Who gets counted for reapportionment purposes?
Please forgive the deviation (a pun for our election law colleagues) from the blog's usual land use and takings fare, but frequent readers understand that we also have an interest in election law, and occasionally post up items of interest.
Today we filed this amici brief in Evenwel v. Abbott, No. 14-940, the case on appeal to the Supreme Court which asks which "population" states must use when reapportioning their state legislatures and drawing district boundaries. We've covered this case, as well as our own case in which we (unsuccessfully) challenged Hawaii's practice of basing reapportionment on "permanent residents" and excluding military personnel and their families. Our brief argues:
The parties in this case suggest answers to a deceptively simple question: who constitutes the body politic in the states? This question is one the Court has avoided answering explicitly for nearly half a century. Amici respectfully suggest that the Court may continue to do so, but at the same time should pro-vide guidance to state legislatures and reapportionment commissions by holding that it is always permissible under the Equal Protection Clause for states—like Texas and 47 others—to include all Census-counted usual residents in their reapportionment populations, even when this means that non-citizens and non-voters are represented in state legislatures as equally as citizens of voting age. Doing so upholds the first and overriding principle of the Equal Protection Clause, representational equality. At first blush, it may seem odd to conclude that those who are not United States citizens and those who are not eligible to vote, are deserving of representation in our state legislatures—at least until one reads the text of the Equal Protection Clause and studies its subsequent history and understands that elected officials represent all “persons,” not only citizens or those who can elevate them to office.
But this Court has never required states to apportion their legislatures using total population, although it is “the de facto national policy.” Thus, amici also note that the Equal Protection Clause and the “one-person, one-vote” principle do not require that a state include non-citizens and non-voters in the reapportionment population, if a state chooses to favor the voting equality principle instead of representational equality. What the Equal Protection Clause requires is that if a state decides to do so, it must meet a more exacting standard than the “rational basis” test. Thus, if a state bases reapportionment on some population other than total Census-counted usual residents, it must under Burns demonstrate that the resulting plan is “substantially similar” to one based on a “permissible population basis” such as total population, state citizens, or U.S. citizens. It does so by employing “[a]n appropriately defined and uniformly applied requirement” when deciding whom to count and whom to exclude.
This issue has been addressed in various ways by the lower courts. The Ninth Circuit favors representational equality over voting power and requires use of total population, while the Fourth and Fifth Circuits, allow states to freely choose whom to count and whom, or whether, to exclude. In other words, the Ninth Circuit held that states must use total population, while the Fourth and Fifth Circuit held they merely may. Amici do not suggest that states must use one or the other, but urge a more pragmatic rule: they ask this Court to hold that if a state chooses to include less than all of its Census-counted usual residents, then a reviewing court must apply heightened scrutiny and the state should be required to show a well-defined and uniformly applied standard supporting its choice and prove that it approximates a plan that is based on a “permissible population basis” such as total population or U.S. or state citizens, before it may to deprive any person—voter or not, citizen or not—of representational equality. In the absence of such a compelling showing, states must use the total Census-counted population as their reapportionment population basis.
Stay tuned if this sort of thing is your cup of tea. We'll post up the other merits and amici briefs, and have a preview of the issues soon.