Like a bolt out of the blue the US Supreme Court has suddenly thrust front and center the most important question in a democracy: who should exercise political power. Should it be all the people, or should it just be those citizens qualified to vote? The Supreme Court has agreed to hear a case out of Texas that challenges the 50-year methodology of using all the people in drawing legislative districts. The ruling could drop on California politics like a brick on a tea cup.
Beginning in 1962, the Supreme Court under Chief Justice Earl Warren handed down a series of rulings that said legislative and congressional districts must be drawn on the basis of equal populations – one person, one vote. This did away with the old rural-based State Senates, including California’s where three small counties had one senator and Los Angeles had one senator. “Legislators represent people, not trees or acres,” said Warren in explaining why malapportioned districts were unconstitutional.
But the Supreme Court never said who the people were. The Texas plaintiffs say representation should be limited to just the “citizen voting age population” (CVAP). They have sued their state claiming that some districts have more voters than other districts, because in some districts almost everyone is a citizen while in others many residents are non-citizens, and thus non-voters. This violates “one person-one vote,” plaintiffs say
So the issue will be: should districts be drawn on the basis of the voters and potential voters in a state; the over-18 citizen population; or can they be drawn as they are now on the basis of the whole population with citizens and non-citizens counted equally.
While this sounds technical and boring, it has huge political impact. If California went from all residents in drawing its districts to just CVAP, central Los Angeles with its large non-citizen population and younger population would lose a significant number of districts; they would be shifted to the suburbs and rural California, areas with fewer children and non-citizens.
The Los Angeles State Senate district of Democratic President Pro Tem Kevin De Leon is 67 percent Latino by population, but only 52 percent Latino in CVAP. So if it were redrawn based on CVAP, the district would need to increase in size thus pressuring neighboring Latino districts and ultimately leading to fewer Latino districts in Los Angeles as districts shifted to higher citizen population areas.
Theoretically at least, Republicans could be winners in this new scheme as their areas tend to be suburban and rural with more citizens. Latinos and the inner cities would lose out, which is why Latino and liberal groups are already panicking over what the Court might do. “It would devastate Latinos and Asians and the districts currently held by Latinos, Asians and African Americans in California,” said one redistricting expert. “The question is whether the cities should enjoy the same per capita representation as their suburban and rural, whiter, older counterparts,” wrote one unhappy academic.
Unfortunately for those on the academic left, the answer might be yes. The Warren Court rulings said we must equalize the rights of voters to elect their representatives. But if you have some districts full of non-voters, are you not discriminating against those neighboring districts with lots of voters?
The Warren Court did not face this issue half a century ago because the census did not provide a way to count only citizens. But now the US Census provide counts of those over and under the age of 18, and the census itself has developed a methodology to determine CVAP in census units. Meridian Pacific has published an analysis of all the districts drawn by the Citizens Redistricting Commission in 2011 and also provides CVAP for every California district.
The Supreme Court itself seems somewhat enamored by CVAP. In a 2009 case called Bartlett v Strickland the Court ruled five to four that in drawing minority districts a minority group must constitute a numerical majority of the voting-age population in an area. This required the Citizens Commission to consider CVAP in drawing most of the Los Angeles districts because of the size of the minority populations, so CVAP has already been used in one instance in California.
My guess is that four of the five justices who made up the majority in that ruling voted to hear the Texas case, and that there are five justices ready to define the Warren-era “one person-one vote” standard to mean those who actually can vote: citizens over the age of 18.
If they do, California might have to completely redistrict before the 2018 election, and that would vastly increase the number of rural and suburban districts in this state.