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In Search Of The Silver Bullet For One-Person, One-Vote Reapportionment

Jun 18, 2009
If you are very quiet, you can hear the knives coming out.

The 2010 census is just around the corner, and with it reapportionment wars and lawsuits. Costly -- very costly -- wars and lawsuits...

In these times of economic crisis, is there a way in which public energy and money -- your energy, your money -- can be saved for something else? Schools? Infrastructure? Social services? Law enforcement? Energy conservation and development? Health care?

There is a way. But it requires refuting an age-old maxim: you can't mix apples and oranges.

The crux of reapportionment wars lies in the "one-person, one-vote" principle. Politicians, lawyers, and judges simultaneously curse and revere it.

The principle means equality among individuals in their right to vote -- "that every voter is equal to every other voter in his State when he casts his ballot..." (Supreme Court, Gray v. Sanders, 1963). Equal rights are unconstitutionally impaired when the weight of a vote "is in a substantial fashion diluted when compared with votes of citizens living in other parts of the state." (Reynolds v. Sims, 1964).

The one-person, one-vote principle, then, has as a reference point the relationship among districts -- not inside one district. That distinction clears up a lot of confusion. If you and I vote in the same district, our votes always have the same weight. They are counted equally. Two people, two votes: the one-person, one-vote principle does not come into question because it is fully realized.

But what happens when the weight of your vote is compared with the weight of a vote cast in another district?

Again, tempers flare up in a Pavlovian reflex wherever reapportionment appears. To avoid as many bad feelings as possible, I am going to take a concrete case from long ago to illustrate why one-person, one-vote apportionment does not exist in America.

In 1982, a panel of three federal judges tossed out the state house reapportionment plan passed by the New Mexico State Legislature. The house district populations varied too greatly, the judges ruled, creating a "constitutionally impermissible" result violating the one-person, one-vote principle. The judges' remedy was simple, direct. "The Legislature," they ordered, had "to construct the legislative districts as nearly of equal population as is practicable."

What literally counted for the judges, then, was one thing and one thing only: warm bodies. For reapportionment purposes, that meant: divide New Mexico's population (1,302,894) by the number of state house districts (70), and you have the population of the ideal house district: 18,613. When you reapportion, keep all district populations as close as possible to that number, and the one-person, one-vote principle will be realized.

The Legislature reapportioned, rigorously following the judges' order.

Was the one-person, one-vote principle realized? Were the weights of votes cast in state house district elections in New Mexico roughly equal?

This is what happened in real life:

In 1984, 8,723 people voted in the state representative's race in House District 30 in Bernalillo County (John McMullan, incumbent). Only 3,776 people voted in the state representative's race in House District 33 in Dona Ana County (Ralph Hartman, incumbent).

Conclusion: a vote in Hartman's district had more than twice the weight of a vote in McMullan's district.

There were many other cases of gross differences. What went wrong?

In a word: the judges' warm body reapportionment solution -- make the districts equal in population -- was "one-person, one-person," not "one-person, one-vote," reapportionment.

That one-person, one-person reapportionment, by the way, ran counter to previous U.S. Supreme Court rulings:

In Gaffney v. Cummings (1973), the Court held that "total population, even if absolutely accurate as to each district when counted, is nevertheless not a talismanic measure of the weight of a person's vote...The United States census is more of an event than a process. It measures population at only a single instant in time. District populations are constantly changing, often at different rates in either direction, up or down. Substantial differentials in population growth rates are striking and well-known phenomena. So, too, if it is the weight of a person's vote that matters, total population -- even if stable and accurately taken -- may not actually reflect that body of voters whose votes must be counted and weighed for the purposes of reapportionment, because 'census persons' are not voters [sic]. The proportion of the census population too young to vote or disqualified by alienage or nonresidence varies substantially among the States and among localities within the States."

In accordance with the reapportionment ordered by the judges, the populations in the two New Mexico house districts in question were roughly equal. But a vote in Hartman's district had substantially more weight than a vote cast in McMullan's.

When it takes more than twice as many votes to win in one district than in another, the weight of the votes cast is not equal. It is just that simple, direct.

Why, then, were so few votes cast in Hartman's district relative to McMullan's? Hartman's district was on the Mexican and Texas borders. Many of its residents were ineligible to vote in New Mexico. But when reapportionment was made strictly on raw body counts, the eligible/ineligible distinction was lost.

Completely, totally lost.

In another decision, the Supreme Court was even more straightforward about the lack of any requirement to reapportion solely on the basis of warm bodies. In Burns v. Richardson (1966) the Court declared that it never "suggested that the states are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with Equal Protection Clause is to be measured."

There is, of course, a second option for reapportioning. It is in the second half of the one-person, one-vote principle:

Conceivably, a reapportionment plan could ignore the census population entirely. It would start with the total voter turnout in the last election. Staying with the New Mexico example, 408,621 votes were cast statewide in 1986. (1) To determine the ideal house district size, divide that turnout figure by the number of house districts. 408,621 divided by 70 = 5,837. (2) To reapportion, take each precinct's total votes cast, then assemble precincts to build each house district as close as practicable to 5,837 votes.

The judges said: Make the populations equal and ignore the votes. The approach just outlined would make the votes equal and ignore the population. Instead of the judges' "one-person, one-person" apportionment, the second method would be "one-vote, one-vote" apportionment.

Clearly, using only votes cast would reduce the extreme variation in turnouts across districts. The Hartman/McMullan disparity would instantly disappear.

The price would be too great, however. "One-vote, one-vote" apportionment would create excessive deviations in district populations. Why? For the same reason "one-person, one-person" apportionment does not work: different areas have different voter turnouts. "Census persons," the Supreme Court correctly observed, "are not voters."

To conclude: the one-person, one-vote principle confronts all of us with a conundrum: how to mix apples (persons) and oranges (votes). Two different things.
About the Author
Thomas Belvedere is the pseudonym of a top consultant to senators, representatives, governors, and the media. An accredited expert witness in federal court, he has a Ph.D. in political science. He authored "The Source of Terrorism: Middle Class Rebellion" available at http://www.booklocker.com/.
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