Seats, votes, citizens, and the one person, one vote problem.

• Author: Gaddie, Ronald Keith

INTRODUCTION

Few passages from American court cases have become as familiar as "one person, one vote." Although we know of no authoritative count of the frequency with which that phrase has appeared in print, we suspect that it may even rival the usage of such famous passages as "to be, or not to be" (1) and something is rotten in the state of Denmark." (2) References to "one person, one vote" appear not only in legal writings concerning districting practices but have become so widely used by journalists that many lay persons recognize the meaning.

One person, one vote is the yardstick against which redistricting plans have come to be compared, but the phrase did not originate in a redistricting dispute. Justice William O. Douglas first used "one man, one vote" in the 1962 challenge to Georgia's unique county-unit system, a weighting scheme roughly modeled on the Electoral College as a means for selecting Democratic Party nominees in statewide (and some congressional) contests. (3) The system, struck down in Gray v. Sanders, awarded two, four, or six unit-votes to the candidate who received the most popular votes in a county with the number of unit-votes determined by the size of the county's population. (4) Chief Justice Earl Warren appropriated the term when applying the equal protection standard to all state legislative chambers in Reynolds v. Sims, (5) and Justice Hugo Black cited the benchmark as the standard for congressional districts in Wesberry v. Sanders. (6) The concept is now applied with rigor to local, state, and congressional district plans.

Two decades after the initial usage of one person, one vote, the Supreme Court had limited the acceptable variance from absolute equality in district populations to requiring that any deviation in the populations of a state's congressional districts be explicable. (7) Courts accepted greater deviations from the ideal district population when evaluating districting practices for state legislatures and local governments. For many years, it was thought that deviations of plus-or-minus five percentage points from the ideal would pass muster--termed a safe harbor within which the legislature might act. However when Georgia devised state legislative districting plans that tested the proposition by concentrating districts at the extremes of the plus or minus five percent deviations, a trial court rejected the plans when the state failed to provide an acceptable rationale. (8) Consequently, jurisdictions now need to explain deviations in the district populations they draw for all levels of government.

In this Article, we engage the one person, one vote issue in the context of the newest debate: citizen apportionment. This approach is the basis for a strategy for shaping our understanding of the equal protection of voting rights and affecting the apportionment of legislative power. We discuss the limitations of the original one person, one vote standard, both in terms of apportioning voting power to equalize individual votes when electing representatives, and in achieving "fair" political results. We also empirically model the variation in turnout ratios by states and show how these are associated with both citizenship factors and the application of voting rights law. We then turn to the issues of citizenship and legislative apportionment and discuss the practical and legal challenges to judicial and policy approaches to citizenship apportionment.

1. CITIZENSHIP: THE NEXT ONE PERSON DEBATE

   One person, one vote has become the standard for drafting districts, but the term itself is something of a misnomer. Substantial variations in the number of persons per district exist among the states due to the apportionment formula used and the unwillingness of the House of Representatives to expand its membership over the last century. (9) The Supreme Court has turned back challenges to the congressional apportionment formula, which results in deviations across the states in excess of sixty percent. (10)

   Numerous congressional plans equalize populations in state districts so that deviations are restricted to no more than one person; but the actual numbers of voters vary substantially. Multiple factors affect the rate at which population translates into votes. Districts vary in the degree to which their population consists of children, non-citizens, those who have been disenfranchised for felonies, and those who do not find the issues or candidates sufficiently interesting to merit participation. In no district does the number of voters equal the number of residents; consequently, the rate at which population translates into participation vanes widely. (11)

   The one person, one vote debate has moved in a new direction. For at least a decade, a little-noticed effort has sought to move the apportionment of political power away from total population toward a citizen population approach for both apportioning seats among states and equalizing voting power within states. These largely untested, somewhat novel efforts reflect an assumption that representative power and the concept of one person, one vote are vested in individual citizen rights, specifically in the right to vote. Under this approach, allocations of political power need to consider equality of the vote in the context of citizens, rather than overall population.

   The argument for citizen-based apportionment is based on four assumptions: (1) the voting right is a fundamental right invested in the individual; (2) the concept of one person, one vote protects the individual vote from diminution, rather than some other concept of non-voting representative access; (3) general-population apportionment results in vote diminution on par with pre-Wesberry congressional districts due to the presence of large, non-citizen populations; (12) and (4) the original one person cases did not anticipate the presence of a large, non-citizen population concentrated in select constituencies that would lead to vote diminution.

2. THE POLITICAL RECEPTION OF ONE PERSON, ONE VOTE

   Justice Douglas's coining the phrase one person, one vote may have involved a degree of public relations. As Ansolabehere and Snyder recount, the requirement that districts have equal populations outraged state legislators. (13) Linking a requirement that districts have equal populations to an equal voice in the government provided a more convincing justification for what initially proved to be a widely unpopular court decision. Subsequent to the Reynolds decision, a bipartisan coalition of U.S. senators introduced a constitutional amendment to allow for non-population based apportionment of at least one state legislative chamber. (14) The move failed by seven votes. (15) A proposal offered in the House would have removed state legislative apportionment authority from the jurisdiction of the federal courts. (16)

   The pursuit of apportionment equality followed nearly two decades of litigation after the first challenge to population differences among districts went to the Supreme Court in Colegrove v. Green. (17) Decades of legislative inaction allowed silent gerrymandering to increase differences in the populations in most states' congressional districts. For example, on the eve of Wesberry v. Sanders, Georgia's largest district had three times the population of the least populous. (18) In Texas, Speaker Sam Rayburn's district had only twenty-three percent of the population of the adjacent Fifth District. Michigan's Twelfth District in the Upper Peninsula had little more than one fifth the population of that state's most heavily populated district. (19)

   Post-Wesberry litigation ultimately produced a standard of strict population equality across congressional districts. (20) After the post-2000 census, seventeen states had the absolute minimum population deviations in their congressional districts while in another six states the population range between the largest and smallest districts was fewer than ten people. The one person, one vote issue seemed mooted.

3. ONE PERSON, ONE VOTE: EMPIRICAL FICTION?

   Even with the advent of the one person, one vote regime, the concept is far from literally true in application. The "Redistricting Revolution" produced equally populated districts, but the revolution did not achieve districts with equal numbers of voters. Indeed some of the most under-represented districts prior to the 1960s have now become, in terms of their numbers of voters, among the most over-represented (see Table 1, next page). There are numerous examples.

   In 1960, Georgia's Atlanta-based Fifth District was the second-most overpopulated district in the nation with more than 800,000 people. Its population was more than two-and-a-half times greater than Georgia's least populous district. (21) In the 2008 presidential election, Georgia's Fourth and Fifth District, which still encompass much of the 1960-vintage Fifth District, had less turnout in the presidential election than the state average and ranked tenth and eighth, respectively, among the state's thirteen districts. (22)

   In New York, the Twentieth District cast 325,706 votes (23) for the two major presidential candidates in 2008 while the Sixteenth District tallied only 167,108 votes. (24) This difference far exceeds the population differences registered just prior to Wesberry when the most populous district had 471,001 people compared with 350,186 in the least populous. In California the congressional district with the highest turnout in the 2008 presidential election tallied three times the number of votes cast in the district with the fewest votes. This is a far greater disparity than the population difference in 1962, when the most populous district had less than twice the population of the least populous. In Texas, the range in votes cast in 2008 rivaled the 1960 population range with the most politically active district tallying 3.4 times as many votes as the district with the lowest turnout. Today...