Friday, April 08, 2016

Justifying One Person One Vote

by Michael Dorf

The headline from Monday's SCOTUS ruling in Evenwel v. Abbott was that the Court unanimously construed the constitutional obligation of one-person-one-vote (OPOV) to allow the drawing of electoral lines to reflect roughly equal numbers of people, rather than, as the plaintiffs had argued, to require roughly equal numbers of voters. There were, however, two wrinkles.

Wrinkle One: Justice Ginsburg's majority opinion did not address the argument put forward by Texas that the Constitution permits equal-voter districts or the argument by the federal government that the Constitution requires equal-population districts (and thus forbids equal-voter districts except in the coincidental circumstance when equal-population districts are also equal-voter districts). Concurring in the judgment, Justice Alito went further, rejecting most of the federal government's arguments for its position. Like the majority, Justice Alito did not officially purport to resolve the disagreement between Texas and the U.S. on an issue not before the Court, but he leaned towards Texas. His concurrence (joined in part by Justice Thomas) practically invites states to experiment with equal-voter districts.

Replacing equal-population districts with equal-voter districts would systematically favor Republicans, because the districts with a higher ratio of people to voters (or to people eligible to vote) tend to be urban, and thus more Democratic. The major exception is that some rural districts include disenfranchised prisoners in their population base, so shifting to equal-voter districts would eliminate the "prisoner bonus." But that exception is not sufficient to outweigh the overall electoral advantage that would accrue to Republicans from switching from population-based to voter-based districting. Justice Ginsburg can't really be faulted for leaving that door potentially open. Doing so might well have been the price of holding together a 6-vote majority. But it means that there could be mischief down the road--especially if a Republican president gets to fill the vacancy.

Wrinkle Two: Justice Thomas wrote a concurrence in the judgment in which he questioned OPOV itself as ungrounded in the Constitution. He wrote that "in embracing one person, one vote, the Court has arrogated to the Judiciary important value judgments that the Constitution reserves to the people." In his view, there is no principled way to decide between equal-population districts and equal-voter districts. Here I want to push back against Justice Thomas's position in three ways.

First, it's important to realize just how radical Justice Thomas's position is. In attacking OPOV, he's not just saying that states can choose between equal-population districts, equal-voter districts, and equal-eligible-voter districts. He's saying that states can adopt manifestly unequal districts. The only limit he sees is the clause of the Constitution that guarantees to each state a republican form of government. But legal challenges under the Guaranty Clause are traditionally deemed non-justiciable, and Justice Thomas gives no indication that he would change that rule. Thus, so far as Justice Thomas is concerned, there is no judicial check on state districting.

Second, Justice Thomas's position relies on a bit of bootstrapping. He says the Constitution leaves to "the people"--by which he means the people of the several states--the choice of how to draw legislative districts. But the people do not act directly. They only act through elections, either directly via referendum in some states or via their elected officials. Where the objection is that the elected officials do not truly represent the people, it is no answer to say that the people's elected representatives have chosen the system for representing the people. Where, as in Evenewel or such Warren Court classics as Baker v. Carr and Reynolds v. Sims, the voters complain that the legislature is chosen on an undemocratic basis, saying "take your case to the legislature" misses the point.

At the very least, Justice Thomas needs to provide some reason to think that legislators will vote against their self-interest to change the basis for elections. Such arguments are possible. Jeremy Waldron has noted that Parliament reformed its rotten boroughs without judicial review. Justice Thomas might make an argument that slow progress in this way is preferable to judicial intervention, perhaps by pointing to the adoption of various constitutional amendments that expanded the franchise and thus put existing elected officials at risk. There are counter-arguments about justice delayed, of course. However one thinks this question should be resolved, mere invocation of "the people" is insufficient to grapple with the problem.

Third, Justice Thomas makes too much of the need for a principled basis for choosing a constitutionally required basis for legislative districting. The Evenwel majority pointed to constitutional text, history, and doctrine as the basis for equal-population districts, but Justice Alito and to an even greater extent the plaintiffs pointed to the logic of vote-dilution as the basis for equal-voter districts. I think one could plausibly find one or the other more persuasive. There's at least as good an argument for, say, population, as there is for many of the other doctrinal lines the Court's cases draw. The fact that some people would disagree with the choice of equal-population districts doesn't make that choice unprincipled. And even if it did, so what? Once the Court settles on a line, administrability is more important than having a principled basis for that line in the first place.

John Hart Ely made that point very effectively in Democracy and Distrust. He acknowledged the same normative considerations that Justice Thomas does in the latter's Evenwel concurrence. Ely thus thought that on grounds of principle, it is hard to say that OPOV is clearly superior to a weaker rule: "simply don't systematically frustrate the majority will"--which is how Ely characterized Justice Stewart's position in the post-Reynolds cases. (Note that Justice Stewart voted with the majority in Reynolds but got off the OPOV boat in later cases. His view was thus more sympathetic to judicial review than is the view espoused by Justice Thomas in Evenwel.) But Ely nonetheless thought that OPOV was a better principle than Stewart's alternative on administrability grounds. OPOV is, or at least can be turned into, a clean line.

To close the loop, just as OPOV is a better, because cleaner, line than the mushy approach of Justice Stewart, so the Court could settle on an equal-population measure of OPOV even absent a slam-dunk argument for population rather than voters as the measure. Sometimes it's more important that a matter be settled than that it be settled according to a principle. Or as Ely put it in characterizing OPOV and other Warren Court doctrines: "Sometimes more is less."

N.B.  Most weeks when one of my Verdict columns appears I run a blog post on a related subject. This week, my column appeared on Wednesday. In it, I compare the post-oral argument order in the Zubik case to a settlement conference. I may have more to say about that in a later blog post, but I'm not going to try to find a connection between the column and this post.


Hashim said...

On your first point, what's so "radical" about allowing States to use legislative apportionment to impose a structural constraint on the tyranny of the numerical majority? How is that any more "radical" than the U.S. Senate's apportionment? Indeed, how is it any more "radical" than judicial review itself? All three are structural constraints on the tyranny of the numerical majority. And all three were longstanding practices throughout this Nation's history, until the Warren Court quite "radically" invented OPOV out of thin air in the 1960s (quite ironically using one constraint on tyranny of the numerical majority to invalidate another constraint on tyranny of the numerical majority).

On your second point, even assuming that "the people" think that unequally apportioned districts are a bug rather than a feature, why does CT have to show that the people have an effective remedy in order for the judiciary to stand down? His (quite correct) point is that the Constitution is completely silent on this issue (apart from the U.S. Senate standing as an obvious counter-example to the supposed vice of unequal apportionment), thus leaving the people to deal with the issue *as best as they are able.* CT need not and plainly does not accept a theory of the Constitution whereby judicial intervention is appropriate whenever the democratic process is purportedly incapable of fixing an alleged problem. Otherwise we could have skipped that whole Civil War, and just had the Supreme Court magically conclude that slavery was somehow unconstitutional, notwithstanding that it is expressly sanctioned in the Constitution (much like unequal apportionment is sanctioned for the U.S. Senate).

Hashim said...

PS. In the last sentence, I should have been clearer that what I meant was "whole Civil War and resulting amendments to the Constitution"

Joseph Simmons said...

I'm with Hashim in not seeing what the problem is. The idea that some issues are non-justiciable even if expressly addressed by the Constitution, unlike this issue, can consternate. Yet it's hardly radical and we can appreciate the values undergirding non-justiciability, not least among which are federalism and the limits of judicial authority. You say that Thomas is bootstrapping, but to support your position it seems we must presume the correctness of OPOV for providing adequate representation. I don't think Thomas needs to consider how legislators might potentially vote against their self-interest. That kind of spelunking doesn't seem very helpful as any conclusion is mere supposition, but you concede there are examples of legislators voting against their self-interest anyhow. You're right that a decision in either direction can be principled, but not in a constitutional sense. As you suggest, it would merely be the Court enforcing its will. I do not see why, on this issue, there needs to be finality.

Joe said...

Justice Thomas wants to change what has been in place for fifty years. This would be a "radical" change; "very new and different from what is traditional or ordinary." And, yes, what is "ordinary" NOW isn't the same as it was in the past. Segregation being allowed would be "radical," even if traditionally it was okay.

Now, on the merits, you might think it is a good change to support Thomas' view. That isn't the same thing. Next, what the Constitution is "quite silent" about is a matter of dispute. The "one person, one vote" side argues that it does advance constitutional principles. That the U.S. Senate (which Madison felt a very unfortunate compromise) is an exception for specific reasons. Again, one might disagree. It's a big dispute with a lot of verbiage spilled including Ely's work.

Next, the argument is not "whenever" normal democratic process is "purportedly" unable to settle something that the courts should step in. That is an overly simplistic reading of the argument set forth. This might explain the Civil War example, tossed out with the usual disdain as an obvious example of how shallow the other side's reasoning is.

Michael C. Dorf said...

What Joe said.

Also, as I say in the post, I do think that if one were to treat the question as a matter of first impression, it would be possible to make an argument against the charge that "the people" lack the means to correct a self-entrenching defect. As I note, Waldron has made that argument. I disagree with him, because it often takes decades to overcome these sorts of problems in the political process. (The facts of Baker and Reynolds illustrate this fact.) But Justice Thomas does not even attempt to make the argument.

Hashim said...

Mike -- perhaps i missed it, but I don't think either you or Joe responded to my point that the reason "Thomas does not even attempt to make the argument" is because he has no need to, because whether the people possess "the means to correct a self-entrenching defect" is legally irrelevant to whether the Constitution prohibits such "defects." Nothing in the Constitution purports to prohibit "self-entrenching defects", or even some unspecified sub-set of them, so it's no surprise that Thomas doesn't bother to address whether in fact unequal apportionment can be so characterized. (As Neil is constantly pointing out in his posts, there'a a real rhetorical downside to refuting irrelevant premises -- the mere act of doing so might suggest that the premise actually needs to be refuted, no matter how clearly the opinion disclaims otherwise.)

Hashim said...

Joe -- I look forward to your explanation of why slavery was more amenable to correction through the political process than unequal apportionment (or otherwise less worthy of overruling through judicial review). That seems quite counter-intuitive for many reasons, including most obviously that slavery was oppressing a minority group in a way that was essential to the economy that benefited the majority, whereas unequal apportionment by definition injures the majority (who thus can use things like the referendum process and state constitutional amendments to counter-act the entrenched legislature -- to give the argument that Mike keeps asking for).

Marty Lederman said...

It's decidedly a side-point, but remains an important one, I think: slavery is *not* "expressly sanctioned in the Constitution." Whether the Court would have been justified in declaring it unconstitutional before the Civil War is, of course, a different question (and, of course, pretty much beside the point, because the Civil War almost certainly would have been necessary to resolve the question regardless of anything the Court said).

Joseph Simmons said...

I too am in the McKayla Maroney camp on Joe's response.

One point I'm not clear on is that if legislators represent voters and if voters want OPOV, why wouldn't that be a force to be reckoned with? Or would legislators somehow be more beholden to the many non-voters if only they counted?

Hashim said...

Marty -- Article I, Section 9 expressly prohibited Congress from banning the slave trade prior to 1808. How is that not expressly sanctioning the practice? Are you suggesting that the Founders prohibited Congress from banning a practice that was unconstitutional (or that the SCt could so conclude)? Do you think it would have been remotely defensible for the Supreme Court in 1807 to hold slavery unconstitutional?

Shag from Brookline said...

Here's Art. I, Sec. 9:

"The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."

The words "slave" and "slavery" were not employed in the Constitution until the Reconstruction Amendments. There were several provisions pre-Civil War that protected slavery, including in the Bill of Rights. Lysander Spooner in a detailed paper in the 1840s took the position that slavery was unconstitutional. Abolitionist Wendell Phillips challenged Spooner's arguments. The Court, pre-Civil War recognized protections of slavery in the Constitution.

Hashim said...

Seriously, Shag? The "importation" of "persons" is necessarily referencing slaves, since they're the only types of "persons" who are "imported" (like chattel), rather than "migrating" (like free people). But if it makes you feel better, I'll drop the adverb "expressly" and replace it with "clearly", since there's no dispute that Art. I, Sec. 9 prohibited Congress from banning the slave trade pre-1808. My point still stands though.

Shag from Brookline said...

Hash, apparently you caste things into a different light (or dark) than I do. I merely made an observation on Marty's "side point" that you responded to with your rewording of Section 9, perhaps in the manner of a flexible originalist/textualist. Hash, you don't make me feel better as I understand where you are coming from (non geographically) with your views on this and other posts at this Blog. But Lysander was serious about this and other matters that have impressed Randy Barnett.

Michael C. Dorf said...

I did not mean to say (and do not believe I said) that all self-entrenching practices are, ipso facto, unconstitutional. Rather, my second point built on my first. That is, I took Justice Thomas to be reaffirming the pre-Baker view that challenges to apportionment are non-justiciable. The literature on Baker, including but hardly limited to Ely's work, makes the point that non-justiciability is particularly problematic where the constitutional complaint challenges the very mechanism by which the people can achieve change without resort to the courts.

Having said that, I should also say that I agree with Ely that the difficulty of correction through the political process is properly a factor in constitutional adjudication. Where the import of the Constitution is unclear, the fact that there are systematic obstacles to change through the legislative process counts in favor of recognition of a constitutional violation. That's not just my view, nor is it just Ely's. As I wrote in 2005 and as remains true today (as illustrated by Evenwel), Ely's view is the best justificatory account of the work of the Warren Court and of the overall body of constitutional law we have:

Hash, I take you and Justice Thomas to be saying that this body of law is wrong because not sufficiently rooted in the Constitution. Fair enough. But given the Elysian character of both the substance of con law and the rules of justiciability, naked appeals to "the people" in an area of systemic blockage need an argument if they are to prevail.

Joseph Simmons said...

If we cannot appeal to the people, let us appeal to the voters!

Joe said...

Joe -- I look forward

Glad you appreciate my comments.

to your explanation of why slavery was more amenable to correction through the political process than unequal apportionment (or otherwise less worthy of overruling through judicial review).

You might be looking forward to a response to this but it shouldn't be based on the supposition I actually said it.

That seems quite counter-intuitive for many reasons, including most obviously that slavery was oppressing a minority group in a way that was essential to the economy that benefited the majority, whereas unequal apportionment by definition injures the majority

Hashim argued slavery was expressly assumed by the Constitution as was the U.S. Senate. Now, antebellum anti-slavery arguments were made to get around that but let's grant it. This would be one difference -- rotten boroughs, unlike slavery, could be argued to be in violation of constitutional principles. The U.S. Senate would be a special case explicitly addressed by the Constitution.

The assumption slavery was accepted along with no 13th or 14A would make the equal protection type arguments framed here a bit more tricky to make. OTOH, again, it could be argued that Art. I assumes equal apportionment (such is in fact what the USSC eventually argued) and the Guarantee Clause might be used to apply to state legislatures. Now, again, antebellum before the 14A (used by the Supreme Court as to state legislatures) that would be a harder argument to make given the state of the law at the time. But, that would be one way to go. If I said that.

(who thus can use things like the referendum process and state constitutional amendments to counter-act the entrenched legislature -- to give the argument that Mike keeps asking for)

If the referendum process was available, which Justice Tom Clark found out in Baker v. Carr was not, which is a major reason he changed his mind. Usage of state constitutional amendments, again if that was allowed by popular means as compared to the entrenched mal-apportioned legislature, would be forcing them to use special, harder means, not normal political processes. The argument being that judicial review is more appropriate when the latter is not working. Usually, you could rely on majority rule. But here, minority rule is enmeshed.

But, if we use the Equal Protection Clause, surely, race based discrimination would be an easier case to make. There being no EPC in antebellum times, and slavery assumed to be granted by the Constitution, things would be different. The material to work with in certain cases would make one person, one vote possibly an easier argument to make.

Joe said...

Or, we can go with:

Hashim said...

So the Guarantee Clause supposedly supports a "constitutional principle" against unequal state legislative districts, but not against state-sanctioned slavery? That's fairly remarkable. After all, the Guarantee Clause protects a "Republican form" of Govt. A "Republic" is *not* a pure democracy, but a representative democracy -- i.e., the majority does *not* rule directly. Yet somehow the Guarantee Clause has a principle in favor of indirect majority rule through equally apportioned state legislative districts, but a principle that does not disfavor *enslaving* some people within those districts. Quite the "Republic."

Likewise, it'd be pretty remarkable for Art. I to support a constitutional principle of equal apportionment, since the constitutional rule it set forth for *inter-state* apportionment required counting slaves as three-fifths of a person. Thus, if Art. I had anything whatsoever to say about *intra-state* apportionment (though it did not), that would mean that the South had to apportion Congressional districts using the three-fifths compromise (which they did not, and which no one ever thought they did, as far as I'm aware).

In short, there's no better textual hook for a constitutional principle against unequal apportionment than against slavery, and both are textually sanctioned by the Constitution. Moreover, as you seem to concede, there's no better anti-entrenchment argument against unequal apportionment than against slavery. So OPOV is on no firmer constitutional ground than the SCt invalidating slavery pre-13A, which is to say no ground at all.

Joe said...

As I said: "Now, antebellum anti-slavery arguments were made to get around that but let's grant it." And, yes, the Guarantee Clause was one. So, not so remarkable.

Arguments could be made, and in hindsight, some of them seem fairly reasonable, but it was an outlier then. In a day when even using the 1A to protect one's right to send anti-slavery material thru the mails was an uphill battle, yes, "remarkably" there was a racial double standard in applying constitutional principles.

Also, though the text intentionally was used to not explicitly do this that much, the Constitution specifically assumes slavery exists such as the 3/5 Compromise. But, that doesn't all by its lonesome make equal districts as a whole not a constitutional concern. It is an EXCEPTION. It doesn't mean counting urban whites by 3/5 was acceptable. Likewise, the Constitution requires a representative minimum for each state and breaks things down by states. Plus, there is a specific rule for the U.S. Senate. Again, this doesn't by itself mean state senates could follow the same rules, noting again the Supreme Court used the then non-existing 14A for that.

But, taking these rules into consideration, using the text and general principles behind it, an equal representative rule can be developed. I will not try to summarize in a paragraph how. Wesberry v. Sanders provides one argument. Again, there is a rejoinder. There was after all a dissent in that case. In short, though, merely the existence of slavery didn't change that. Equality among white men was still a thing even though they denied it for blacks.

And, it isn't merely bare text but development of the law and judicial review over a span of time. Plus, things like a determination a civil war was illegitimate by the test of history. Things were different in antebellum times there; use of the courts to avoid the Civil War was therefore not quite the same thing.

"Moreover, as you seem to concede, there's no better anti-entrenchment argument against unequal apportionment than against slavery."

I didn't really concede this. I specifically noted that the assumption was that slavery was explicitly accepted by the Constitution. Not so across the board for unequal apportionment; I noted a major exception -- U.S. Senate -- was seen by Madison himself as an unfortunate compromise. So, using that alone to apply inequality across the board is not necessary. That would be a tad remarkable.

But, slavery is gone. Unequal apportionment is easier to attack now & changes in the law makes using the courts easier as well. Still, as I noted, even as to slavery there was not "no ground" at all. How strong the argument was can be left to others.

Joe said...

Or, we can go with: