If you are very quiet, you will hear knives coming out.
The 2010 census is over and done with. The 2020 census is just around the corner. Reapportionment wars and lawsuits are already in full swing.
Expensive -- hideously expensive -- lawsuits. As of January 2017, there were 13 of them. For a quick overview of what is going on, click here.
Throughout America, lawyers in pinstriped suits are making frenetic phone calls, holding Monday morning strategy sessions, rounding up plaintiffs, corralling expert witnesses. How do I know? Been there; done that. I am an accredited expert witness in Federal Court on reapportionment.
Is there a way your tax money can be saved for something other than reapportionment spats? How about public education? Infrastructure? Health care? Debt service? Environmental protection? Law enforcement?
There are two ways to reduce reapportionment lawsuits:
(i) To start the process rolling, abolish the House of Representatives. No House; no national reapportionment. Nebraska´s unicameral legislature is a case study.
Tragically, the oligarchs running America will never permit a federal unicameral legislature; the continued existence of a house and senate is vital for preserving The Great American Illusion that America has a democracy.
(ii) Find the silver bullet for authentic One Person, One Vote reapportionment.
So far, the bullet has not been found because, as we shall show, to do so requires refuting the time-honored saw that you cannot mix apples and oranges.
Since (i) is not a real option, we will proceed with (ii).
* * *
The crux of reapportionment lawsuits is the famous One Person, One Vote principle. Politicians, lawyers and judges simultaneously curse and revere it. I know of only two lawyers and one federal judge who understand it.
The principle means equality among individuals in their right to vote -- “that every voter is equal to every other voter in his State when he casts his ballot…” (Supreme Court, Gray v. Sanders, 1963). Equal rights are unconstitutionally impaired when the weight of a vote “is in a substantial fashion diluted when compared with votes of citizens living in other parts of the state.” (Reynolds v. Sims, 1964).
One Person, One Vote has as a basic reference point the relationship between or among districts -- not inside one-and-the-same district in a state. That distinction instantly clears up a lot of confusion. Election trickery aside, if you and I vote in the same district, for example in a state house representative race, our votes always have the same weight. 1 = 1; they count equally. The One Person, One Vote principle does not come into question because it is fully realized. Such is the case in presidential and federal senate elections because, in both cases, the district in question is the entire state.
But what happens when the weight of your vote is compared to the weight of a vote cast in other districts within your state, county or city? Thousands of elections for house representatives, county commissioners, city councilors and school board members come into play.
Tempers flare in a Pavlovian reflex when reapportionment appears. To avoid as many unnecessary bad feelings as possible, I am going to take a concrete case from long ago to show why One Person, One Vote does not exist – intentionally, at any rate -- anywhere in America.
In 1982, a panel of three federal judges tossed out the state house reapportionment plan passed by the New Mexico State Legislature. The 70 house district population totals varied too greatly, the judges ruled, creating a “constitutionally impermissible” result violating the One Person, One Vote principle.
The judges’ remedy was simple, direct. “The Legislature,” they commanded, had “to construct the legislative districts as nearly of equal population as is practicable.”
What literally counted for the judges, then, was one thing only: warm bodies. For reapportionment purposes that meant:
(1) Divide New Mexico’s population (1,302,894) by the number of house districts (70), and you have the population of the ideal house district: 18,613.
(2) When you reapportion, keep all house district populations as close as practical to that number, and the One Person, One Vote principle will be, according to the judges, realized.
The New Mexico legislature reapportioned -- guess who paid the tab -- rigorously following the judges’ order.
Was the One Person, One Vote principle realized? Were the weights of votes roughly equal? The truth was just around the corner -- the first house elections.
Here’s what happened:
In 1984, 8,723 people voted in the state representative’s race in House District 30 in Bernalillo country (John McMullan, GOP, incumbent). Only 3,776 people voted in the state representative’s race in House District 33 in Dona Ana County (Ralph Hartman, Democrat, incumbent).
The fact of the matter: a vote cast in Hartman’s district had more than twice the weight of a vote cast in McMullan’s district. If that isn’t substantial, unacceptable dilution, what is?
Gross differences in vote weight appeared throughout the state. What went so terribly wrong?
Answer: the judges’ warm body reapportionment solution -- make house districts equal in population -- was one person, one person reapportionment, not One Person, One Vote reapportionment.
That one person, one person reapportionment, by the way, ran directly counter to existing Supreme Court rulings.
In Gaffney v. Cummings (1973), the Court held that
“total population, even if absolutely accurate as to each district when counted, is nevertheless not a talismanic measure of the weight of a person’s vote…The United States census is more of an event than a process. It measures population at only a single instant in time. District populations are constantly changing, often at different rates in either direction, up or down. Substantial differentials in population growth rates are striking and well-known phenomena. So, too, if it is the weight of a person’s vote that matters, total population – even if stable and accurately taken – may not actually reflect that body of voters whose votes must be counted and weighed for the purposes of reapportionment, because ‘census persons’ are not voters [sic]. The proportion of the census population too young to vote or disqualified by alienage or nonresidence varies substantially among the States and among localities within the States.”
Inequality of vote weight is especially blatant when the district populations are indisputably equal following a federal court order. In New Mexico, in terms of the raw population, fewer than 4,000 people in House District 33 (Hartman) had the same weight as more than 8,000 in House District 30 (McMullan).
Why were so few votes cast in Hartman’s district?
The Supreme Court gave the cause: ‘census persons’ are not voters. Hartman’s district was on the Mexican and Texas borders. Many of its residents were ineligible to vote in New Mexico. But in the three judges’ order that reapportionment be made solely on raw body counts, the eligible-ineligible distinction was lost.
Completely lost.
In another decision, the Supreme Court was even more explicit about not requiring reapportionment solely on the basis of warm bodies. In Burns v. Richardson (1966), the Court declared it never
“suggested that the states are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with Equal Protection Clause is to be measured.”
The New Mexico state legislature did not go quietly into that dark night. It appealed to the Supreme Court. Given its two rulings cited above, you would think the Court would jump at the opportunity to assert itself and rebuke the slap-in-the-face delivered by three judges in Albuquerque.
The Court did no such thing. It refused to hear the case, thereby letting the slap stand.
Why?
Remember Dred Scott. Where there is no pride, there is no shame -- some readers will conclude. I think the answer lies elsewhere.
The end result produced by NOT hearing the contradictory ruling is ambiguity. The Supreme Court loves it, creates it by the truckload. The reason:
In an ambiguous situation, he who is the POSITION to know has the power. The Supreme Court is in that position. And power -- not justice -- is what the Supreme Court is all about. It has learned, a la computer tycoon, that money, full employment for lawyers, more funding for the judicial branch and other self-serving measures are enhanced by creating problems, not solving them.
The results are indisputable. Reapportioning on the basis of raw bodies doesn’t create One Person, One Vote parity. But what will?
There is a second, readily-apparent method for reapportioning. It is in the second half of the One Person, One Vote principle.
Conceivably, a reapportionment plan could ignore entirely the census population. The plan would start with the total voter turnout in the last statewide election. Staying with New Mexico, 408,621 votes were cast in 1986.
(1) To determine the ideal house district size, divide that total turnout by the number of house districts. 408,621 divided by 70 = 5,837.
(2) To reapportion, take each precinct’s votes cast. Put precincts together so as to form each house district as close as practicable to 5,837 votes.
The three judges ordered: make the populations equal and ignore votes. The reapportionment method just outlined would make the votes equal and ignore populations. Instead of one person, one person reapportionment, the second method would be one vote, one vote reapportionment.
Beyond a doubt, using only votes cast would reduce the extreme variation in turnouts across districts. The McMullan/Hartman vote disparity would vanish.
However, the price paid would be too high. One vote, one vote reapportionment would create excessive and unacceptable deviations in house district populations. Why?
For the same reason one person, one person reapportionment creates inequality: different areas have different numbers of ineligible voters. We repeat what the Supreme Court said: ‘census persons’ are not voters. Children, out of state students, seasonal workers, foreign citizens -- all are census persons; none are voters. Persons and voters are two different groups. Apples and oranges.
To date, reapportionment lawsuits have focused on population inequalities. To my knowledge, no lawsuit yet has been filed over vote weight inequalities. The latter, however, is an idea whose time is coming...
Someday a lawyer will saunter into a courthouse, open his briefcase. The contents: the other shoe. It will drop with an almighty thud, creating tremors from the California redwoods to the New York Island. Every state in the nation is guilty of gross vote weight inequalities, and for the same reason as New Mexico. Those inequalities were created not by local ill will, not by politico debauchery and treachery, but by federal court orders. A classic case, if there ever was one, of making (and taking) money by creating problems, not solving them.
We have arrived at the end of a dead-end road.
The Formula
There is a paradox in the One Person, One Vote principle:
Reapportioning solely on the basis of warm bodies counted in the census makes district vote totals vary to an unacceptable degree.
When districts A and B both have 18,000 people, and 8,000 votes are cast in A versus only 2,000 votes in B, something is wrong. Picture a scale, perfectly balanced, with 8,000 grains of sand in pan A and only 2,000 in pan B: how can the weight of each grain be the same? Such is the result of one person, one person reapportionment.
But reapportioning solely on the bases of votes cast would make district populations vary to an unacceptable degree. If districts A and B are redrawn so that each casts 5,000 votes, but 30,000 people live in A and only 6,000 in B, again, something is wrong. So outrageous is this discrepancy, one vote, one vote reapportionment to my knowledge has never been implemented anywhere.
The cause of the paradox is simple but fundamental. Raw census population and voters are two different groups. Apples and oranges.
BOTH people and votes must be counted to reapportion in a manner that truly, fully, finally operationalizes the One Person, One Vote principle. That operationalization is the only way in which, in accordance with the 14th Amendment -- with democracy too -- the weight of each person’s vote will be equal.
The solution to the One Person, One Vote paradox requires that a 2,000-year-old dictum be refuted. We can -- in fact, must -- mix apples (people) and oranges (votes).
You want a practical solution. Here is it.
The following formula equalizes vote weights:
Congressional District
Population According The Average of The Total
to The Last Census Votes Cast in A Precinct Derived
_________________ X in The Previous Two = Precinct
Congressional General Population
The Average of The Election Years
Total Vote Cast in The
Congressional District
in The Previous Two
Congressional Election Years
The “Derived Precinct Populations” are the new building blocks for constructing districts. Their physical boundaries, registered voters, voting machine locations, etc., are exactly the same as those of existing precincts.
When added up, there is nothing abstract whatsoever about derived precinct populations. More on that in a moment.
The formula, it must be emphasized, does not omit actual, real life people. They are at the top of the first column: “Congressional District Population According to The Last Census.” People ineligible to vote -- children, non- resident students and soldiers, transient workers -- are absolutely, definitely included.
The mechanics of the formula will not be intuitively obvious to many readers. Hence, we provide a clarifying, hypothetical case:
(1) Assume a congressional district has a population of 800,000 people. Assume, furthermore, that the average turnout in the last two congressional general election years was 400,000 votes.
The contents of the first column in the formula:
Congressional District Population
According to The Last Census = 800,000
Divided by
The Average of The Total Votes Cast
In The Congressional District
In The Previous Two Congressional
General Election Years = 400,000
Corruption aside, for obvious reasons the result of the first column will always be greater than 1. In our example, that figure is: total census population (800,000) divided by total votes cast (400,000) = 2.
2) We come to the second column of the formula: “The Average of The Total Votes Cast in A Precinct in The Previous Two Congressional General Election Years.”
For simplicity´s sake, we will assume that the congressional district consists of five precincts. We will also assume our task is to build two state house districts from those five precincts. Finally, we assume the averages of the total votes cast in the last two elections were as follows:
Precinct 1. 50,000 votes.
Precinct 2. 100,000 votes.
Precinct 3. 80,000 votes.
Precinct 4. 20,000 votes.
Precinct 5. 150,000 votes.
Before proceeding, note that the total is 400,000 votes. That figure appears in the bottom part of the first column of the formula.
(3) The second calculation in the formula: multiply each precinct vote by 2, the result of the division performed in Column 1. The result is the “Derived Precinct Population.” Thus,
Precinct 1. 2 x 50,000 = 100,000 Derived Precinct Population.
Precinct 2. 2 x 100,000 = 200,000 Derived Precinct Population.
Precinct 3. 2 x 80,000 = 160,000 Derived Precinct Population.
Precinct 4. 2 x 20,000 = 40,000 Derived Precinct Population.
Precinct 5. 2 x 150,000 = 300,000 Derived Precinct Population.
Now comes something many readers will not anticipate:
The total of the “Derived Precinct Populations” is 800,000 -- the number shown at the top of column 1 of the formula. In other words, the total of the derived precinct populations is the same as the “real” population -- warm bodies -- counted by the census.
What happened is this: precincts with large numbers of people ineligible to vote did not receive undue representation relative to other precincts. What the formula accomplishes is not the elimination of ineligibles but the spreading of ineligibles throughout the precincts in a congressional district.
(4) As mentioned, our task is to build two state house districts. If we put precincts 1 and 5 together, we have a district composed of (i) 400,000 derived precinct population and (ii) 200,000 votes. That decision leaves us no choice for building the second district: precincts 2, 3 and 4. Together, they form a district of (i) 400,000 derived precinct population and (ii) 200,000 votes.
End result: two identical house districts in (i) populations and (ii) votes. What could be more equitable? People and votes? Apples and oranges?
The essence of the formula: the votes-cast component checks the population component WITHIN congressional districts. The population component checks the votes-cast component AMONG/BETWEEN congressional districts.
Apples and oranges are mixed so as to control each other. Those checks and the resulting balance are the One Person, One Vote principle in action.
#reapportion #reapportionment #abetterwaytoreapportion #onemanonevote