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Monday, December 7, 2015
Evenwel: Will Supreme Court Overturn 50 Years of Hawaii Apportionment Law?
By Robert Thomas @ 3:45 PM :: 5088 Views :: Military, Office of Elections

Lessons From Takings Law For The "One-Person, One-Vote" SCOTUS Cases

by Robert Thomas, InverseCondemnation, December 7, 2015

Tomorrow, the Supreme Court is hearing oral arguments in two election law cases, Evenwel v. Abbott, No. 14-940, and Harris v. Arizona Ind. Redistricting Comm'n, No. 14-232.  We've covered the issues presented by these cases several times, so please forgive the continuing detour from takings law that we take whenever we get into our other favorite area, election law.

Evenwel is the sleeper case of the Term,  and may finally answer a question the Supreme Court has dodged for over fifty years, involving the seemingly mundane issue of who can states count when they reapportion their legislatures: all residents? U.S. citizens? Those eligible to vote? And who must they count? Think back to your Con Law I class, and the "one-person, one-vote" rule from Reynolds v. Sims, 377 U.S. 533 (1964), the case which first announced that rule, and the resultant Equal Protection requirement that both houses of state legislatures be apportioned according to population. That decision totally rewrote American politics (some states had set up one house of their legislature to mirror the U.S. Senate, with at least on representative for each county), and moved the locus of power to urban population centers.

That decision was followed closely by Burns v. Richardson, 384 U.S. 73 (1966), a case originating in Hawaii, in which the Court reaffirmed that rough equality of "population" is the measure of constitutionality, but again refused to define which "population" it meant. There, the Court upheld Hawaii's count of registered voters, concluding that it was a rough proxy for both total population and state citizens because Hawaii's voter registration numbers were so high. Because there was no proof the the resultant reapportionment drew districts that were different from districts drawn using total population or state citizens, the count of voters was upheld.

In the intervening 50 years, the Court has not clarified that decision, nor specified which "population" it requires be counted, if any, despite several cases squarely presenting the issue (including ours, from 2014). Most states (48) count everyone.

Now comes Evenwel, a case which challenges Texas' use of total population. That population, you see, includes those not eligible to vote (such as aliens), and their inclusion in the reapportionment population results in district lines that dilute the power of registered voters, or those citizens of voting age population. Citizens whose voting power was diluted by virtue of them being put into overpopulated districts sued, asserting that reapportionment could not be accomplished using total population, when doing so would impact the power of voters. "One-person, one-vote" is the mantra, after all, and the focus of many of the Court's decisions citing this rule are on preserving voting equality.

And that is the issue before the Court tomorrow. Will it say that state's must count everyone? Must only count registered voters, or some other similar metric? Or will the Court conclude, like we argued in our amici brief, that states can choose any population metric, provided they meet certain criteria?

"One-person, one-vote" has become a kind of a mantra, but one without a lot of specific meaning. The plaintiffs are asking the Court to uphold the plain meaning, and if it really meant what it said about the "vote" part. The arguments on the other side, by contrast, are more focused on "sky will fall" claims, and arguing that a ruling against Texas will result in Hispanics and children being "disenfranchised," and the like. They also claim it is impossible to accurately count the citizen voting age population. And here's where our experiences as takings lawyers may come in, because these competing claims remind us of two threads in regulatory takings doctrine:

  • Lesson #1: From 1980 to 2005, we all operated under the assumption that the Court meant what it said in Agins v. City of Tiburon, 477 U.S. 255 (1980), when it held that a regulation may work a taking when it either (1) deprives the owner of all economically beneficial use, or (2) fails to substantially advance a legitimate state interest. And for years, taking the Court at its word, we all tried to apply the "substantially advance" in takings cases, repeating the Agins two-part test as a mantra, much like "one-person, one-vote." Until 2005, when the Court in Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) issued a huge mea culpa, and held that the language in Agins about substantially advance was just inartful writing, and that wasn't a takings test at all. So be wary of relying too much on the Court's mantras. What the Justices sayeth, they can later disclaim.
  • Lesson #2: The Court doesn't always pay heed to "Chicken Little" arguments like the Evenwel appellees are relying on. We takings lawyers have heard for decades how the sky was going to fall, the whole planning system was going to collapse, and that courts would become zoning boards of appeals, if regulatory takings arguments were accepted. And, like clockwork, this argument reappears in every takings-related case presented to the Court. But recently, the Court has grown weary of these arguments, noting in Brandt and Koontz that the sky would not fall.

And what about the other case, Harris v. AIRC? That one asks whether, in addition to "traditional redistricting principles" which allow a deviation from absolute population equality (such as geography, traditional political boundaries, communities of interest), whether reapportionment can also consider political motives and a desire to obtain DOJ pre-clearance under the Voting Rights Act. That case will be argued just prior to Evenwel.

We're in town to attend the arguments, and will have a report following.

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