Could Evenwel v. Abbott end prison gerrymandering? And other potential implications

The Supreme Court agreed to hear Evenwel v. Abbott, a challenge to Texas's state legislative redistricting plan, which draws districts on the basis of total population and not on a voter-based metrics (such as citizen voting-age population). There are important, fundamental constitutional problems with this case, which I've raised briefly elsewhere. But I want to focus on the impact of the case if petitioners succeed--because, of course, sadly, few want to spend time on what the Constitution says, or how theories of representative government change, and most just want to figure out what's in it for which groups.

Ostensibly, the case, narrowly viewed, would shift power away from voters residing in districts with a large number of non-citizens and toward districts with a large number of citizens. That's, at least, the superficial reason for the challenge in Texas. Given that ostensible fact that disproportionately more Latino voters reside in districts with non-citizens, that would theoretically mean a dilution of their political power if other voters were added to their districts. And given that Latino voters tend to favor Democratic candidates, this would tend to advantage Republicans.

This is probably, at best, partially right, and, at worst, mostly wrong.

Recall that Latino voters often qualify for majority-minority districts under Section 2 of the Voting Rights Act. The baseline there is voters, not simply population. To the extent that Latino voters have secured districts under Section 2, they will not suddenly be disempowered if districts must be drawn to include solely voters; instead, it is likely that, at least in regard to Section 2 districts, the effects would be less pronounced than immediately reported, and perhaps even marginal. (This, of course, assumes that Latino voters are residing in Section 2-drawn districts, and that the Supreme Court continues to interpret Section 2 as it has.) It might be the case that Latino voters would lose a marginal district or so if they were unable to muster sufficient voters in newly-redrawn districts. But they could also add previously-marginalized Latino voters in non-majority-minority districts to shore up a district that might otherwise have been lost under a new rule. And that means the partisan impact might be less than otherwise projected, too. (I'm sure very careful political scientists will have more to say about the more nuanced impact of such policies in the months ahead.)

But there are other alterations that such a lawsuit might bring, all depending on the fashioning of the remedy. To name a few.

• Districts with a felon prison population would lose political power. While a few states count prisoners as inhabitants of their last place of residence before prison, most include them as members of the population where they currently reside. That, obviously, can create districts, especially in the state's lower chamber of the legislature, with a significant number of ineligible voters. And these prisons tend to be in fairly rural areas (PDF)--or, areas that tend to have more Republican voters. A couple of million felons reside in these extremely concentrated areas--prisons, after all, are probably amount the most concentrated non-voting demographic you can find--and the practice of "prison gerrymandering" might be found unconstitutional.
• Districts with a disenfranchised ex-felon population would lose political power. To the extent a decision gets so granular as to exclude even ex-felons in redistricting in states that disenfranchise them, we'd have to look at where the couple of million ex-felons reside. And if most ex-felons are in largely concentrated in urban areas, then we'd expect a loss of political power for those urban dwellers as voters are added to their districts--which might benefit Republicans more than Democrats.
• Districts with a large number of children would lose political power. Children under the age of 18 are ineligible to vote in every state, with a couple of very marginal exceptions. But they are currently included in redistricting schemes. Localities that have more children would lose out; localities with aging populations would likely gain power. Whether this benefits any particular group is debatable. But to the extent there's a "fertility gap," in that Republicans tend to have more children than Democrats, it likely would also diminish Republican power. (Further complicating this analysis, of course, is that minorities tend to have children at higher rates than whites.) Taking California congressional districts as an example (assuming the case would be extended to congressional districts, but it's a useful data point because of the ease of obtaining Census data), the results are stark. There are just 91,000 under-18 residence in CD-12 (held by Nancy Pelosi, Democrat), but almost 227,000 children in CD-21 (David Valadao, Republican). Thousands of voters would be shifted out of districts like Pelosi's and into districts like Valadao's. (Further, it might also be the case that the shift from child-filled districts to elderly or childless districts would result in more substantive changes in political outcomes, including shifting of spending away from education toward end-of-life care or sustaining pensions.)
• Robust expansion of the Census Bureau's duties. If such granular data is required before states can draw districts, the Census is going to have a much bigger job. As it is, there have been instances where conservatives have opposed the existing breadth of the Census survey.

These are, of course, projections and guesses and possible results. But they are much deeper than the original "Latino loss, Republican gain" picture originally suggested. (I've written about the "invisible federalism" that underlies the political structure of the Electoral College, for example, as a result of our system of apportionment of representatives, includes some meaningful choice in jurisdictions about voters and non-voters.)

These potential ramifications come with an extremely important caveat (which, of course, I save until the end). It's not entirely clear what a system of redistricting based on "voters" would necessarily look like. The appellants in Evenwel seem to offer at least three possibilities before the three-judge panel: citizen voting-age population, total voter registration, and "non-suspense" voter registration. If the Court did decide that voters was the proper metric, but allowed flexibility within that regime, then redistricting would change based on citizenship status and age, but not felon prison population; however, a more narrow holding, or a state choice to use something narrow, would impact prison gerrymandering.

But even under the most generous Supreme Court interpretation in favor of appellants, I find it hard to believe that states would be allowed to continue to include vast numbers of imprisoned ineligible voters contained in a very tiny geographic area. And (regardless of the merits of this or any other impact on redistricting) that, I think, would be a fairly significant impact of Evenwel--and certainly not the one that either appellants or most commentators have really identified.

My commentary on Evenwel v. Abbott at the Online Library of Law and Liberty

I have a piece at the Online Library of Law and Liberty today on Evenwel v. Abbott, a challenge to Texas's state legislative redistricting system that draws districts on the basis of total population instead of voters. It concludes:

Texas, along with the other 49 states, has remained free to adopt one of several theories of representative government within the confines of Reynolds v. Sims. But Evenwel threatens not only to deprive the states of their authority to do so, but also to impose a standard that is squarely at odds with the structural design of the Constitution: representative government includes representation of all persons, not simply voters.

Scholarship on "natural born citizen"

The Katyal & Clement piece on the meaning of "natural born citizen," which I recently covered on this blog, has received some attention. Perspectives from Michael Ramsey, David Upham, and Peter Spiro contain a wealth of information. Check them out!

Rand Paul, Ben Cardin re-introduce ex-felon enfranchisement bills (with one glaring error)

Last year, I discussed Senator Rand Paul's proposal to enfranchise some ex-felons in some elections, and Senator Ben Cardin's broader proposal.

Both have reintroduced their bills this year: Mr. Paul's is S. 457, and Mr. Cardin's is S. 772. Neither changes a word, except for the years introduced.

That's disappointing at the basic level that my (obviously wise and salient) critiques were never addressed in the new drafts of the bill. That's largely, I suppose, because the drafts aren't "new," but simply recycled from last term--and, probably more significantly, because this little blog is more for sorting out my own thoughts than for rewriting federal legislation.

That said, both bills include a glaring error.

Recently I noted that Representative Jim Sensenbrenner's reintroduction of the Voting Rights Amendment Act contained no "substantive" changes. That said, it did include a procedural change: it amended all references to prior election law provisions to reflect their new home in Title 52.

Mr. Paul's and Mr. Cardin's bills, unfortunately, contain the old Title 42 references when referring to other election law provisions in the federal code.

Kudos to Mr. Sensenbrenner's staff for careful attention given to the reintroduction of his election law bill.

Quick thoughts from oral argument in today's Arizona redistricting case

Following up on my preview of today's oral argument, I read the oral argument transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission (PDF). Here are a few quick thoughts.

At the outset, the Court had basically no interest in the standing issue or the statutory interpretation issue. Chief Justice Roberts and Justices Sotomayor and Ginsburg all sounded very confident that the Arizona legislature had standing in this case. (Indeed, the breadth of the standing analysis may be beneficial to the Colorado legislature in Hickenlooper v. Kerr, except, of course, the part that legislators are suing.) And both Chief Justice Roberts and Justice Alito were openly hostile to the applicability of the statute.

There was also some search for a limiting principle in a number of ways, and to seek out how to articulate the doctrine the Arizona legislature was advocating.

The first question of scope related to the role the legislature must play. Paul Clement, representing the legislature, would use the phrase "cut out completely," or other times articulated as "completely cut out." Justice Kennedy wondered if laws enacted by ballot initiative "about voter ID laws, . . . about absentee ballots" might "completely cut out" the legislature, to which Mr. Clement answered, "[P]robably." Then Mr. Clement and Justice Kagan (and others) walked through a series of hypotheticals about what the legislature's role must be in the process. Mr. Clement argued that "it's okay for a judicial body . . . to do redistricting on a one-off basis," but the problem is this mechanism "wrest[ed] the legislature from that process entirely on a permanent basis."

Justice Kennedy pressed the point as to whether the Arizona legislature had been completely divested of power. That is, he noted that the legislature could proposed an initiative or referendum. Mr. Clement pressed back that all the legislature could do is propose an alternative map via the initiative process--but that puts the legislature "on the same plain as the people," which is insufficient.

The most hostile, I think, was this, from Justice Kagan:

JUSTICE KAGAN: But you see, Mr. Clement, that suggests a very pure rule and and on occasion you said something like this, a legislature means a legislature, and that's what it means, and so a legislature has to do all those things. But you've made many, many exemptions to that over the course of the last 20 minutes.

You've said that as to anything that's not redistricting, it can be done by referendum or initiative without any legislative process whatsoever. You've said that all these kinds of different schemes about the interaction between a legislature and advisory commission are all going to be have to reviewed on a case-by-case basis to determine whether the legislature has primary control.

And when you get through with all that, the sort of purity of the originalist argument that a legislature means a legislature, well, we are miles away from that, aren't we?

Mr. Clement's ultimate response was that "this is about the most extreme case that you're going to have," and that the contours for other cases could be resolved on another day.

The second question of scope came out largely when the United States and appellees argued--could Congress authorize this exercise of power? And how did the clauses of the Elections Clause related to each other (which suggests, I think, that "Elections Clause" is not a great word to use?)

That clause reads:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

Mr. Clement emphasized that the legislature could not be completely divested of its power. Indeed, he essentially went so far as to say it could not be given away. So, what about the second clause? Or, as Justice Scalia asked:

JUSTICE SCALIA: Can the second clause be used to revise the first clause? That's what we're talking about here. The second clause can certainly--Congress can do something on its own, but can Congress use the second clause to revise what the first clause says?

That is, if the first clause means the legislature must have some role, or the primary role, or cannot delegate away all its power, or cannot be completely divested of its power, could Congress intervene under the second clause to do just that? And that makes the interpretation of the scope of the first clause all the more important.

It was later in the argument that Justice Breyer began to puzzle through the precedents and reflected his uncertainty about what to do. He seemed more concerned with a lack of precedent and uncertainty about how to move forward (and, with far more emphasis on early 20th century cases than on the Constitution).

Chief Justice Roberts mused that the redistricting commission's interpretation would render the words "by the legislature thereof" "entirely superfluous." Had it been left to each "State," absent any qualifier, then presumably non-legislature-based provisions would control.

Near the end of the case, Justice Kagan interpreted the Court's previous precedents as standing for the provision that "we need to show a lot of respect to the State's own decisions about how legislative power ought to be exercised. And that seems to me the overriding principle of the three cases." And, later, "Congress was also on board with this idea that the Court had, that when you look at that clause, the Elections Clause, that a lot of respect, a lot of deference, has to be given to the State's own definition."

There, then, is a sense of a soft political question doctrine in Justice Kagan's answer, that, perhaps as a near outgrowth of the Court's Guarantee Clause jurisprudence, the Court should defer to a State's governance. That's less, I think, the functionalist or consequentialist view advanced in the briefs, but a possible outcome from at least some members on the Court.

Time will tell what happens to this case. I anticipate seeing it in late June, with some possible unusual alliances and perhaps plenty of dicta for other cases.

Are competitive congressional elections always a good thing?

In today's Arizona redistricting case, the least persuasive arguments focus solely on the good of independent redistricting commissions and the evils of gerrymandering. That, of course, was the thrust of Arizona's ballot initiative that was enacted, and some briefs in this litigation are treating the Supreme Court as a kind of ratifying commission for this political decision.

But here's one question I like to float to students and others skeptical of gerrymandering. (Disclosure: this blog is named after a quotation from Elbridge Gerry.) Are competitive elections always a good thing?

There are at least two immediate costs that come with a competitive election: increased price tag on elections, and increased uncertainty in outcomes leading to recounts and litigation.

Arizona, case in point.

Even though Arizona has just nine members in the 435-member House of Representatives, it boasted two of the four most expensive races in outside spending (or, depending on your politics, "dark money") in 2014. Competitive elections often mean that the price of running an election increases--and that the amount of outside spending increases.

One House race was decided by just 167 votes, certified after a recount--because more competitive elections are closer, and those often trigger recounts and possible litigation.

It might be that, on the whole, voters, as a policy matter, as Arizonans did, prefer competitive elections. But it shouldn't be seen as a costless decision.

Thoughts before today's oral argument in the Arizona redistricting case

Over a year ago, I flagged an underdiscussed case in which Arizona's legislature case challenged the power of a ballot initiative-created redistricting commission to draw congressional districts. The Arizona legislature lost below, hired Paul Clement to help brief the case, and finds itself before the United States Supreme Court today.

There's much to say about this case before oral argument (for a taste of some interesting things already said, see George Will, Michael Ramsey, and Will Baude), but I'm going to highlight a few things to look for.

First, the Court added a question asking whether the legislature had standing to bring this lawsuit. I think the answer is probably yes, with little dissent, but how the Court goes about explaining standing in this case, and its implications in certiorari-pending cases like Hickenlooper v. Kerr, is of some interest.

Second, there's a possible statutory dodge. 2 U.S.C. § 2a(c) may include language broad enough to suggest that Congress authorized redistricting by any means permitted by law, including by ballot initiative. Or it might be deemed unconstitutional as a statute, as other portions of it have been. Or it might not be broad enough to be read that way. Or it might be unconstitutional to divest the legislature completely of its redistricting power. Or it might be that this Court, as it has done in other election cases, will adopt a saving statutory construction and generous dicta on the merits. How much traction any permutation of the statutory argument gets at oral argument will be of interest.

Third, how much will textual-oriented originalism square off against a bevy of alternative constitutional theories--including emphasis on functionalism, limiting principles, and consequentialism? Reading the briefs, I was struck at the stark contrast in arguments. "Legislature" should not be an overly complicated word to understand, particularly as used here and elsewhere in the Constitution. But the respondents briefs often quickly turned to one of these three notions.

My own views? They aren't very strong.

The first argument is a functionalist view of the word “Legislature.” It argues that the word is like a chameleon, adapting with each clause: in one part of the Constitution meaning an electoral body, in another place a ratifying body, and in this place a lawmaking body, which can include the people. But this argument relies more on language from a few previous, and somewhat sloppy, judicial opinions, and less on the text of the Constitution. (It's not hard, after all, to see places where a justice on the Court has used "State" when it should have used the word "Legislature.")

The second argument s a worry about a limiting principle. If “Legislature” means legislature, can the governor veto an election bill? Can an administrative agency regulate an election? Can a court interpret an election law? Those harder questions are best left to another day—here, the Arizona legislature has been frozen out of the redistricting process with no effective role, which, I think, is sufficient to succeed on a claim here.

The third, and most discussed in the briefs, is a consequentialist concern. The people, after all, have been amending election laws by ballot initiatives in many states for decades. If Arizona’s independent redistricting commission falls, other redistricting commissions might fall, too. And not just redistricting commissions—Oregon’s vote-by-mail system, Mississippi’s voter identification law, and California’s top-two primary system, were all enacted as popular ballot measures. And all would be threatened.

These laws would remain in effect for state legislative redistricting and state elections—they simply would not apply in federal elections. And these could be saved, of course. Congress could explicitly pass a law authorizing initiatives as a valid means of enacting federal election laws (assuming that there's not greater constitutional issue with such a law), or the state legislatures themselves could ratify the laws enacted via initiative.

But the consequentialist concern may worry members of the Court—indeed, it often appears to drive judicial decisionmaking in high-stakes litigation. These, to me, are some of the worst kinds of constitutional arguments. Judges aren't supposed to sit in the position of worrying that if they follow the text of the Constitution, something undesirable may follow, and so they should ignore it to prevent the undesirable thing. But I imagine that this may be one of the things most emphasized at oral argument--more so than line drawing, a question of what happens next if the Arizona legislature wins?

I'm attending a conference much of the day and won't have prompt access to the oral argument transcript, but I'll offer my thoughts on it late today.

No substantive changes in Voting Rights Amendment Act of 2015 over last year

Last week, Representative James Sensenbrenner introduced the Voting Rights Amendment Act of 2015, H.R. 885. I compared the bill with last year's version, the Voting Rights Amendment Act of 2014, H.R. 3899. Apart from the year in the title and the initial list of co-sponsors, there are no substantive changes, and only a couple of very minor alterations at all.

First, the bill formerly cited Title 42, the old home of the provisions of the Voting Rights Act. Since there is now a compilation of election laws in Title 52, the new bill properly identifies all of the Title 52 provisions that would be amended.

Second, there were two definitions of "minority" and "nomminority" that referred to persons who were "white." Those have been amended to capitalize the W and read "White."

And that's it. So if you had any praises or criticisms of last year's version of the VRAA, know that they are just as applicable to this year's version.

Everything you need to know about Hickenlooper v. Kerr, the Guarantee Clause case before the Supreme Court

Tomorrow, the Supreme Court will consider a petition for a writ of certiorari in Hickenlooper v. Kerr. Colorado legislators challenged an enacted ballot initiative that prohibited legislative tax increases from taking effect without a popular vote, arguing that it violated the Guarantee Clause. A federal district court, and the Tenth Circuit, agreed that the legislators had standing and that the Guarantee Clause claim was justiciable.

I started tracking this matter over a year ago. I provide the background in these links; below that, I'll discuss the briefs in the case that the Court will consider.

• Tenth Circuit considers justiciability of Guarantee Clause today (Sept. 23, 2013)
• More thoughts on the Guarantee Clause from Michael Ramsey (Oct. 10, 2013)
• BREAKING: Tenth Circuit finds Guarantee Clause claim justiciable (Mar. 7, 2014)
• Kerr v. Hickenlooper: Exploring the Tenth Circuit's Dubious Legal Reasoning, JURIST (Mar. 31, 2014)
• Colorado files petition for rehearing en banc in Guarantee Clause case (Apr. 4, 2014)
• BREAKING: Over four dissents, 10th Circuit denies en banc hearing in Guarantee Clause case (July 22, 2014)

Several amici were filed in the case, available at SCOTUSBlog. Of note (and these are very brief summaries of the major arguments):

• The Colorado Union of Taxpayers Foundation, the Mountain States Legal Foundation, and 22 Colorado state legislators filed a brief in support of the petitioner. They focused primarily on the fact that respondents' injury was abstract, because legislators never enacted a tax increase for the people to vote upon--instead, they simply alleged a dilution of legislative power. That cannot comport with existing standing doctrine. Only if the Colorado legislature enacted a tax increase, then saw the people reject it, would standing exist.
• The National Federation of Independent Business, along with several policy institutes, filed a brief in support of the petitioner. They emphasized the breadth of the impact of a finding that such a case is justiciable, because the decision invites judicial invalidation of direct democracy in a number of states on matters ranging from marijuana legalization to charter schools. They also noted that in the partisan gerrymandering context (Vieth v. Jublier), the Supreme Court has essentially required an articulation of judicially-manageable standards before the case could proceed. Here, the district court insisted (in a rather bizarre fashion) on holding a trial to determine what the Guarantee Clause demands.
• The Center for Constitutional Jurisprudence (with John Eastman) filed a brief in support of the petitioner. It focused upon the inability of the Tenth Circuit to distinguish existing precedent finding the Guarantee Clause usually non-justiciable. Regardless, the case presents a good vehicle for clarifying the language in cases like New York v. United States (1992) suggesting that the Guarantee Clause may be justiciable, and articulating that the standards for justiciability are not met in this case.
• Texas joined by five other states filed a brief joined in support of the petitioner. They argue that the text of the Guarantee Clause protects not the state legislature, but the people, and the States. They also cite other provisions like line-item vetos and supermajority voting requirements that may be called into question if this case is found justiciable.
• The Cato Institute (with Ilya Shapiro) and several other policy institutes filed a brief in support of the petitioner. It asked the Court to avoid addressing the issue of whether the Guarantee Clause is per se non-justiciable and instead emphasized that Colorado's Taxpayer Bill of Rights met the standard of a "Republican Form of Government," drawing heavily from source material at the founding.

The Supreme Court will consider the case tomorrow--and we'll eagerly await their decision as to whether to hear this case.