Weightless votes.

• Author: Fishkin, Joseph
• Position: Equal representation for equal numbers of persons

FEATURE CONTENTS INTRODUCTION I. THE WEIGHT OF A VOTE II. EOUAL REPRESENTATION III. WHO ARE THE PEOPLE? CONCLUSION INTRODUCTION

Equality is a powerful idea, and nowhere more so than in the political sphere. It was the power of an idea of political equality that led the Supreme Court to conclude that it had no choice but to enter the "political thicket" (1) and regulate the way district lines of all kinds are drawn across the United States. The Court's sweeping intervention in this sphere has been enduringly popular, in part because of its straightforwardness. Anyone can understand a rule that says each district must contain an equal number of persons.

But equality is rarely so simple. Political equality in particular is a subtle, multilayered idea. In one of the most striking developments of the present redistricting cycle, the equipopulation rule is now under significant fire from litigants who come bearing arguments that are also couched in terms of a conception of political equality. These litigants argue that equality--and therefore, the Constitution--requires districts with equal numbers of eligible voters, not equal numbers of persons.

The difference is enormous. Certain districts, such as a predominantly Hispanic city council district in Irving, Texas, have the same total population as other districts but only half the citizen voting age population (CVAP). (2) A conservative impact litigation firm brought a lawsuit challenging that particular district in 2010, alleging that the difference in CVAP harmed the voters of the other five districts by diluting their votes. (3) The real prize here is much larger than the government of a mid-sized Texas city. Today, line-drawers across the nation rely almost uniformly on total population, an approach that current Supreme Court precedents neither require nor prohibit, (4) but that has become the de facto national policy. (5) A shift from total population to eligible voters or CVAP (6) would shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.

Adjudicating this conflict may force courts to confront a deep question they have long avoided. What is one person, one vote really about? What form(s) of political equality does it protect? (7)

Proponents of switching from total population to eligible voters or CVAP have a straightforward answer-and one with an outstanding pedigree. In Reynolds v. Sims, the 1964 case that interpreted the Equal Protection Clause to require the one person, one vote rule, the Court held that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." (8) In Wesberry v. Sanders, (9) which likewise imposed the one person, one vote rule on congressional redistricting on the basis of Article I, Section 2's requirement that the House be elected "by the People of the several States," (10) the Court similarly framed numerical malapportionment as debasing the "weight" (11) or sometimes the "worth" (12) of individual voters' votes. (13) The Court conceptualized the debasement of the weight of a vote as an individual injury, distinct from but analogous to disenfranchisement. This was a clever move. By focusing on individuals, the Court at a pivotal moment sidestepped the objection that it was intervening in an unprecedented way to restructure American democracy. Avoiding the Guaranty Clause, (14) the Court told an individual rights story. (15) Thus, when litigants today claim that one person, one vote protects the weight of individual votes, they are making an argument as old as one person, one vote itself, using language that courts know well and often cite.

The trouble is this: the closer one examines this argument about the weight of individual votes, the thinner and more insubstantial it turns out to be. As I will argue in this short Essay, no coherent account can be reconstructed of a nontrivial, non-tautological individual interest in the "weight" of a vote that one person, one vote protects. The "weight" of an individual vote, as protected by the one person, one vote rule, turns out to he a somewhat mysterious, ephemeral construct. Protecting the "weight" of my vote does not protect my chances of casting the deciding vote in an election. It does not preserve the proportion of the winning coalition, or the proportion of the total votes cast, that my vote constitutes. Fundamentally, it does not protect my chances of being on the winning side and electing my candidate of choice. In short, the "weight" of my vote does not do much work for me, in terms of the various aspects of my individual situation that I might care about as a voter. Nor does it solve these problems to redefine "weight" by reference to eligible voters or CVAP in place of equipopulation. If the "weight" of an individual vote were really all that one person, one vote protected, it is unclear why this jurisprudence would exist.

My claim is that instead, at its heart, one person, one vote is a rule about group power. It is a rule whose purpose and effect are not about the weight of any individual vote but instead concern a different set of questions: which groups of people will be able to elect representatives, and how many representatives will those different groups of people be able to elect? Will a small group of people in an area of rural Tennessee have the same power to elect candidates of their choice as a much larger group of people in Memphis? It is these group questions that led to the creation of the one person, one vote doctrine, and these remain the key questions on which one person, one vote intervenes. The "weight" argument is a makeweight. This conclusion does not resolve the contemporary challenge to the equipopulation rule, but it situates it on dramatically different ground, as I will discuss in the final Section of this Essay.

The argument of this Essay might seem at first blush to be just the opposite of the argument I made in a recent article, Equal Citizenship and the Individual Right to Vote. (16) In that article, I argued that election law scholars and courts have both been too quick to frame all election law questions in structural terms. Vote denial claims, I argued, are different; they are individual rights claims at their core, and should be adjudicated as such. My project here is complementary to--and indeed grew out of--that argument. In this Essay I argue that in one person, one vote cases, in contrast to vote denial cases, the real action is not in the domain of individual rights, but rather in structural questions about the allocation of group political power.

1. THE WEIGHT OF A VOTE

   I am just one voter. In what sense could the "weight" of my individual vote be diluted by numerical malapportionment--or protected by the one person, one vote rule? There are a number of possible answers to this question. Yet both courts and scholars tend to devote surprisingly little--if any--attention to specifying what they have in mind. Given the critical role that the "weight" of an individual vote plays in the dominant understanding of one person, one vote, it is worth being more precise. Let us consider six distinct answers.

   The most straightforward and venerable answer, although one the Court has not embraced, begins with the idea that the way my vote matters is that it might alter the election outcome. From that perspective, we can conceptualize "weight" as a probability: the weight of my vote is (1) the probability that I might cast the decisive vote. This probability is small. But all other things being equal, it gets smaller as the number of voters gets larger. A significant literature at the intersection of statistics and law analyzes the weight of an individual vote in these terms, calculating what is now known as the Banzhaf index, after the work of John Banzhaf, (17) by assuming that each voter is equally likely in a two-candidate election to vote for one candidate or the other. With that simplifying coin-flip assumption in place, each additional voter in my jurisdiction predictably and measurably decreases the probability that my vote will be decisive. The Court has rejected the Banzhaf index as a measure of vote dilution. (18) But perhaps this way of thinking nonetheless captures a sense in which, as we add more voters, we dilute the probabilistic weight of each vote--and, by the same token, a sense in which the one person, one vote rule protects a vote's weight. (19)

   This promising idea runs quickly aground when one begins to think realistically about when it is more or less probable that any individual vote will decide an election. (20) Far more relevant than adding or taking away some voters, the most determinative factor affecting the probabilistic weight of a vote is how often the elections in the particular jurisdiction are close. In a district that nearly always votes 80%-20% in favor of one party, the probability of a close election, let alone an election decided by one vote, is tiny. An individual vote has far more probabilistic weight in a district that is twice or ten times as populous, but also far more competitive, with patterns of results falling in a tight bell curve around the 50%-50% knife-edge. If we could rerun the 2000 presidential election any number of times, each voter would have far greater probabilistic weight in a close swing state like Florida than in safe states of any size--whether more populous California or less populous Alaska--for the simple reason that the outcomes in California and Alaska were not in doubt. (21) If we wished to increase the probabilistic weight of one vote, the best strategy would not be to make a district less populous, but to make it more competitive. (22)

   A related...