Monday, December 7, 2015

SCOTUS May Change How Congress Represents America

The U.S. Supreme Court will hear oral arguments Tuesday in a case that could cascade far-reaching changes in the way every election district in Texas — and every state in the nation — are drawn.

The case, Evenwel v. Abbott, challenges Texas’ current method for drawing the lines apportioning state Senate districts. Texas, and every state in the union, draws election districts so they are roughly equal in population. Even those who can't vote — children, non-citizens, and felons — get equal representation.

The plaintiffs in Evenwel v. Abbott, Sue Evenwel of Mount Pleasant and Edward Pfenninger of Montgomery County north of Houston, claim equal apportionment based on total population count, including children under the voting age, and particularly non-citizen immigrants, rather than just eligible voters — only adult citizens who aren't felons — leads to “gross malapportionment” of the value of their votes.

Because there are a larger number of potential "eligible voters" in Pfenninger's district than there are in Evenwel's district, Pfenninger says his vote counts for less. The case turns on the fundamental question about the role of elected representatives, asking whether they serve on behalf of everyone in their district or only those eligible to cast ballots. The share of non-citizens in the U.S. has grown from 2 percent in 1970 to 7 percent in 2013, according to the nonpartisan Migration Policy Institute in Washington. The portion of American born individuals who are under 18 years of age, and thus are not eligible voters, was 23.1 percent in 2014.

The person actually behind this case is Edward Blum, who has probably done more than anyone who does not sit on the Supreme Court to dismantle America’s civil rights laws. The pair of Texas Tea Party conservatives — Sue Evenwel and Ed Pfenninger — who filed the legal challenge to the way Texas draws its election district maps are working closely with Blum.

The U.S. Constitution was founded on the idea that all persons—whether or not they are voters—should be represented in our democracy. This is apparent in the Census Clause, which requires an “actual Enumeration” of all the people of the nation for purposes of federal representation, the disbursement of federal funds, and other ends. It is also contained in the Fourteenth Amendment, which requires “counting the whole number of persons in each State” and guarantees “equal protection of the laws” to any “person,” not merely voters. In these and other ways, the Constitution is clear the U.S. is a representative democracy open to all. Evenwel’s argument that representation should be based only on the voting population was flatly rejected during the debates over the Fourteenth Amendment, when the amendment’s framers reaffirmed total population as the Constitution’s system of representation. Thus, non-voters, including those who are ineligible to vote, still count in determining how many seats each state is allocated in the US House of Representatives. The state of Texas, like other states, use this constitutional mandate for allocating seats in the U.S.House to apportion state residents into congressional districts, as well as state legislative districts, of equal total population, based on the U.S. Census taken every ten years.

If SCOTUS rules for the plaintiffs, Texas will still be allocated its extra seats in the U.S. House for its large population of immigrant Latino and Asia non-voters who reside in the state, but it will be required to carve up its districts according to the number of "eligible voters," excluding those residents. As a practical matter, this will shift representation away from Latino and Asian communities and towards Texas’s white voters — even though Texas will still receive extra seats in Congress for Latino residents who will be completely cut out of the redistricting process. Further, if states no longer use total population to draw districts, it will make it more difficult for officials to draw "majority-minority" districts, which group certain racial or language demographics together to enhance their ability to elect candidates of their choice.

The use of total population to determine "one person, one vote" is a near-universal practice nationwide for local, state and federal elections. Before last this week, the use of total population to define "one person one vote" was considered settled territory and a common practice since a 1964 Supreme Court decision establishing that districts needed to be drawn with roughly the same population. The challengers, however, object to the idea that districts should be drawn by the total number of people living in their boundaries, rather than the number of those registered or eligible to vote. A ruling for the plaintiffs would render every current state legislative map unconstitutional — and about 21 percent of state house districts and nearly 17 percent of state senate districts would likely be redrawn under the new standards.

It’s unclear how states would ensure the reliability of data they used to count the number of eligible voters. The U.S. Census, which is conducted every 10 years as established in the U.S. Constitution, does not ask questions about citizenship or voter eligibility. The plaintiffs have suggested that states could use the Census Bureau’s American Community Survey — which is based on annual surveys of 2.5 percent of the American population on a variety of questions, including about citizenship. However, those extrapolated averages sometimes contained a margin of error even higher than the measured differences between data gathered by the Census and those estimated by the survey.

Blum, a former stockbroker and failed congressional candidate who eventually landed an unpaid fellowship at the conservative American Enterprise Institute, Blum is now the one-man-band behind the public legal advocacy organization Project on Fair Representation. Working through that advocacy organization, Blum identifies an area of law that he believes can challenged, recruits challengers — like Evenwel and Pfenninger  — to file the suit, connects them with a law firm, and fund raises among conservative donors to finance the attorneys’ fees. His past successes include two rights-gutting cases -- both decided in 2013 -- that dealt serious blows to the Voting Rights Act and to affirmative admissions policies in higher education. Previously, Blum also brought a gerrymandering case that prompted the invalidation of three of Texas’ majority-minority districts, as well as another Voting Rights Act challenge that laid the groundwork for the 2013 ruling.

Evenwel is a Tea Party activist who has supported Rep. Michele Bachmann (R-MN), Sarah Palin and Sen. Ted Cruz (R-TX), and advocates “birther” conspiracy theories at political meetings. Pfenninger is a security guard who has posted dozens of YouTube videos explaining his disdain for Jews, the Catholic Church and short-haired women, and he also believes that unicorns are real and the sun revolves around the earth.

Dozens of state legislators, mostly Democrats, have signed on to briefs with the court defending the legality of Texas' current policy — that all Texans, regardless of their eligibility to vote, should have equal representation. Among the briefs are one by the House of Representative’s Mexican American Legislative Caucus — a group of 41 state representatives, all but five of whom are Democrats — and the Texas Senate Hispanic Caucus, made up of 11 Democratic senators. Those same 11 senators filed another brief presenting further arguments in the state's favor.

The Nation
The Supreme Court ended this perversion of democracy in a series of landmark cases in the 1960s, most notably Baker v. Carr and Reynolds v. Sims, ruling that legislative districts had to be roughly equal in population. “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote,” wrote Justice William Douglas.

Chief Justice Earl Warren famously added, “Legislators represent people, not trees or acres.” The Court’s rulings shifted power from rural to urban areas, where people actually lived. In tandem with the Voting Rights Act (VRA) of 1965, the “one person, one vote” cases led to “the greatest peace-time change in representation in the history of the United States,” wrote Harvard University political scientists Stephen Ansolabehere and James Snyder. Warren called it his most important achievement on the bench.
C-SPAN - Supreme Court Landmark Case Baker v. Carr
Theodore Olson and Douglas Smith talked about the 1962 U.S. Supreme Court case Baker v. Carr, in which the Court ruled that the drawing of election districts could be considered by the Federal Courts. Chief Justice Earl Warren called this “the most important case of my tenure on the court.” The guests also responded to viewer questions and comments.
Click Here for transcript of SCOTUS oral arguements.
The Constitution requires “counting the whole number of persons in each state” for apportioning seats in the House of Representatives among the states. During oral arguements Justice Elena Kagan said it struck her as unlikely that a different rule should apply for purposes of drawing state districts.
“How you go from that being mandated,” she said, referring to counting everyone, “to it being prohibited in the state context is something that I still can’t quite work myself around.”
Justice Ginsburg mentioned a brief filed by Nathaniel Persily, a political scientist at Stanford Law School, that said there is only one constitutionally required and reliable data set: the census. But the census counts everyone, the brief said, and there are no comparable data to count eligible adult voters.
Evenwel v. Abbott - audio of oral argument before Supreme Court Justices - Docket Number: 14-940
Date Argued: 12/08/15
Play MP3 Audio:

Click Here for transcript of SCOTUSblog analysis of arguments.

Slate - The Supreme Court justices turn a simple question into something more complicated.

Supreme Court could reshape voting districts, with big impact on Hispanics

TxTrib: Analysis: In Redistricting, Somebody Will Be Slighted

Evenwel, Equal Representation Depends on Justice Kennedy

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