means that the political prospects of libertarian values in the US are likely to diminish over time.” 

Here are some reasons why Pashler’s paper shouldn’t worry libertarians much or convince many to oppose immigration:

First, libertarians generally support immigration reform, the legalization of unauthorized immigrants, and increasing legal immigration because it is consistent with libertarian principles – not because immigration reform will lead to breakthrough electoral gains for libertarian candidates.  The freedom for healthy non-criminals to move across borders with a minimum of government interference is important in and of itself.  General libertarian support for immigration reform does not depend upon immigrants producing a pro-liberty Curley effect – as nice as that would be. 

Second, under free immigration the freedom of current Americans to sell to, hire, and otherwise contract with foreigners would increase substantially.

Third, the ideological differences between the U.S.-born and immigrants are relatively small for some of the questions Pashler analyzes.  For instance, the GSS asked whether the government should do more or less to reduce economic inequality with a response of “1” meaning the government should do much more and a score of “5” meaning the government should do much less.  The average score for immigrants was a 2.75 while the average score for the U.S.-born was 3.18 – a statistically significant difference but hardly one that will push the U.S. toward central planning.

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.

Accountability in the New Congress

Just over a week ago, Politico ran a story noting that Justin Amash, a newly-elected House member from Michigan, had already voted “present” more often than his predecessor had in eight years. The story suggested that Amash was trying to avoid electoral responsibility for tough votes by voting present. In general, the story suggested that his “present” votes were a failure in some way to meet his responsibilities as a representative.

You can read Amash’s take on all this at his Facebook page. Although I have never met Amash, I have followed his political career over the past year or so. In Michigan, he emphasized  transparency and accountability. He reported and explained his votes on his Facebook page. He is continuing to do that here in Washington. Does that sound like a politician trying to avoid accountability?

Politico also reported some of Amash’s reasons for voting “present”: when he does not have “reasonable” time to review the legislation, when called upon to choose “between programs he hasn’t been given time to study,” when he has “procedural or constitutional concerns about a piece of legislation that has desirable ends,” and when he has a “substantial conflict of interest” — a situation that has not yet happened.

Amash sounds like a representative trying to take his obligations seriously. Apparently he feels he owes his constituents his best judgment about bills before the House and, absent enough time, he refuses to delegate his judgment to party elders or to mere caprice. It says something about the culture of the capital that Amash’s sense of fidelity to those who elected him occasions complaint.

The latest from Politico on Justin Amash confirms this impression. Among House GOP freshmen, he is the least likely to vote for the position taken by a majority of his class. That might be cause for concern since the GOP freshmen seem intent on cutting government spending. But I really doubt that Amash has gone native in DC. He is voting with the other GOP freshmen 70 percent of the time. It is possible that the other 30 percent of his votes reflect a concern for liberty or what he sees as the good of his constituents. Sometimes there is a great difference between being a party man and being a friend of liberty and a faithful representative.

More than a few Washington insiders are probably saying Amash is off to a rough start in his congressional career. I disagree. What I have seen so far, including these criticisms of him, confirm what I have thought for some time: Justin Amash is one of the most interesting and potentially important representatives to come to DC in a long time.