One person, no vote: staggered elections, redistricting, and disenfranchisement.

AuthorWeston, Margaret B.

Every ten years, California redraws the maps for its State Senate districts in order to restore compliance with the constitutional "one person, one vote" requirement. (1) Because state senatorial districts hold staggered elections, redistricting allows some Californians to cast two votes for a state senator within a four-year election cycle: once in their old senatorial district, and once again, just two years later, in their new senatorial district. Meanwhile others do not vote for a state senator at any point within the same four-year timeframe. Redistricting therefore creates the exact harm it intends to prevent: in service of the ideal of "one person, one vote," California gives some voters two votes and others no vote at all. During the current cycle, an estimated 3.97 million Californians will be temporarily disenfranchised on account of redistricting; (2) another 3.9 million will be double-enfranchised. (3)

The problem arises from the intersection of the ten-year redistricting cycle with California's system of staggered State Senate elections. Every two years, half of California's state senators stand for election, with odd-numbered districts holding elections in presidential-election years and even-numbered districts holding elections in midterm-election years. When redistricting moves a voter from an odd district to an even district, that voter is placed in democratic limbo: her old senator's term ends in 2012, but her new district does not hold elections until 2014. Thus for two years, that voter is not represented by a senator for whom she had an opportunity to cast a ballot, a status euphemistically termed "deferral." A voter moved from an even to an odd district faces the opposite scenario: she can vote in her new district in 2012, even though her old senator, whom she elected in 2010, will continue serving through 2014. These "accelerated" voters thus cast ballots in races for two State Senate seats, while most Californians only cast ballots for one senator, and deferred voters cast ballots for none.

This problem is not unique to California: twenty-eight states elect one or both houses of their legislature by staggered terms. (4) Each of these states must balance legislative continuity and state constitutional requirements with democratic participation and federal equal protection principles in reconciling staggered elections with decennial redistricting. This Comment identifies the methods various states use to resolve this problem, and it argues that California and states employing unmodified staggered elections ought to adopt a system of truncated terms, whereby all State Senate districts hold elections in the first election year following redistricting. Such a system would better fulfill constitutional and democratic norms of equal participation and would be more consistent with the policy preferences of California voters.

Part I describes California's system, variants in other states, and the resulting inequality among voters. After Part II explores Florida's alternative system of truncated terms, Part III argues that a Florida-style system is preferable to California's because it is more consistent with constitutional and democratic norms. Part IV examines the counterargument that continued staggering serves the state's interest in institutional continuity and concludes that other democratic values must take precedence.

  1. HOLDOVERS, ACCELERATED TERMS, AND DEFERRED VOTERS: THE CALIFORNIA SYSTEM

    The California Constitution, adopted in 1879, requires that elections for State Senate be staggered, with half of all senatorial districts holding elections every two years. (5) In 1964, the Supreme Court ruled in Reynolds v. Sims that states must ensure that legislative districts are roughly equal in population in order to comply with the Equal Protection Clause. (6) To comply with Reynolds, California adopted a system of decennial redistricting; however, it has not amended its constitution's system of staggered elections to alleviate the resulting problem of deferred and accelerated voters described above. The California Supreme Court endorsed this convoluted system in its 1973 decision in Legislature v. Reinecke, reasoning that "[t]o obviate the inequality [between voters] would substantially interfere with the orderly operation of the four-year staggered terms system after every reapportionment." (7) Thus, the intersection of the nineteenth-century state constitution and the twentieth-century redistricting mandate has generated a democratic dilemma: every ten years voters may elect one, two, or zero state senators owing solely to the vagaries of the redistricting process.

    Californians reformed the state's redistricting process in the Voters First Act of 2008, which established an independent redistricting commission and required that new district lines be drawn without regard to the incumbent's place of residence. (8) Having separated many voters from their legacy districts, the first Citizens Redistricting Commission considered the issue of deferral and acceleration only after the district boundaries were drawn. (9) In the current electoral cycle, the Commission worked to minimize the number of deferred (odd-to-even) voters by determining which districts had the greatest proportion of formerly-odd voters and assigning those districts odd numbers. (10) For those voters still deferred, this is little consolation: for the next two years, they must be represented by a state senator they had no voice in electing, for reasons completely outside of their control.

    California is not alone in its non-solution. Similarly, Oregon," Tennessee, (12) Kentucky, (13) Indiana, (14) Missouri, (15) Nevada, (16) Oklahoma, (17) Utah, (18) Washington, (19) West Virginia, (20) and Wisconsin (21) do not modify their existing staggeredelection system to account for the impact of decennial redistricting. Nonmodification is the rule in any state without an explicit constitutional provision or state court decision changing the system of elections, since without explicit legislative, judicial, or constitutional authorization to do otherwise, the ordinary system of staggered elections required by statute or state constitution continues to operate. (22)

    Other states reassign legislators whose terms continue past redistricting (termed "holdover" legislators) to represent new districts. Nebraska, (23) Montana, (24) Oklahoma, (25) Pennsylvania, (26) and Ohio (27) reassign holdover legislators to represent a newly drawn district (generally, the new district with the largest proportion of constituents from that legislator's old district or the new district where the legislator resides). States without holdover reassignment leave holdover legislators in their existing numbered seats, often even temporarily waiving in-district residency requirements to allow legislators to represent districts they no longer live in. (28) Despite their variations, these California-style systems still defer voters; many voters in these states see the terms of the legislators they elected elapse and then must wait two years before electing a new legislator. (29) The numbers of voters affected are often uncounted, but can be large: for example, in Pennsylvania 1.3 million voters were deferred following the 1990 census; (30) in Kentucky just over 351,000 citizens may be deferred after the 2010 census. (31)

  2. TRUNCATION, SPECIAL ELECTIONS, AND THE RESET BUTTON: THE FLORIDA MODEL

    In contrast, other states avoid deferring or accelerating voters by requiring all districts to hold elections in the first cycle following redistricting. Statewide senatorial elections "reset" the staggered election cycle, ensuring that all voters are represented by a senator they had the opportunity to elect under the new districting plan.

    Florida, like California, conducts staggered senatorial elections. (32) Unlike California, however, Florida effectively requires that all districts hold elections in the first general election following redistricting. (33) Florida's constitution requires all senators to be elected from the districts they represent, (34) and explicitly allows some state senators to serve two-year--rather than four-year-terms following redistricting. (35) Based on the intersection of these provisions, the Florida Supreme Court held that "senate terms [must] be truncated when a geographic change in district lines results in a change in the district's constituency." (36) To restore staggering, Florida returns to the normal election schedule after the off-cycle post-redistricting statewide elections, in effect causing odd- and even-numbered districts to alternate truncated terms every ten years.

    In this way, the Florida system restores symmetry: all senators are elected by residents of their districts as currently drawn, and all voters have the opportunity to vote for their current senator. Texas, (37) Illinois, (38) Arkansas, (39) and Iowa (40) all employ similar systems, although they restore staggering by drawing lots to allocate short and long terms. These systems represent a solution to the California scheme's problems: they produce no deferred or accelerated voters. Yet they also make tradeoffs. By truncating some senators' terms once every ten years, the Florida system incurs costly statewide elections, while disrupting the continuity benefits of a staggered system of elections. However, as Parts III and IV will argue, the democratic and constitutional benefits outweigh the COSTS.

  3. ONE PERSON, ONE VOTE, ONE SENATOR, ONE MAP: THE CASE FOR TRUNCATION

    Adopting a complete truncation model like Florida's is the option most consistent with constitutional principles and the priorities of the people of California. As a matter of law, Reinecke's analysis of the equal protection argument against deferral is flawed on multiple levels, including the nature of the harm and the appropriate level of scrutiny; these defects call the system's constitutional...

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