The Petition Clause and the Constitutional Mandate of Total-Population Apportionment.

• Author: Bradley, J. Colin

Table of Contents Introduction I. The Historical Foundations of Apportionment and One Person One Vote A. The Assumed Link Between Apportionment and Representation 1. The Founding 2. The second Founding 3. Early twentieth-century debates B. The Evolution of "One Person One Vote" 1. The equipopulation principle 2. An early test: Burns v. Richardson 3. The modern challenge: Garza and Evenwel II. Closing the Gap: Geography-Based Virtual Representation A. Structural Safeguards of Representation B. Geography-Based Virtual Representation 1. The defense of virtual representation 2. Virtual representation and apportionment a. Democratic representation b. A priori and ex ante perspectives on institutions c. The wrong in shifting apportionment base III. The Petition Clause and Total-Population Apportionment A. The Historical Practice of Petitioning B. Petitioning and the Equal Right to Access Representatives C. Petitioning and Equality: Why Buckley Doesn't Matter Conclusion Introduction

Post-census electoral redistricting defines the contours of America's representative democracy. Consequently, it is always accompanied by fierce political and legal fights. Post-2020 census redistricting has been no different, with state legislatures producing maps as advantageous as possible--or at least as advantageous as they can stomach (1)--for the majority party. (2) And right on cue, litigation to challenge such maps as illegal or unconstitutional gerrymanders has followed. (3) While this pattern has accompanied every round of redistricting since the Voting Rights Act of 1965 and the Warren Court's apportionment revolution (beginning with 1962's Baker v. Can (4) and 1964's Reynolds v. Sims (5)), election lawyers have predicted for some time that a new era of redistricting battles is imminent. Redistricting fights will increasingly involve disputes over the appropriate apportionment base: whether districts should include the same number of people (total-population apportionment) or the same number of voters (eligible-voter apportionment). (6)

This Article argues that the Petition Clause of the First Amendment requires states to use a total-population apportionment base in drawing state legislative districts. (7) The democratic practice of petitioning provides the essential link between the Constitution's commitment to universal representation and the total-population apportionment requirement. (8)

The right to petition is a right to make claims before legislators, who in turn have an obligation to receive and consider those claims. (9) This right, now largely forgotten, was a staple of early Americans' understanding of democratic practice. (10) Access to elected officials between elections has long been a core feature of America's representative democracy, and the Petition Clause requires that such access be equally distributed. (11) By guaranteeing all residents an equal opportunity to access their legislators, to make a claim, and to be heard, the Petition Clause embodies an important principle of political equality. The right to petition is a core part of the dignity afforded to all residents of the nation, as well as a key tool in the struggle for recognition and representation. (12) Appreciating this aspect of American democracy requires understanding the methods for securing effective representation the Founders embedded in the Constitution.

This Article breaks new ground in two important ways. First, it provides a novel account of how constitutional actors have understood the role that apportionment plays in our scheme of representative democracy. Second, it presents the first sustained argument for the central role of the Petition Clause of the First Amendment, as opposed to the Equal Protection Clause of the Fourteenth Amendment, in addressing questions of apportionment and representation.

Despite the key role that the connection between apportionment and representation has played in constitutional debates since the Founding, the issue has received surprisingly little scholarly attention. Some scholars and advocates have sought to demonstrate that the Constitution--specifically, the Apportionment Clause of Article I, Section 2 and the Equal Protection Clause of the Fourteenth Amendment--contains a commitment to universal representation: that is, the principle that all more-or-less permanent residents ought to be represented in the legislature, no matter their alienage or immigration status, and no matter their eligibility to vote. (13) This approach assumes that a commitment to universal representation requires the entire more-or-less permanent population to be included in the apportionment base. (14)

There is no doubt that the Constitution is committed to the principle of universal representation. This has been affirmed again and again throughout our Nation's history--at the Founding, in the debates over and ratification of the Reconstruction Amendments, and amidst the early twentieth-century immigration boom and nativist backlash. (15) Indeed, on President Biden's first day in the Oval Office, he issued an Executive Order reaffirming this point in the context of the national legislature: "We have long guaranteed all of the Nation's inhabitants representation in the House of Representatives. This tradition is foundational to our representative democracy ... [and] respects the dignity and humanity of every person." (16)

But the connection between this principle of representation and the practice of apportionment is anything but obvious. No one could seriously argue that the mere fact of being counted in the apportionment base is sufficient to be represented. (17) But the opposition to eligible-voter apportionment is often voiced in the language of representation. For example, journalist and voting-rights advocate Ari Berman has claimed that, if the state of Texas opted for eligible-voter apportionment, it "would leave almost 2.7 million noncitizens and 7 million children without political representation." (18) This suggests that being counted in the apportionment base is at least necessary for representation. Yet if being counted as part of the apportionment base is merely necessary to be represented, this argument leaves unstated why that is so and what more is needed. (19)

The puzzle is intensified by the fact that these debates concern the representation of people who are deprived of the right to vote. America has always been a nation with a restricted franchise. (20) The right to vote--and the motivation and opportunity to exercise that right--has ebbed and flowed across time and across geography. (21) Today, the right to vote is nominally recognized as a fundamental right for all citizens over eighteen years old. (22) But several asterisks must be appended to that statement. First, it excludes the currently--and, in some states, the formerly--incarcerated. (23) Second, it ignores the many de facto and de jure limitations that already burden the right to vote, which Republican politicians across the country are currently fighting to strengthen. (24) While voting reform is at the top of the legislative agendas of both major political parties, (25) very few argue that the franchise should be formally extended much beyond where it is today. (26) In particular, few advocate extending the franchise to most noncitizens or to those under eighteen years of age. (27) It has always been part of our constitutional system of representative democracy that some people are, to use President Biden's words, "guaranteed ... representation," despite lacking the opportunity to exercise the franchise. (28) In other words, there has always been what this Article terms a "vote-representation gap."

The only plausible explanation for how inclusion in the apportionment base could be adequate to overcome the vote-representation gap is what this Article calls "geography-based virtual representation." (29) But this geography-based virtual representation approach falls far short, as this Article will demonstrate, as either a theory of representation or a theory of apportionment. Yet without it there is no apparent connection between universal representation and total-population apportionment at all.

This is far from a merely theoretical dispute. The battle over apportionment bases is an important new front in the "voting wars." (30) President Biden's Executive Order 13,986 explicitly required the Census Bureau to include in the reported population of each state, "all persons whose usual place of residence was in that State... regardless of their immigration status." (31) This explicit affirmation of what had routinely been standard practice was required to reverse former President Trump's order to omit noncitizens present without legal authorization from the reported census figures. (32)

At stake in these battling executive orders is the post-census apportionment and redistricting of the U.S. House of Representatives. Leaving undocumented immigrants out of the census figures deliberately omits residents from the total populations of some areas, likely reducing the share of seats in the House that states with high populations of undocumented immigrants would otherwise garner. (33) Republicans believed this would be to their partisan advantage. (34) When Trump's order was challenged in court by a coalition of states and immigrant advocacy organizations, the Supreme Court somewhat surprisingly batted it away on jurisdictional grounds. (35) The Trump Administration's alternative efforts to acquire reliable data on the distribution of noncitizens foundered and were incomplete by the time Biden assumed office. (36) Biden's January 20 executive order appeared to settle this dispute for the 2020 census. (37)

Manipulation of the apportionment base--the figures that are used to draw electoral districts in conformity with the Court's "one person one vote" mandate (38)--will nevertheless be an important part of the ongoing voting wars over...