Amicus Curiae Brief — Evenwel v. Abbott, 135 S. Ct. 2349 (2015) (No. 14-940)

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Supreme Court, U.S,

FILED

AUG - 7 2015

_GFFICE OF THE CLERK |

No. 14-940

In the Supreme Court of the Anited States

Sue Evenwel, et al.,

Appellants,

Greg Abbott,

in his official capacity as Governor of Texas, et al.,

Appellees.

On Appeal from the United States District

Court for the Western District of Texas

BRIEF OF THE CATO INSTITUTE AND

REASON FOUNDATION AS AMICI CURIAE

SUPPORTING APPELLANTS

Manuel S. Klausner Ilya Shapiro

LAW OFFICES OF MANUEL Counsel of Record

S. KLAUSNER CATO INSTITUTE

One Bunker Hill Building 1000 Mass. Ave., N.W.

601 W. Fifth St., Ste. 800 Washington, DC 20001

Los Angeles, CA 90071 (202) 842-0200

(213) 617-0414 ishapiro@cato.org

mklausner@mac.com

August 7, 2015

QUESTIONS PRESENTED

1. When equalizing populations across electoral

districts as required by the Fourteenth Amendment’s

Equal Protection Clause—the “one person, one vote”

standard—is the relevant population to be equalized

the number of people or the num Ler of eligible voters?

2. Does the “federal analogy” to the U.S. House of

Representatives, in which states are awarded repre-

sentation based on total population, provide apposite

guidance in answering Question 1?

3. Even if the “federal analogy” provides no sup-

port for a state unequally weighing voter strength,

can this voter inequality be justified as a permissible

side-effect of the racial gerrymandering which Sec-

tion 2 of the Voting Rights Act has been interpreted

to require?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......000000:000scscsessscsesesssesees i

ee I aire cietdncisesesssccnsinsitnsnnsscs v

INTEREST OF AMICI CURIAE..............2..222.c2000000000 1

SUMMARY OF ARGUMENT ......000000.0.... cc ccc cee cece eeeeeee 2

IIIT io cosieshteicieseindlipemaieiuiilandinianbissennatinaminntiendinin 4

I. THE “FEDERAL ANALOGY” TO THE U.S.

FP EPED EP POGUE IEEE cscccccsccccccescsesecescescncseccece 4

A. Courts Have Simplistically Relied on the

1. There is no disputing that the U.S.

House allocates representatives by total

REISE SSE SO Seen ae ee re 4

2. Courts have not thoroughly examined

the history or purpose of the federal rule...5

B. The Federal Rule Was Created to Protect

Federalism, Not Voter Equality ...................... 7

1. Allocating House members by eligible

voters would present states with a per-

EERIE tana et ae Oe 7

2. The Framers were correct to choose a

federalist system of voter qualification

gE ee ee 9

3. No similar federalist concerns exist at

I smuunaninsabe 10

C. The Federal Rule Was Intimately Tied to

ai acranseiadaccilaideinetiidanheiiie 11

ili

1. Apportionment by population checked

the incentive to underreport population

0 Se I siniisisescsetricictinaidiiniiatamiiiiaiiiies

2. Linking representation and taxation in-

creased support for the Three-Fifths

Se eiicissiecictcesiisteiiieitieinsinntuitiitiaiann ial 13

3. No such concerns are operative today at

i ee icennencisitinituttdinddmesumicieiiogiea

D. The Federal Rule Was Preserved in 1866 to

Ensure Virtual Representation for Women,

TE FR icccaicctntindsnicntidiniaiindtedaeh tron ene

1. The Fourteenth Amendment rejected a

theory of virtual representation for non-

CE cectininidaitactinitonscaiaitanammasnas

2. The Fourteenth Amendment retained

the population rule to ensure women

would be represented..................cccceeeeeeeeees

3. Aliens were retained in apportionment

for several reasons unrelated to virtual

es ctiitistccsccvseviccinsamiaiiintinnetinns

4. Aliens are not “virtually represented”

by voters who happen to live near them...

5. Concerns for representing nonvoting

women are no longer relevant at the

SORDD GP TREIUE BV GS oecevcsccsccssccccsccssescsoscecce

E. The Federal Rule Does Not Result in Vot-

ing Strength Disparities of the Same Scale

i a a ie iicricciieecnesincitiibiniiniiintiemditin hia

1. The larger size of states naturally in-

clines them toward heterogeneity.............

2. One fifth of the Texas districts are more

malapportioned than the most malap-

ENE iccsnininsitinniiadinbaciidseannaaekcncion’

3. State boundaries cannot be gerryman-

dered to create “grossly absurd and dis-

LT 32

Il. “ENFORCING” THE VRA DOES NOT

JUSTIFY ABRIDGING ONE PERSON,

a 33

TT elcid ccinctarttenndetenesencernennecesnecete 36

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama Legislative Black Caucus v. Alabama,

ee le ee OT Eiriccccacnieniititiicitesandibbatidasecained 34

Burns v. Richardson,

I ENE a: 32

Brown v. Thomson,

ee I cccidiccutintsinntnsinasensincsninitbaimnaiasan 29

Calderon v. City of Los Angeles,

EE 6, 18

Chen v. City of Houston,

206 F.3d 502 (5th Cir. 2000) ..................... 6, 34, 35

Chen v. City of Houston,

Kk SESE s arene 35

Daly v. Hunt,

93 F.3d 1212 (4th Cir. 1996) ......................... 18, 35

Garza v. County of Los Angeles,

918 F.2d 763 (9th Cir. 1990) .......0.000000.cee. 6, 35

Gray v. Sanders,

RE EER Ce AA a Ee 3, 10

Lepak v. City of Irving,

453 Fed. Appx. 522 (5th Cir. 2011)..................... 35

Mahan v. Howell,

es Se PD ceneecenseasiancnsscsainstninnsenamenments 30

Pollock v. Farmer’s Loan & Trust Co.,

157 U.S. 429 (1895) ....................... seaiasueladainiaiin 11-12

Reynolds v. Sims,

I cea 2,5

Thornburg v. Gingles,

TInt oC ETOe 26

United Jewish Organizations v. Carey,

I ic ia 25-26

Wesberry v. Sanders,

I iia sialic iieeil 4,15

Statutes and Constitutional Provisions

pe RSS eee 10

Re RS Renee een e 10

ee eR OF rene passim

U.S. Const. amend. XIV, § 2......................000.0000 passim

fF SEE Cn 12

Other Authorities

Akhil Reed Amar, Philadelphia Revisited: Amend-

ing the Constitution Outside Article V,

55 U. Chi. L. Rev. 1043 (1988)............................ 14

vii

Alexander Keyssar, The Right to Vote: The

Contested History of Democracy in the

So | en 10, 14-15

American Community Survey Special Tabulation

Using Census and American Community

Survey Data 2009-2013, Texas Plan S172,

ftp://ftpgis1.tlc.state.tx.us/PlanS 172/Reports/P

DF/PlanS172_RED116_ACS_Special_Tabulati

ee itescpretictniestnintnseccchiscitvetinnsiatiessias 30

Cong. Globe, 39th Cong., Ist Sess. (1866) ........ passim

Derek T. Muller, Jnvisible Federalism and the

Electoral College,

44 Ariz. St. L.J. 1237 (2012) ......000000.... 5, 7, 8,9, 15

Erik M. Jensen, Interpreting the Sixteenth

Amendment (By Way of the Direct-Tax Clause),

21 Const. Comment. 355 (2004).................... 12, 13

2 Farrand’s Records: The Records of the Federal

Convention of 1887

(Max Farrand ed.) (1911)...................... 8, 9, 10, 13

The Federalist (Clinton Rossiter ed., 1961)......passim

G. Alan Tarr, Explaining Sub-National Constitu-

tional Space, 115 Penn St. L. Rev. 1133 (2011) . 10

George P. Smith, Republican Reconstruction and

Section Two of the Fourteenth Amendment, 23

Western Pol. Q. 829 (1970) ............. cc ceecccecee eee e es 21

I J. Story, Commentaries on the Constitution

SEEITIE IIatainepinieciidainbesnainbdehieadiniaeniaininiinnds 12

Vill

Mark R. Killenbeck & Steve Sheppard, Another

Such Victory? Term Limits, Section 2 of the

Fourteenth Amendment, and the Right to Rep-

resentation, 45 Hastings L.J. 1121 (1994).... 22-23

Mark S. Scarberry, Historical Considerations and

Congressional Representation for the District of

Columbia: Constitutionality of the D.C. Voting

Rights Bill in Light of Section Two of the Four-

teenth Amendment and the History of the Crea-

tion of the District, 60 Ala. L. Rev. 783

ITI iliac ciated eancaetnlclaentip lieth dita 16-17

Peter Odegard, The American Republic (1964)....... 23

Pew Hispanic, Mapping the Latino Electorate by

State, http://www.pewhispanic.org/interactives/

mapping-the-latino-electorate-by-state/............. 28

Robert W. Bennett, Should Parents Be Given Ex-

tra Votes on Account of Their Children?: To-

ward a Conversational Understanding of

American Democracy,

94 Nw. U. L. Rev. 503 (2000)........................ 32-33

Sanford Levinson, One Person, One Vote: A

Mantra in Need of a Meaning,

I a 6

Scot A. Reader, One Person, One Vote Revisited:

Choosing a Population Basis to Form Political

Districts, 17 Harv. J.L. & Pub. Pol’y 521 (1994) 15

Ward Farnsworth, Women Under Reconstruction:

The Congressional Understanding,

94 Nw. U. L. Rev. 1229 (2000).................00..... 9,10

INTEREST OF AMICI CURIAE:

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Center for

Constitutional Studies was established in 1989 to

help restore the principles of constitutional govern-

ment that are the foundation of liberty. To those

ends, Cato holds conferences and publishes books,

studies, and the annual Cato Supreme Court Review.

Reason Foundation is a nonpartisan public policy

think tank founded in 1978. Its mission is to advance

a free society by developing and promoting libertari-

an principles and policies. Reason supports market-

based solutions that encourage individuals and vol-

untary institutions to flourish. Reason advances its

mission by publishing Reason magazine, online com-

mentary, and policy research reports. To further its

commitment to “Free Minds and Free Markets,” Rea-

son files briefs on significant constitutional issues.

Amici’s main concern here is that the crucial right

to an equally weighted vote protected by the Equal

Protection Clause of the Fourteenth Amendment—

the “one person, one vote” standard—not be abrogat-

ed because of a false analogy to another part of that

same amendment or by contorted interpretations of

the Voting Rights Act.

1 Rule 37 statement: All parties lodged with the Clerk blanket

consents to the filing of amicus briefs. Further, no part of this

brief was authored by any party’s counsel, and no person or en-

tity other than amici funded its preparation or submission.

SUMMARY OF ARGUMENT

When this Court was asked more than 50 years

ago to uphold grossly disproportionate state legisla-

tive districts, Alabama argued that states should be

allowed to implement a “little federal system” that

would be “framed after the Federal System of gov-

ernment—namely one senator in each county of the

state.” Brief for Appellant Reynolds at 14, 35, Reyn-

olds v. Sims, 377 U.S. 533 (1964) (Nos. 23, 27, 41).

This Court correctly realized then that “the federal

analogy [is] inapposite and irrelevant to state legisla-

tive districting schemes.” Reynolds, 377 U.S. at 573.

After all, the states are “separate and distinct

governmental entities which have delegated some,

but not all, of their formerly held powers to the single

national government,” id. at 574, whereas “[p]olitical

subdivisions of States—counties, cities, or whatever—

never were and never have been considered as sover-

eign entities, [but rather] have been traditionally re-

garded as subordinate governmental instrumentali-

ties created by the State to assist in the carrying out

of state governmental functions.” Jd. at 575. Further,

since “[t]he system of representation in the two

Houses of the Federal Congress ... [arose] from

unique historical circumstances,” id. at 574, “the

Founding Fathers clearly had no intention of estab-

lishing a pattern or model for the apportionment of

seats in state legislatures when the system of repre-

sentation in the Federal Congress was adopted.” Jd.

at 573.

Today, this Court is being presented with a new,

21st-Century version of the federal analogy, this time

relating to the other chamber of Congress. Texas and

its supporters are arguing that because the Constitu-

tion apportions seats in the House of Representatives

by total population rather than voter population,

states should be able to do the same for their own leg-

islative districts.

This federal analogy works no better than the last

one. Careful study of the history and purpose of both

Section 2 of Article I and Section 2 of the Fourteenth

Amendment shows that the rule they established is

one for dealing with separate states that possess a

great deal of legal autonomy—not least in defining

for themselves how to select their congressmen (sub-

ject to congressional alteration, per Section 4 of Arti-

cle I). That is not the case with respect to state legis-

lative districts. Despite the Appellees’ contentions,

states’ political subunits are simply not mini-states.

Federal apportionment is thus of no moment to

intra-state districting and we are left with the simple

principle this Court has consistently upheld, that

“(t]he conception of political equality from the Decla-

ration of Independence, to Lincoln’s Gettysburg Ad-

dress, to the Fifteenth, Seventeenth, and Nineteenth

Amendments can mean only one thing—one person,

one vote.” Gray v. Sanders, 372 U.S. 368, 381 (1963).

Nonetheless, another argument has been put for-

ward to justify violating this principle—that Section

2 of the Voting Rights Act requires gerrymandering

state legislative districts to create majority-minority

districts where possible, and that this “compelling in-

terest” justifies the effect of unequal voter strength.

This argument fails because even if the VRA does ask

states to do such gerrymandering—a questian for an-

other time—such legislation cannot trump the Con-

stitution. Where equal protection comes into conflict

with the VRA, the latter must yield.

ARGUMENT

I. THE “FEDERAL ANALOGY” TO THE U.S.

HOUSE IS INAPPOSITE

A. Courts Have Simplistically Relied on

the Federal Analogy to Uphold Voter

Inequalities

1. There is no disputing that the US.

House allocates representatives by to-

tal population.

Before showing why the current federal analogy

does not work, it is necessary to lay out why it may,

at first blush, seem appealing. There is no question

that the Constitution has, since its inception, award-

ed representation in the U.S. House to the states on

the basis of total population. U.S. Const. Art. I, § 2,

cl. 3. Accordingly, ever since the first census of 1790,

there have been disparities in the relative voting

power of those voting for House members from state

to state. To point out one obvious example, “[s]ince no

slave voted, the inclusion of three-fifths of their num-

ber in the basis of apportionment gave the favored

States representation far in excess of their voting

population. If, then, slaves were intended to be with-

out representation, Article I . . . ‘weighted’ the vote of

voters in the slave States.” Wesberry v. Sanders, 376

U.S. 1, 27 (1964) (Harlan, J., dissenting).

After the abolition of slavery, the infamous

“Three-Fifths Compromise” was removed by the

Fourteenth Amendment, but using total population

rather than voter population remained the primary

basis for allocating state representation. “Represent-

atives shall be apportioned among the several States

according to their respective numbers, counting the

whole number of persons in each state, excluding In-

dians not taxed.” U.S. Const. Amend. XIV, § 2. Since

the passage of that amendment, women have been

given the vote and we no longer live in an era where

“[even] in the most liberal of [states, the right of vot-

ing] has always been confined to a small minority of

people.” Cong. Globe, 39th Cong., 1st Sess. 2962

(1866) [hereinafter Globe] (statement of Sen. Hen-

dricks). Yet aliens, felons, minors, and others ineligi-

ble to vote do still reside in every state, and “some

states have far more children or noncitizens in their

populations, and some have far fewer of them,” Derek

T. Muller, Invisible Federalism and the Electoral Col-

lege, 44 Ariz. St. L.J. 1237, 1261 (2012), so today the

percentage of a state’s population who are eligible to

vote ranges from 62.6% in California to 78.8% in

Vermont. See Figure 1, infra Part I.E.1.

As a result, real disparities in vote weight for the

U.S. House exist from state to state, ranging from one

representative for every 451,887 eligible voters in

California to one representative for every 568,321 eli-

gible voters in Vermont. Jd. (Data equalized to elimi-

nate the effects of rounding each state to a whole

number of representatives. See note 2 infra, Part

I.E.1.). The question that must be addressed, howev-

er, is whether such disparities between states mean it

is constitutionally permissible to create disparities

within states.

2. Courts have not thoroughly examined

the history or purpose of the federal

rule.

Ignoring the admonishments of the Reynolds

Court, two circuit courts and the California Supreme

Court have proffered the federal rule as a compelling

indication that state allocation of representatives by

total population, rather than voter population, must

be permissible. A state apportionment on the basis of

total population has been held to “derive[] from the

constitutional requirement that members of the

House of Representatives are elected ‘by the people’

from districts ‘founded on the aggregate number of

inhabitants of each state,” Garza v. County of Los

Angeles, 918 F.2d 763, 774 (9th Cir. 1990) (citing

Federalist 54 (Madison)), since “[t]he framers were

aware that this apportionment and representation

base would include categories of persons who were

ineligible to vote—women, children, bound servants,

convicts, the insane, and, at later times, aliens.” Jd.

That the federal rule could have been changed by the

Fourteenth Amendment but was kept intact has

likewise been put forward as support for allowing a

similar system at the state level. “[T]he drafters of

the Fourteenth Amendment ... do appear to have

debated this question, and rejected a proposal rooted

in... the principle of electoral equality.” Chen v. City

of Houston, 206 F.3d 502, 527 (5th Cir. 2000). See al-

so Calderon v. City of Los Angeles, 481 P.2d 489, 493

n.6 (Cal. 1971) “({I}t seems clear that total popula-

tion—not voters—was the apportionment criterion

envisioned by the framers of the Constitution.”)

Scholars have also noted the superficial appeal of

this federal analogy, but have left open the constitu-

tional question of whether this analogy is determina-

tive. See, e.g., Sanford Levinson, One Person, One

Vote: A Mantra in Need of a Meaning, 80 N.C. L. Rev.

1269, 1283 (“It may be, of course, that Section 2,

properly interpreted, places constraints on Congress

that the Equal Protection Clause does not place on

the states themselves.”) Neither courts nor scholars

have actually examined the purpose behind the fed-

eral rule as demonstrated by its history, and this ex-

amination shows why the federal analogy is inapt.

B. The Federal Rule Was Created to Pro-

tect Federalism, Not Voter Equality

1. Allocating House members by eligible

voters would present states with a

perverse incentive.

The federal rule of apportioning House seats cre-

ates a division of power between state governments

and the federal government in determining the rep-

resentation of each state. As James Madison identi-

fied in The Federalist Papers, “[i]t is a fundamental

principle of the proposed Constitution, that as the

aggregate number of representatives allotted to the

several States is to be determined by a federal rule

founded on the aggregate number of inhabitants, so

the right of choosing this allotted number in each

State is to be exercised by such part of the inhabit-

ants as the State itself may designate.” Federalist 54.

Thus, “the Constitutional Convention [reached] a

fairly simple assessment of the balance of political

power by counting population.... But the decision

as to who among that population would vote was left

to other governing bodies—an element of invisible

federalism.” Muller, Invisible Federalism, 44 Ariz. St.

L.J. at 1249 (citations omitted).

Why was it so important to have this dichotomy, a

single federal rule (total population) to determine

every state’s representation, coupled with individual

state rules for determining the franchise? Suppose

what would have happened if U.S. House seats had

instead been allocated on the basis of eligible voters,

but states had still been allowed to determine the eli-

gibility of their residents to vote. The Framers direct-

ly confronted an analogous problem, that of having a

direct popular vote for president while allowing each

state to determine its own rules for suffrage. “There

was one difficulty however of a serious nature attend-

ing an immediate choice [i.e. popular vote] by the

people [for president}. The right of suffrage was much

more diffusive [i.e. widespread] in the Northern than

the Southern States... The substitution of electors

obviated this difficulty and seemed on the whole to be

liable to the fewest objections.” 2 Farrand’s Records:

The Records of the Federal Convention of 1787, at 57

(Max Farrand ed.) (1911).

In other words, simply by virtue of having a more

liberal voting rule, northern states would have con-

tributed more votes to the national total. Under such

a system “a state’s incentive to extend suffrage would

no longer affect just that state.” Muller, Jnvisible

Federalism, 44 Ariz. St. L.J. at 1268. The natural

concern is that states would “have incentives to

change their own eligible voting population as a reac-

tion to what another state has done,” id., and soon

find themselves in a “race to the bottom,” extending

the franchise to younger and younger children, the

mentally ill, and others who ought not wield it, all to

gain an advantage in national elections. Such a sys-

tem would clearly have been unacceptable.

Madison’s federalist principle is the answer to the

analogous problem in the House. It is the response to

a hypothetical northerner, who objects to counting

nonvoters in apportionment such as slaves who “nei-

ther vote themselves nor increase the votes of their

masters. Upon what principle, then, ought they to be

taken into the federal estimate of representation?”

Federalist 54. Madison justifies his principle by not-

ing that “[t]he qualifications on which the right of

suffrage depend are not, perhaps, the same in any

two States. In some of the States the difference is

very material.” Jd. This is why “the principle laid

down by the convention required that no regard

should be had to the policy of particular States to-

wards their own inhabitants.” Jd. The allocation of

representatives by total population, analogously to

the allocation of presidential electors by total popula-

tion, eliminated the problem of incentivizing states to

gain greater representation in Congress simply by

expanding their voting laws.

2. The Framers were correct to choose a

federalist system of voter qualification

over voter equality.

The Framers could have taken a different path

than the one they chose, establishing a uniform crite-

rion of voter eligibility nationwide and allocating rep-

resentatives to states by eligible voters. The Conven-

tion did see a proposal to define a uniform standard

of suffrage in House elections nationwide, limiting it

only to freeholders. 2 Farrand at 201. But such a fed-

eral standard “would prevent the states from serving

as the institutions that are most inclined to extend

suffrage to new voters, as is historically the case, and

would stifle the opportunity for new enfranchise-

ment.” Muller, Invisible Federalism, 44 Ariz. St. LJ.

at 1265. Had we taken that path, Wyoming could not

have extended the franchise to women as a territory

in 1869 and upon statehood in 1890, paving the way

to national acceptance. Ward Farnsworth, Women

Under Reconstruction: The Congressional Under-

standing, 94 Nw. U. L. Rev. 1229, 1260 (2000).

The federalist system of congressional elections

instead “permitted states to act as the first movers in

the expansion of enfranchisement,” id. at 1254, the

benefits of which ability were keenly felt when “the

right to vote for African-Americans, women, and

eighteen-year-olds were pioneered in state constitu-

tions before their incorporation into the federal char-

ter.” G. Alan Tarr, Explaining Sub-National Consti-

tutional Space, 115 Penn St. L. Rev. 1133, 1147

(2011) (citing Alexander Keyssar, The Right to Vote:

The Contested History of Democracy in the United

States (2000)). Recognizing the importance of allow-

ing states to be such first movers, the Framers reject-

ed the proposal! for a nationwide standard of suffrage.

2 Farrand at 206.

3. No similar federalist concerns exist at

the intra-state level.

Because cities and counties do not have the same

autonomy as states, such concerns about federalism

are completely inapposite at the state level. No state

allows different counties to define the franchise dif-

ferently for state legislative elections. Indeed, the

Constitution in defining suffrage for U.S. House elec-

tions assumes that the qualifications for voting for a

state legislative branch will be uniform across a

state, in that “the Electors in each State shall have

the Qualifications requisite for Electors of the most

numerous Branch of the State Legislature,” U.S

Const. Art. I, § 2, cl. 1. In Texas, as in all 50 states,

the qualification for voting in state legislative elec-

tions is determined by state law, not local law. See

Tex. El. Code Ann. § 11.002.

This Court has already recognized that states

have no justification for using an electoral-college

system rather than a popular vote in elections for

statewide offices. Gray v. Sanders, 372 U.S. at 381.

The total population rule, just like the electoral col-

lege, is a solution to a purely federal problem.

C. The Federal Rule Was Intimately Tied

to State Taxation

1. Apportionment by population checked

the incentive to underreport popula-

tion for tax purposes.

Why did the Constitution establish a rule that

both representatives and direct taxes would be appor-

tioned by the same standard, total population? In the

Federalist Papers, Madison provides an explanation:

As the accuracy of the census to be obtained by

the Congress will necessarily depend, in a con-

siderable degree on the disposition, if not on

the co-operation, of the States, it is of great

importance that the States should feel as little

bias as possible, to swell or to reduce the

amount of their numbers. Were their share of

representation alone to be governed by this

rule, they would have an interest in exaggerat-

ing their inhabitants. Were the rule to decide

their share of taxation alone, a contrary temp-

tation would prevail. By extending the rule to

both objects, the States will have opposite in-

terests, which wiil control and balance each

other, and produce the requisite impartiality.

Federalist 54.

This Court has previously recognized the im-

portance of such opposing interests. “The establish-

ment of the same rule for the apportionment of taxes

as for regulating the proportion of representatives .. .

[was done partially so] the opposite interests of the

states, balancing each other, would produce impar-

tiality in enumeration.” Pollock v. Farmer’s Loan &

Trust Co., 157 U.S. 429, 564 (1895) (citing Federalist

54). Total population, not voter population, was

thought the fair measure for direct taxes, since popu-

lation “had reference to the proportion of wealth.” Id.

(citing Federalist 54).

As it turned out, the mechanism largely did not

work as the Framers intended. Federal direct taxes

were “occasional and rare,” imposed only three times

in the first 40 years of the Constitution. I J. Story,

Commentaries on the Constitution § 642 (5th ed.

1891). In fact, “[t]he last apportioned direct tax was

the Act of Aug. 5, 1861, ch. 45, (12 Stat.) 292.” Erik

M. Jensen, Interpreting the Sixteenth Amendment (By

Way of the Direct-Tax Clause), 21 Const. Comment.

355, 357 n.7 (2004). It was partially because of the

rarity of direct taxes that the Fourteenth Amend-

ment’s framers were willing to enact a rule that par-

tially delinked taxation from representation. See, e.g.,

Globe at 3033 (“If I believed it probable that direct

taxation would be resorted to in the future legislation

of the country, nothing could induce me to support

this proposition.”) (statement of Sen. Henderson).

Eventually, the Constitution was amended to

largely abandon this system of opposing stave inter-

ests in enumeration altogether, allowing income tax-

es to be collected “without apportionment among the

several States, and without regard to any census or

enumeration.” U.S. Const. Amend. XVI. Nonetheless,

the fact that the original purpose of a constitutional

design is no longer relevant should not obscure an

understanding of what the original design was—

which here in large part was a design motivated by

fair taxation and incentives for fair census-taking,

not a particular theory of representational equality.

2. Linking representation and taxation

increased support for the Three-Fifths

Compromise.

Records from the Constitutional Convention also

show that linking congressional apportionment to

taxation was inspired, in part, as a way to cement the

Three-Fifths Compromise. Jensen, Interpreting the

Sixteenth Amendment, 21 Const. Comment. at 375

(citing 2 Farrand at 106). Northerners could take sol-

ace that partially counting slaves also meant the

South would pay more in direct taxes. Southerners

were less eager to increase the ratio to five-fifths,

knowing that doing so would also increase their di-

rect taxes. “The controversy was therefore settled by

imposing direct taxation upon the States in the same

proportion in which they might be represented upon

their slave population.” Globe at 3033 (statement of

Sen. Henderson). Although once again this purpose is

no longer relevant today—and indeed may rightfully

he seen as rather sordid—it sheds light on the moti-

vations behind the constitutional design we have.

3. No such cencerns are operative today

at the state level.

There were several factors that produced the rule

that ultimately arose from the Constitutional Con-

vention, that representation in Congress and direct

taxes would be mutually linked to total population.

But the lesson this Court can take from these com-

plexities is a very simple one: absolutely none of

these issue, concerns, or compromises have any rela-

tion to the workings of the Texas government of 2015.

Neither Texas nor any other state imposes direct tax-

es on its various subdivisions by total population. It

was already recognized in 1866 that no state had bor-

rowed the federal Constitution’s model, that “[i]t has

been adopted in no State, in no county, in no town, in

no municipal corporation, of apportioning taxation

according to population.” Globe at 378 (statement of

Rep. Sloan). Nor has Texas suggested that chronic

underreporting of population figures in its subdivi-

sions might be a serious problem, one that would re-

quire the reward of representation based on total

population to counteract.

D. The Federal Rule Was Preserved in 1866

to Ensure Virtual Representation for

Women, not Aliens

1. The Fourteenth Amendment rejected a

theory of virtual representation for

nonvoting blacks.

“Virtual representation” is the democratic theory

that where one person votes with the interests of both

himself (gendered pronoun alas intentional) and oth-

er particular nonvoters in mind, the weight of his

vote should somehow be increased to reflect the full

number of those he is virtually representing. “The

founding generation used concepts of virtual repre-

sentation to ... enablie] one eritity to speak for—to

virtually represent—another, larger one.” Akhil Reed

Amar, Philadelphia Revisited: Amending the Consti-

tution Outside Article V, 55 U. Chi. L. Rev. 1043,

1075 n.117 (1988).

Since the nation’s founding, the concept of virtual

representation for disenfranchised persons has been

in an uneasy tension with the principles that led to

the Revolution. “To say that men could be fairly rep-

resented by those whom they had played no part in

choosing rang just as false as the royal claim that the

colonists were adequately, if virtually, represented by

British members of Parliament.” Keyssar, The Right

to Vote 12 (revised ed. 2009). The legitimacy of virtu-

al representation is, nonetheless, a necessary prereq-

uisite to the legitimacy of justifying population-based

districts on democratic grounds, since “the conclusion

that [representing all interests equally] requires total

population-based districting plans assumes that the

non-voters in a district are ‘virtually’ represented by

the voters in their district.” Scot A. Reader, One Per-

son, One Vote Revisited, 17 Harv. J.L. & Pub. Pol’y

521, 557—58 (1994).

Justice Harlan has gamely attempted to attribute

a theory of virtual representation to the Framers’

choice to (partially) include nonvoting slaves in the

enumeration that determined state representation.

“(I]t might have been thought that Representatives

elected by free men of a State would speak also for

the slaves. But ... Representatives from the slave

States could have been thought to speak only for the

slaves of their own States, indicating ... that the

Convention believed it possible for a Representative

elected by one group to speak for another nonvoting

group.” Wesberry, 376 U.S. at 27 (Harlan, J., dissent-

ing). Derek Muller similarly suggests that “the Elec-

toral College was founded upon a kind of republican

vision of virtual representation in which a number of

residents (including women, children, aliens, non-

property owners, and, in part, slaves) would be in-

cluded in a state’s population tally.” Muller, Invisible

Federalism, 44 Ariz. St. L.J. at 1243. It is more likely

that the (at least northern) Framers never truly be-

lieved the interests of slaves to be aligned with their

masters, and only supported assigning slaves any

weight in a state’s enumeration out of expediency.

But regardless, the effect of the Three-Fifths Com-

promise was indisputably one of virtual representa-

tion, since “(t]he power thus agreed upon could not be

exercised by the fractional persons themselves, but as

somebody else owned them, it was arranged that that

same somebody else should own the political power

also.” Globe at 365 (statement of Rep. Conkling).

After the Civil War, when those slaves had been

freed from any formal paternalistic relationship to

their former owners, and had political interests that

were diametrically opposed to those former owners,

the notion of their being “virtually represented” by

white voters went from dubious to patently absurd.

Yet, without a change to the constitutional rule at the

time, “the disenfranchised but freed slaves would

count not as three-fifths in the apportionment of

House seats but as five-fifths.” Mark S. Scarberry,

Historical Considerations and Congressional Repre-

sentation for the District of Columbia, 60 Ala. L. Rev.

783, 819—20 (2009).

Members of Congress from free states that had lit-

tle to no black populations, realizing the inequality in

voting strength that would result, asked “in fairness,

why should two Marylanders count equal to three Io-

waians [sic]? Globe at 767 (statement of Sen. Kirk-

wood). Cf. id. at 434 (statement of Rep. Ward); id. at

1255 (statement of Sen. Wilson). Rep. Donnelly anal-

ogized the outsized voting strength of white men in

states with large black populations to the “rotten bor-

ough system” of the English Parliament. Jd. at 377.

In response, some Democratic allies of the south-

ern states, citing virtual representation principles,

continued to make “the startling claim that members

of Congress elected by white voters provided virtual

representation for blacks, und thus a failure to pro-

vide representation for the black population would be

taxation without representation.” Scarberry, Histori-

cal Considerations, 60 Ala. L. Rev. at 842. One such

claim was the speech of Rep. Phillip duhnson of

Pennsylvania, who declared that reducing a state’s

representation by its number of nonvoting blacks

would be to “limit the class of persons who shall be

represented [in Congress] to white male adults” and

“take away from the entire negro population, now all

free alike, all representation whatever.” Globe app. at

55 (1866). In the very same address, Rep. Johnson

made appeals to a theory of virtual representation

that would not sound wholly out of place coming from

supporters of representational equality of populations

(as opposed to voter equality) among legislative dis-

tricts today. (Of course, knowing they were made in

the context of freed blacks in the Reconstruction

South, these sentiments now rightfully appear either

hopelessly naive or disingenuous.)

A faithful member of Congress represents the

whole population of his district, male and fe-

male, black and white ... If he relies wholly

upon the voters of his district for the expressed

wish of his whole constituency he may err, but

not; unless the voters are unfaithful represent-

atives of the population behind them. And this

is not likely to happen, because men’s wishes,

when intelligibly made, are found to be with

their interests. The vote of the husband is sup-

posed to represent the interests of his wife, and

so the father those of his children, and these

aggregated make up the public weal, common-

wealth, or respublica.

Id.

Rep. Rogers of New Jersey spoke in similarly

glowing terms of the principle of full representa-

tion for all persons, disenfranchised or not. “What

is there more democratic and republican in the in-

stitutions of this country than that the people of

all classes, without regard to whether they are

voters or not, white or black, who make up the in-

telligence, wealth, and patriotism of the country,

shall be represented in the councils of the nation.”

Id. at 353. Cf. Daly v. Hunt, 93 F.3d 1212, 1226

(4th Cir. 1996) (“[RJepresentatives should repre-

sent roughly the same number of constituents, so

that each person, whether or not they are entitled

to vote, receives a fair share of the governmental

power, through his or her representative.”); Cal-

deron, 481 P.2d at 493 (“Adherence to a popula-

tion standard, rather than one based on registered

voters, is more likely to guarantee that those who

cannot or do not cast a ballot may still have some

voice in government.”)

But the enactors of the Fourteenth Amendment

rejected these arguments of representational equality

as being in the best interest of freed slaves, recogniz-

ing that under the then-current system “the negro of

the South ... has his vote cast for him ... by his

white and hardly more loyal neighbor,” Globe at 2498

(statement of Rep. Broomall), and that “if men have

no voice in the national Government, other men

should not sit in this Hall pretending to represent

them.” Id. at 377 (statement of Rep. Donnelly). The

enactors thus explicitly included in that amendment

the only exception to the federal rule that congres-

sional seats are allocated by total population. “But

when the right to vote at any election for ... Repre-

sentatives in Congress ... is denied to any of the

male inhabitants of such State, being twenty-one

years of age, and citizens of the United States, or in

any way abridged, except for participation in rebel-

lion, or other crime, the basis of representation there-

in shall be reduced in the proportion which the num-

ber of such male citizens shall bear to the whole

number of male citizens twenty-one years of age in

such State.” U.S. Const. Amend. XIV, § 2.

In other words, if a state did not allow blacks to

vote, and blacks represented 40% of adult male citi-

zens, the congressional allocation would be based on

the total population of the state decreased by 40%.

Thus, the only time that drafters of the federal rule

confronted a situation where nonvoters would obvi-

ously not be virtually represented, and were not

guaranteed to obtain the vote in a definite period of

time, the drafters eliminated those nonvoters from

the apportionment calculus. As we show infra, Part

I.D.3, these criteria have come to perfectly describe

the position of aliens today.

2. The Fourteenth Amendment retained

the population rule to ensure women

would be represented.

Why, with the theory of virtual representation so

clearly repudiated in the case of freed slaves, did the

Fourteenth Amendment not move fully to a voter-

based system of apportionment? Such proposals were

made and debated. “[W]e have had several proposi-

tions to amend the Federal Constitution ... all em-

brac[ing] substantially the one idea of making suf-

frage instead of population the basis of apportioning

Representatives; or in other words, to give to the

States in future a representation proportioned to

their voters instead of their inhabitants.” Globe at

141 (statement of Sen. Blaine). See proposals of Rep.

Schenck, id. at 9, Rep. Stevens, id. at 10, Rep.

Broomall, id., Rep. Sloan, id. at 378, Rep. Orth, id. at

380-81, and Sen. Doolittle, id. at 2942.

In support of retaining the population-based rule,

Sen. Hendricks defended the theory of virtual repre-

sentation, but only in the context of family members,

not aliens. “The theory is that fathers, husbands,

brothers, and sons to whom the right of suffrage is

given will in its exercise be as watchful of the rights

and interests of their wives, sisters, and children who

do not vote as of their own.” Jd. at 2962. Similarly,

Sen. Fessenden, chairman of the amendment’s draft-

ing committee, suggested that wives plausibly had

tangible effects on the votes of husbands in a way

that nonvoters outside the family structure did not

have, and thus were fairly counted in representation.

“I could hardly stand here easily if I did not suppose I

was representing the ladies of my State. I know, or I

fancy I know, that I have received considerable sup-

port from some of them, not exactly in the way of vot-

ing, but in influencing voters.” Jd. at 705.

With the virtual representation of women in mind,

Sen. Hendricks voiced objection to a voter-based sys-

tem of representation because “new States to a great

extent are settled by emigration from the older

States, and it has been and will ever continue to be

the case that a much larger proportion of this emigra-

tion are male. The consequence is that the newly set-

tled States contain a very much larger proportion of

males than-the older States, and therefore a much

larger ratio of voters.” Id. at 2962. According to Sen.

Blaine, who likewise opposed changing the rule, this

disparity was indeed substantial, with “[t]he ratio of

voters to population ... varying in the [nineteen free

states} from a minimum of nineteen per cent. to a

maximum of fifty-eight per cent.” Jd. at 141. It was

thus primarily for the protection of virtual represen-

tation for nonvoting women (read: wives) that the

population basis for apportionment was retained in

1866, not for the virtual representation of aliens.

3. Aliens were retained in apportionment

for several reasons unrelated to virtual

representation.

Does the continued inclusion of nonvoting aliens

in the allocation of representatives lend support to a

notion that the drafters of the Fourteenth Amend-

ment did think that aliens were virtually represent-

ed? In fact, George Smith provides a representative

list of 12 instances where the issue of aliens in appor-

tionment was discussed in congressional debate over

Section 2, by supporters and opponents of the

amendment alike, and in none of these instances is it

suggested that aliens’ interests were virtually repre-

sented by voters living near them, nor that aliens’ in-

terests were served by maintaining state “representa-

tional equality.” Smith, Republican Reconstruction

and Section Two, 23 Western Pol. Q. at 851 n.146.

First and foremost, congressional debate shows

that nonvoting aliens were kept in a state’s appor-

tionment total for precisely the reasons discussed in

Part I.B., supra. To do otherwise would have been to

give states an incentive to grant the vote to as many

of its resident aliens as possible. This rationale was

explicitly put forward in opposition to suffrage-based

representation multiple times. “There would be an

unseemly scramble in all the States during each dec-

ade to increase by every means the number of voters,

and all conservative restrictions, such as the re-

quirement of reading and writing now enforced in

some of the States, would be stricken down in a rash

and reckless effort to procure an enlarged representa-

tion in the national councils. Foreigners would be in-

vited to vote on a mere preliminary ‘declaration of in-

tention.” Globe at 141 (statement of Sen. Blaine).

Similarly, Rep. Conkling, a member of the drafting

committee, suggested that “[i]f voters alone should be

made the foundation of representation . . . [o]ne State

might let women and minors vote. Another might .. .

give the ballot to those otherwise qualified who have

been resident for only ten days. Another might ex-

tend suffrage to aliens. This would lead to a strife of

unbridled suffrage.” Jd. at 357. And Sen. Fessenden,

the chairman, likewise worried of “an unseemly race

between States to increase their political power by

increasing the number of their voters.” Jd. at 705.

Once again, establishing a uniform nationwide

standard of the franchise would have been necessary

to solve this problem, as one proponent of moving to

suffrage-based representation fully admitted when he

proposed an amendment “making the qualification

universal ... that qualified male electors, citizens of

the United States of the age of twenty-one years and

upward, shall be the basis of representation.” Id. at

378 (statement of Rep. Sloan). But once again, for

reasons of federalism, “there was considerable opposi-

tion within both the Committee itself and Congress

as a whole to any measure that would strip the states

of their power to control suffrage and elections. .. .

[T]he Committee rejected two proposals that would

have given Congress express control over ‘elective’

rights and ‘the elective franchise.” Mark R. Killen-

beck & Steve Sheppard, Another Such Victory? Term

Limits, Section 2 of the Fourteenth Amendment, and

the Right to Representation, 45 Hastings L.J. 1121,

1178 (1994) (citations omitted).

Rep. Bingham, the committee member considered

the primary author of the Fourteenth Amendment,

felt the need to reassure that “this amendment takes

from no State any nght that ever pertained to it....

The amendment does not give, as the second section

shows, the power to Congress of regulating suffrage

in the several States.” Globe at 2542. Likewise in the

Senate, Sen. Howard stressed that “[t]he second sec-

tion leaves the right to regulate the elective franchise

still with the States, and does not meddle with that

right.” Id. at 2766.

Further, nonvoting aliens were not treated as a

serious democratic problem by the drafters of the

Fourteenth Amendment because it was assumed that

all would, after a fairly short and uniform period of

time, become citizens and therefore voters. Rep.

Conkling remarked that, at the founding, the ques-

tion of “how [aliens] should be treated during the in-

terval between their arrival and their naturalization,

during their political nonage ... was disposed of in

the liberality in which the Government was con-

ceived. The political disability of aliens was not for

this purpose counted at all against them, because it

was certain to be temporary, and they were admitted

at once into the basis of apportionment.” Jd. at 356

(emphasis added).

In 1866, many states actually allowed aliens to

vote even before they had attained citizenship. “Up to

1875 over half the states allowed aliens to vote if they

met certain other requirements, like residence.” Pe-

ter Odegard, The American Republic 76 (1964). This

progress toward the franchise was put forward as the

reason for counting aliens in contrast to the virtual-

representation justifications for counting women.

“The road to the ballot is open to the foreigner; it is

not permanently barred. It is not given to the woman,

because it is not needed for her security. Her inter-

ests are best protected by father, husband, and

brother.” Globe at 3035 (Sen. Henderson).

More specifically, since enumerations were taken

only every 10 years, it was assumed that most of

those aliens counted would become voters before the

next census. Rep. Kelley asked with rhetorical under-

statement “whether it is not possible that the male

minor may come to an age that will secure him the

right to vote; and whether it is not possible for the

unnaturalized foreigner also to acquire that right;

and whether ... both may acquire it in the current

decade.” Id. at 354. Rep. Kelley explicitly contrasted

the position of the nonvoting alien with that of the

“freeman who can never vote [and who] should not be

counted among voters and possible voters in fixing

the basis of suffrage.” Jd. Both opponents and sup-

porters of treating aliens differently from freed slaves

agreed that five years was at the longest end of po-

tential waits for the vote. See id. at 2939 (“[I]n some

of the Northern states the foreigner is denied a vote

for five years.”) (statement of Sen. Johnson); id. at

2987 (“Nearly all the men who come to this country

are naturalized in five years.”) (statement of Sen.

Sherman). Thus, the drafters of the Fourteenth

Amendment did not have in mind a conception of al-

iens as those who might inhabit a state of residency

without progress toward citizenship lasting for dec-

ades, a picture that, unfortunately, has evolved to be-

come a common reality in 2015.

Most bluntly, Rep. Conkling also admitted that

“many of the large States now hold their representa-

tion in part by reason of their aliens, and the Legisla-

tures and people of these states are to pass upon the

amendment. Jt must be made acceptable to them. For

these reasons the committee has adhered to the Con-

stitution as it is, proposing to add to it only so much

as is necessary to meet the point aimed at.” Jd. at 359

(emphasis added). See also id. at 537 (“I do not think

it would be wise to ... send to the people a proposi-

tion to amend the Constitution which would take

such Representatives [founded upon noncitizens]

from those States, and which therefore they will nev-

er adopt.”) (statement of Rep. Stevens). The fact that

aliens are still retained in the apportionment totals

for House members thus may have a great deal more

to do with politics (of 1866) than with principle, fur-

ther weakening the strength of any federal analogy.

4. Aliens are not “virtually represented”

by voters who happen to live near

them.

The example of the Reconstruction South puts in

stark display the absurdity of the notion that geo-

graphic proximity will always have a high correlation

with political interests. Sometimes the political views

of voters and nonvoters who live near each other will

be diametrically opposed. And this is still true even

when (as has become more frequently the case since

courts have aggressively enforced their interpretation

of Section 2 of the Voting Rights Act above all other

concerns) a district is largely racially homogenous.

This Court has always conditioned an assumption

that voters of one race virtually represent other vot-

ers of the same race upon an empirical finding that

racial bloc voting is, in fact, already taking place. See,

e.g., United Jewish Organizations v. Carey, 430 U.S.

144, 166 n.24 (1977) (“[T]he white voter who... is in

a district more likely to return a nonwhite repre-

sentative will be represented, to the extent that voting

continues to follow racial lines, by legislators elected

from majority white districts.”) (White, J., plurality

op.) (emphasis added). This Court’s test for determin-

ing that a racial group is being electorally un-

derrepresented requires showing “the existence of a

correlation between the race of voters and the selec-

tion of certain candidates.” Thornburg v. Gingles, 478

U.S. 30, 74 (1986). But, of course, an examination of

voting patterns cannot show the existence of a corre-

lation between the political preferences of voters and

nonvoters of the same race. Allowing Texas to assume

that its ineligible voters will share the political pref-

erences of eligible voters of the same race would,

then, be the first time this Court has endorsed a be-

lief that homogenous racial-bloc political preferences

are inevitable and need no empirical verification.

It is plausible that eligible and ineligible voters of

the same race would often not be identical in political

preferences. We can imagine, for example, a hypo-

thetical heavily Hispanic state senate district in Tex-

as. Suppose this district is a mix of nonvoting aliens,

recently naturalized citizens, and second-or-third-

generation Americans of Spanish descent. On issues

such as whether immigration queues to enter the

country should be strictly enforced and the extent to

which Texas should police its border with Mexico, can

we assume the political opinions of everyone in each

of these groups will be aligned? Or is it more plausi-

ble that a not-insignificant percentage of Hispanic

citizens will vote on immigration issues in a way that

is completely opposed to the interests of nonvoting

Hispanics? If so, counting those alien Hispanics in

the total for apportioning voting strength to the vot-

ing Hispanics near them may hurt their political in-

terests in exactly the same way that counting nonvot-

ing blacks in the apportionment of House members to

be elected by southern whites would have harmed the

interests of those nonvoting blacks.

Using unfranchised persons to give greater politi-

cal power to franchised persons is, then, a dangerous

game that can cut both ways. Neither the hope that

neighbors will always share a desire for local pork

projects nor superficial political sterectyping based on

race are enough to justify allowing certain citizens to

“own the political power” of those who live near them.

5. Concerns for representing nonvoting

women are no longer relevant.

Since the enfranchisement of women, the repre-

sentative concern that actually motivated the draft-

ers of the Fourteenth Amendment no longer carries

any weight. Where men spoke for women, biasing

representation to states with more males, and there-

fore more voters, would have underrepresented the

(implicit) voices of women in the states in which they

lived in greater numbers. There is no analogous prin-

ciple supporting greater voting power for residents of

districts with large numbers of resident aliens. A de-

tailed examination of the history of the passage of the

Fourteenth Amendment shows that it outright reject-

ed one claim of virtual representation (that of former

slaves) and included aliens for concerns entirely

apart from virtual representation, which have no

analogy at the state level.

E. The Federal Rule Does Not Result in

Voting Strength Disparities of the Same

Scale as the Texas Plan

1. The larger size of states naturally in-

clines them toward heterogeneity.

Finally, it is worth actually comparing the dispar-

ities at the inter-state level caused by the federal rule

to those caused by Texas’s proposed districting plan

S172, to see if the results are as analogous as Texas

claims the purposes are. After controlling for the fact

that states must be allocated representatives in

whole numbers,? the following chart shows the five

most overrepresented and five most underrepresent-

ed states in the House of Representatives in terms of

voter population in 2014, along with the U.S. aver-

age. (Data from Pew Hispanic, Mapping the Latino

Electorate by State,

http://www.pewhispanic.org/interactives/mapping-

the-latino-electorate-by-state/.)

2 For example, Montana’s population of 1,005,000 receives only

one representative, while Rhode Island’s population of 1,050,000

receives two, which affects both the figures for representatives

per person and representatives per voter. To eliminate the ef-

fects of this unrelated issue, the data has been “equalized” to

reflect the number of voters each state would have, keeping the

ratio of eligible voters to nonvoters in each state the same, if

each state’s total population were exactly 721,641 people per

representative, the national average.

FIGURE 1

Eligible Voters per

Representative % of

% Eligible (equalized for Ideal

State Voters rounding issues) State

California 62.6 451,887 89.3

Texas 63.5 458,257 90.6

Utah 64.2 463,569 91.6

‘ Nevada 66.1 477,084 94.3

Arizona 67.7 488,619 96.6

U.S. Average 70.1 506,002 100

New Hamp-

shire 76.8 553,932 109.5

Montana 77.4 558,644 110.4

Maine 78.6 566,888 112

West Virginia 78.7 567,587 112.2

Vermont 78.8 568,321 112.3

This Court’s “decisions have established, as a gen-

eral matter, that an apportionment plan with a max-

imum population deviation under 10% falls within

th{e] category of minor deviations. A plan with larger

disparities in population, however, creates a prima

facie case of discrimination and therefore must be

justified by the State.” Brown v. Thomson, 462 U.S.

835, 842-43 (1983). Even if this standard were ap-

plied to eligible voter population rather than total

population, only five of the fifty states would have

disparities from the mean large enough to raise judi-

cial scrutiny (California being the only state that

would receive scrutiny for overrepresentation). None

come near the 16.4% discrepancy that “may well ap-

proach tolerable limits” of constitutionality in other

contexts, even with compelling justifications. Mahan

v. Howell, 410 U.S. 315, 329 (1973).

2. One fifth of the Texas districts are

more malapportioned than the most

malapportioned state.

When we compare this to the disparity that arises

between districts within Texas, we see that it is a

disparity of an entirely different magnitude. Using

the most recent CVAP data available, we can once

again look at the five most underrepresented and

overrepresented districts among the 31 total senate

districts drawn up under plan S172. (Data for this

and the following chart comes from ACS, Plan S172

Special Tabulation 2009-2013 ftp://

ftpgis1.tlc.state.tx.us/PlanS172/Reports/PDF/PlanS17

2 RED116_ACS_Special_Tabulation_2009-2013.pdf).

FIGURE 2

% of Ideal

District % CVAP CVAP District

6 47.2 383,985 73.5

27 50.8 399,530 76.5

13 52.9 427,820 81.9

23 57.4 466,660 89.3

29 57.4 469,130 89.8

Texas Average 64.4 522,508 100

1 71.2 83,460 —«:111.7

5 70.7 584,895 111.9

30 72.2 598,630 114.6

25 73.8 602,120 115.2

3 72.5 611,435 117

The Texas plan has a total of 11 out of 31 districts

that fall more than 10% above or below the statewide

average in CVAP. Four districts fall outside the Ma-

han range of justifiability. Even though there are on-

ly 31 districts, compared to 50 states, three districts

are more overrepresented than the most overrepre-

sented state, and likewise three districts are more

underrepresented than the most underrepresented

state. Most strikingly, the plan includes two districts,

6 and 27, that fall below the ideal CVAP by more

than double the percentage points that California, the

most overrepresented state in the country, falls below

the ideal U.S. state.

It is true that the districts under plan S172 do

vary (all within the well-established 10% range) by

total population as well as CVAP population, and

that part of the disparities in the totals for CVAP are

caused by the disparities in total population, not in

percent CVAP. The legislature bears more responsi-

bility for these differences in total population than

does the U.S. Congress for the disparities caused by

the rounding of representatives to states by whole

numbers—but even if we again equalize the districts

to reflect CVAP they would have if their total popula-

tions were perfectly equal, we see that barely a dent

would be made in the CVAP disparities.

FIGURE 3

CVAP (Total

Population % of Ideal

District % CVAP Equalized) District

6 47.2 383,166 73.3

27 ~=—s- 50.8 411,817 788

i3 «62.9 429.125 82.1

23. «57.4 465,196 89

29 «57.4 465,951 89.2

Texas Average 64.4 522,508 y 100

28 =: 71.8 582,436 111.5

30 «72.2 585,333 112

24 «72.4 587,516 112.4

3 72.5 587,936 112.5

25 73.8 598,707 114.6

3. State boundaries cannot be gerryman-

dered to create “grossly absurd and

disastrous results.”

This Court has previously recognized that “grossly

absurd and disastrous results would flow” in some

cases from using total population to draw state legis-

lative boundaries, such as where military bases fluc-

tuate wildly in population and “permanent residents

living in districts including [such] bases might have

substantially greater voting power than the electors

of districts not including such bases.” Burns v. Rich-

ardson, 384 U.S. 73, 94 & n.24 (1966). A similar issue

is that “liJneligible incarcerated felons, for instance,

are typically counted for apportionment purposes in

the prisons where they are incarcerated.” Robert W.

Bennett, Should Parents Be Given Extra Votes on Ac-

count of Children?, 94 Nw. U. L. Rev. 503, 511 (2000).

There will never be a statewide prison or a statewide

military base, nor could any politician create one,

since the boundaries of states, unlike the boundaries

of state legislative districts, cannot be gerryman-

dered. But without the intervention of this Court in

providing a voter-based standard of apportionment

for state legislative districts, nothing would prevent a

creative legislator from drawing exactly such a dis-

trict within a state, and potentially giving control

over the election of a state representative to as small

and select a group of voters as he or she wishes. This

possibility again draws a stark disanalogy between

the apportionment rule as it must play out at the fed-

eral level, and as it could play out at the state level.

Il. “ENFORCING” THE VOTING RIGHTS ACT

DOES NOT JUSTIFY ABRIDGING ONE

PERSON, ONE VOTE?

Once again this Court finds itself at the intersec-

tion of the VRA and the Fourteenth Amendment. The

parties here are caught in the inevitable trap of (1)

maintaining majority-minority districts under com-

plex, overlapping standards and (2) administering

electoral schemes that do little to advance racial

equality while doing much to violate voter equality—

the idea that each eligible voter’s vote should count

3 This argument is set forth in more detail in amici’s bnef sup-

porting the Appellants’ jurisdictional statement, available at

http://object.cato.org/sites/cato.org/files/pubs/pdf/evenwel-filed-

brief. pdf.

equally. In the background of this conflict lurks a ca-

cophony of precedent and conflicting judicial stand-

ards that have arisen from Section 2 cases. Basic

constitutional guarantees of equal protection inher-

ent in the Fourteenth Amendment—such as “one per-

son, one vote” (OPOV)—get lost in this thicket.

Avoiding racial discrimination under these cir-

cumstances is particularly difficult in jurisdictions

where total population and CVAP diverge due to var-

ied concentration of noncitizens. As with the tensions

amicus Cato has described before, jurisdictions navi-

gating between the VRA’s Scylla and the Constitu-

tion’s Charybdis are bound to wreck individual

rights—here, voter equality—on judicial shoals.‘

Over the years, courts, including this Court, have

repeatedly recognized the potential for devaluing in-

dividual votes by drawing majority-minority districts

in a manner that accords greater weight to minority

votes in protected districts and diminishes the rela-

tive weight of voters elsewhere. See, e.g., Alabama

Legislative Black Caucus v. Alabama, 135 S. Ct. 1257

(2015). Even the Fifth Circuit recognized this danger

while ultimately ruling the other way. Chen, 206 F.3d

at 528 (“[T)he propriety under the Equal Protection

Clause of using total population rather than a meas-

ure of potential voters also preserits a close ques-

tion.”). Nevertheless, here the special district court

panel adhered to that flawed lower-court precedent—

tepidly refusing to acknowledge CVAP as integral to

OPOV and thus a requisite element of constitutional

* Amicus Cato has previously argued that courts faced a “bloody

crossroads” when interpreting Sections 2 and 5 of the VRA. See,

e.g., Brief of Cato Inst. as Amicus Curiae at 20-28, Shelby Coun-

ty v. Holder, 133 S. Ct. 2612 (2013); Brief of Cato Inst. as Ami-

cus Curiae at 29-32. Perry v. Perez, 132 S. Ct. 934 (2012).

equal protection. At least one member of this Court

has already recognized the urgency of the problem:

“Having read the Equal Protection Clause to include

a ‘one-person, one-vote’ requirement, and having pre-

scribed population variance that, without additional

evidence, often will satisfy the requirement, we have

left a critical variable in the requirement undefined.”

Chen v. City of Houston, 532 U.S. 1046, 1047 (2001)

(Thomas, J., dissenting from denial of certiorari).

Section 2 and the Fourteenth Amendment have

thus reached an impasse that has been highlighted

by a conflict among lower courts’ application of

OF OV. See Chen, 206 F.3d 502; Lepak v. City of Ir-

ving, 453 Fed. Appx. 522 (5th Cir. 2011); Daly v.

Hunt, 93 F.3d 1212; Garza, 918 F.2d 763. This Court

has clearly left pending a substantial question re-

garding the continued viability of OPOV and voter

equality under the Fourteenth Amendment. Accord-

ingly, this Court should resolve that conflict once and

for all—by explaining the proper use of different pop-

ulation metrics and saving OPOV from the judicial

morass the VRA has become.

CONCLUSION

For the foregoing reasons, and those described by

the Appellants, this Court should reverse the lower

court’s judgment.

Respectfully submitted,