Supreme Court ‘One Person, One Vote’ Test Could Impact San Diego County

Maureen: I'm Maureen Cavanaugh, it's Wednesday, May 27th. Our top story on Midday Edition, the U.S. Supreme Court has agreed to hear a case that seeks to define what the term "one person, one vote" really means. The number of people in each state voting district is mandated to be relatively equal. But that now is now based on the total population. The case the high court has selected challenges that notion and argues that the voting district should be determined based on the number of eligible voters. The ramifications of a change like that could shake up political power in many state, including here in California. Joining me are Carl loan Apolitical science professor at San Diego Mesa College. Welcome. Nice to be here. Maureen: And attorney Dan Eaton, our legal analyst on Midday. Nice to see you. Maureen: Remind us how voting districts have been determined for years based on the mandates of the U.S. Supreme Court. What's so interesting is that in the -- at least before the early 60s, THE SUPREME COURT WOULD YOU KNOW CLEAR Camp Pendleton that they should get involved in these decisions. In 1964, the Court said look, when you are talking about distribution of voting districts, we're looking at the population of one person, one vote. Of course back then, they called it one man, one vote. But they never really defined what that meantime. Did that mean raw population or did it mean citizens of voting age population? That's really the question that's before the Court right now. What is one person, one vote mean for the purposes of the right under the equal protection clause of the United States constitution for there to be equality in districting? Maureen: Are you aware, let me ask you both, starting WDan, have there been rumblings before that basing the districts to total population has a potential fairness problem? There have been rumblings right here in California in a 1990 case called Garza versus county of Los Angeles, in which the 9th circuit majority said, look, you got to use total population in allowing Latinos to elect a supervisor of their choice and redistrict accordingly. Judge Kasinski said wait a minute, there is a tension between this principle of electoral equality on the one hand based on voting, voting eligibility, and equality of representation based on population. So this was teed up all the way back -- what is it? 25 years ago? Now the Supreme Court is finally getting around to decide had gone principle has primacy. Maureen: And Carl, have you heard that this is perhaps something that was of interest here in California? Or is this -- does this come out of left field? Well, as far as the current case going to the Supreme Court, that came out of left field to me. When I found out about it yesterday. There have been cases like this coming out of Texas and other places that could have gone to the Supreme Court, and the Supreme Court passed on it. That the escort taking this is indicative that it might be considering reversing Reynolds V. Sim, or the baker V. Carr decision to redefine what one man, one vote means. And that is a potential political earthquake. I strongly disagree with what the Supreme Court would be doing, overwhelming those cases. The Supreme Court has made it clear as recently as 1966 that it has never quite defined. The lower courts have. The federal courts of appeal have routinely, and Carl is right, routinely interpreted one person one vote to mean look at raw population. The Supreme Court has not directly squarely answered that question. It's left it open. Now is the time through the Supreme Court to step in and decide that question once and for all. Maureen: I just really want to clarify what it is that we're talking here -- and Dan things are is the central issue in the case going before the U.S. Supreme Court. What is the fundamental inequity that plaintiffs allege? Why do they claim an equal number of eligible voters is more equitable than an equal number of people? If you count the entire population including those ineligible to vote, it gives -- it dilutes the power of their vote because these people are not eligible to volt. If you take an extreme example, im two districts with 100 people each inform one you have one eligible voter, and 99 ineligible voter, and you have another with 100 eligible voters. Obviously in the first situation, where you have one eligible voter and 99 ineligible voter, that person has a disproportionate say. Their vote counters a lot more than the 100 eligible voters in the district. So they're saying let's count eligible voters! It's voting where the power resides. And that's how it ought to be count. That's a tough question. Maureen: Carl, aren't elected officials supposed to represent all the people in a voting district, not just the eligible voters? Well, Dan was right. The Supreme Court has never stated that. The purpose though of the decisions of the lower court in the 1960s WAS TO broaden the possibility of unrepresented people being represented because prior to the 60s, YOU HAD A RURAL AREA WITH A SMALL POPULATION, YOU COULD GIVE THEM TWO LEGISLATIVE SEATS. It was up to the whims of the legislature who would draw things to protect their voter base, and particularly the more conservative white majority. Bottom line, this case is being brought by conservative Republicans for the most part because they see an electoral advantage. So ideally any elected representative is a steward of the people, not just the voters. Nonvoters includes 18 year-olds or 17 year- 15-year-olds. People with diminished mental capacity. If you're going to start playing games like this again 50 years after cases like Baker, you might as well start reconsidering the poll tax and property decisions. And to your point, the 9th circuit in the Garza case addressed the point you raised. "It is established of course that an elected official represents all persons residing within the district, whether or not they are eligible to vote, and whether or not they voted for the official in the preceding election" which goes to your point that in their view, total population is what counts. Maureen: In recent year, most of the legal action involving voting districts has reformed around the racial comp -- revolved around the racial composition of those districts. The voting rights act was enacted in 1965. And it was designed to make real the promise of the fifteenth amendment which is prohibited states from impairing the right to vote on the basis of race. And what the voting rights act said is you cannot put in place laws, states cannot enact laws that impair the right to vote based on race or language minority. And it also outlawed very devices like literacy tests and so forth that are designed to accomplish that as well. So the action has been in what the voting rights act means exactly. And whether you can sort of crowd all of the minorities into one district to limit their representation. That's where the action has been. And now this is a very different question. This is a question of equal protection based not on membership in a particular class, but on whether citizens of voting age population count or whether total population counts. Maureen: I have a feelig know what Carl is going to say to this. But let me ask you first, Dan, do you think if the Supreme Court favored the plaintiffs' case in this particular case, that it would have implications for the voting rights act? Oh, I think it would! And it clearly was suggested by the majority in the 1990 case. It doesn't matter at all if these ineligible minorities are spread over an entire area. But that's not what happened. As Carl correctly said, they tend to be centered in urban areas as opposed to rural areas. Stow absolutely will to the extent that a particular racial minority tends to be ineligible, and they are counted in the population, it could have tremendous implication under the voting rights act, and into the constitutional protections from which the voting rights act arrived. Maureen: And Carl, what might be the practical political ramifications near California if voting districts were based on eligible voters and not whole population? Well, as I understand the challenge going to the Supreme Court, it would leave it to the states to decide how they're going to do it. And the states could decide it's going to be based on eligible voters. That's one route it could go. In which case California is not going to change. For which to hypothetical affect it here, take the City of San Diego and the county. There are going to be a higher percentage of eligible voters in the county, where it's more rural, conservative, older than in the cities where you have a lot of families that have a lot of kids. That is going to diminish the numbers of people. And you're going to shift power out from the urban areas to the counties. You'll have a big impact on education because people in those populations may not want to vote for inner city education. It'll affect pretty much every policy that currently may take advantage to the nonwhite majority out in the country side. Or the eligible vote mag juvenile court versus -- majority versus the cities. We'll go back to a situation reminiscent of the 1950s. Maureen: And there's a significant population of people who are living here illegally who are counted now when it comes to determining voting districts. And would not be under the eligible voter statute? Because they can't become voters. It's like the arguments I've heard before, people saying that tax payers should be the only ones who get to vote. A lot of illegal immigrants pay taxes. So that approach doesn't work. You're go ing to an approach that will take away a lot of people who will not vote for your side. You'll get what you want. But the legitimacy of government goes down, and it's a ticking timebomb if you go that route. Maureen: Let me use Dan's example of two voting districts, each with 100 people, one eligible voter in one of those districts, 99 eligible voters in the second. I can understand your point that it's sort of -- waters down the value of the votes in the second district. However, if this law also doesn't mandate these people have to vote, couldn't it just be one person voting in one district and one person voting in the other? I mean aren't we missing an element here? That's a wonderful question. It really isn't just about whether you're eligible to vote! Do you factor in whether people actually vote? Let's not forget minors. What about children? Are they counted? Before the 19th amendment was passed in 1920, women were routinely counted in districts and so forth even though they didn't have the right to vote. So the question is what line the Court ultimately draws if the Court ultimately sides with the plaintiffs in this case. And it's useful to note thigh bye the way that the district court in the western district of Texas that rejected the claim that it's the STLEERTS count was a very conservative 3-judge panel. They were all appointed by George W. Bush. So this will not necessarily fall alongide logical lines. Maureen: I know this has probably come up, Carl Nsome discussions you've had. I've heard people say all the states shouldn't get two Senators because you have states like Wyoming with such a small population voting for two senators. Very crucial legislators, senators are. And enormous states like California only get two senators too. So doesn't that also go to this central question that this particular case is asking? Well, that becomes the basic issue across American history. Justice is as justice does. Look in the constitution originally, you were portioned three 55ths 55ths a person for slaves. -- 3/5 a person for slaves. I don't remember slaves being able to vote. We've worked for 100 years to work beyond that so everyone gets benefited. It doesn't happen as readily. But people are all caught up in this idea of my race majority rules. The majority rules principle is a simplicity. But it's easier than getting consensus on every issue. Across the American system there are undemocratic principles. The Senate is an example of one. The plaintiff's allegation that they are not getting their full rights, if it serves the public good, we're very willing to put the public good ahead of individual rights on certain educations when it comes to political issues. Not your big rights, but on issues like apportionment, the Senate. You can't simply say everybody gets the same. Now I personally agree it's stupid to have Wyoming with two votes versus us. I don't live in Wyoming. Maureen, the federal courts including the Supreme Court have specifically rejected the federal analogy when you're talking about states and districts, which is what we are talking about here. The federal compact of court was a result of a compromise that resulted from southerners who actually wanted those slaves to count as whole people and so forth. We won't get into that. But the federal analogy really doesn't work here. The question is what one person one vote means. And that's what the Supreme Court is going to have to decide. Maureen: This case has been brought by a conservative political organization. And I'm wondering, I got a feeling about what you think about this, Dan. But why do you think the U.S. Supreme Court chose to hear this case? Is this truly a pressing legal issue? Or was it as some suspect pick forward political reasons? Well, I certainly would never ascribe political mote evers to the justices. I don't think they act that way. This is an open question. But interestingly, it's an open question without a split of authority in the lower court. Normally that's what it takes to get the Supreme Court to review a case. The federal courts of appeal have been unanimous in saying that it's about population. But judge casin ski and his -- Kasinski said, Supreme Court, you ought to look at this. This is an open, unresolved question, and people need to know. 25 years later, the Supreme Court finally getting around to answering what is clearly an open question, at least as far as the Supreme Court is concerned. Maureen: And Dan's very reason there has some people questioning, Carl, whether or not this case was picked perhaps for political reasons. I tend to agree with Dan. The Court looks at the bilge picture, and they look at -- big picture. But if you look at things like citizens united, decisions on the voting rights act, there is a pattern that the Court fundamentally believes at least four members of the Court that in the Court in the '60s, YOU WENT TOO FAR PROTECTING CERTAIN RIGHTS at expense of certain majorities. And there's been a constant effort to move some of that back. And I think is this part and parcel the tapestry this would result in a decreasing majority holding onto power longer than it otherwise might. Very debatable. That's all I'll say about that. [ LAUGHTER ] Maureen: That's exactly what we're doing here! [ LAUGHTER ] Maureen: But I just want to go one step further. So what you're saying, Carl, is that what you're seeing here is the Court's acceptance of hearing this case is part of a trend? I don't know the reasoning, and I don't know the four justices who issued on it, but kisuspect which four they were. And I doubt Ruth baiter begins berg was one of those. On the individual issue, I'm convinced Scalia is looking at the case. On the broad tapestry, has a big view viewpoint of what court is supposed to be. So you'll see cases that result in the trim line. And I think it's hard to argue that the Court has been more supportive of right when is it comes to voting and participation of nonpowerful groups in the process than it has been of groups doing whatever they can which will benefit the powerful. Maureen: I want to thank you both very much. Thank you so much, Maureen. Thank you.