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.