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Assemblyman Donald P. Wagner

Fairness in Elections

A case now before the United States Supreme Court, Evenwel v. Abbott, is causing considerable upset among Sacramento Democrats. That is because a victory for the plaintiffs will have a significant positive long term effect on California politics, by potentially ending one party rule.

What is Evenwel about? Nothing short of fundamental fairness in elections. It asks whether states should draw their legislative districts primarily to protect the rights of citizens to an equal vote or to protect the “interests” of the undocumented and felons to “access” to state politicians.

In Evenwel, Texas voters challenged the drawing of Texas legislative districts apportioned according to total population rather than according to the number of citizens of voting age, i.e., each district has roughly the same number of people in it, though the districts can have wildly unequal numbers of voters in them. The plaintiffs contend that this inequality means that the votes of some voters are worth less than the votes of other voters, thus violating the principle of “one-person, one-vote.” For example, if there are 100 citizens eligible to vote in District 1 and 50 citizens eligible to vote in District 2 – even if both districts contain an equal number of people – then the votes of the District 1 voters are worth only half the votes of District 2 voters because it takes twice as many voters to elect a representative in District 1 as in District 2. Thus, the plaintiffs argue, voters in District 1 do not have equal protection of the laws as required by the Fourteenth Amendment because their votes are not equal to the votes of others.

California draws our districts the same was as Texas does, and if the Evenwel plaintiffs win, Texas and California legislative districts likely will have to be re-drawn. Those new districts, by all accounts, will produce more Republican and fewer Democratic legislators. That explains why the Democrats are upset about Evenwel.

In fact, so upset are they that the Democrats in the state Senate drafted a resolution, SJR 13, condemning the Supreme Court for even considering the case. Turning the concept of one-person, one-vote on its head, SJR 13 argues against the primacy of citizen voting rights over the undocumented and felons.

Surprisingly, the Supreme Court has never actually resolved the question as to what standard the States must apply in drawing their districts in order to satisfy the one-person, one-vote principle. Total population, total voting age population, total citizens of voting age, total registered voters, all of these and perhaps more are possible measures. Which satisfies one-person, one-vote?
The answer should not prove difficult for the Court. It has long held that the principle behind one-person, one-vote protects the voting franchise of American citizens. In Reynolds v. Sims, the seminal case in this area of law, the Court said “it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or 10, while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable.” The Court continued, “[t]o the extent that a citizen’s right to vote is debased, he is that much less a citizen. . . . [T]he basic principle of representative government remains, and must remain unchanged – the weight of a citizen’s vote cannot be made to depend on where he lives.”

Other Supreme Court cases adopted the same reasoning. For example, in Wesberry v. Sanders, the Court said “[i]t would be extraordinary to suggest that . . . the votes of inhabitants in some parts of a State . . . could be weighted at two or three times the votes of people living in [other] parts of the State. . . . Other rights, even the most basic, are illusory if the right to vote is undermined.”
But despite the clear indications from the Supreme Court as to the importance of the voting franchise, questions remain. Some court language admittedly does suggest that total population alone is a reasonable measure for district apportionment. In other cases, a new theory has been concocted, namely that balancing districts by citizen voters alone would violate the First Amendment’s Petition Clause by denying to non-voters their fair “access” to elected officials.

Which brings us to SJR 13. It completely omits from its language any recognition of the Supreme Court’s interest to protect citizen voters. Instead, it adopts the access argument that one-person, one-vote protects not voters but access to elected officials by non-voters, i.e., felons, the undocumented, and children.

SJR 13 also makes the patently false claim that the Evenwel “plaintiffs . . . are attempting to disenfranchise California’s immigrants and children.” This is literally nonsense. By definition, the people “excluded” under the plaintiffs’ one-person, one-vote argument are those people who do not have the franchise and are not entitled to the franchise in the first place. You cannot be “disenfranchised” if you do not have the franchise.

Finally, the politics of this Resolution should be clear. It has 59 co-authors, all Democrats, because the Evenwel case offers the very real prospect of significantly reducing Democratic dominance in California. The Democrats get that! Indeed, that is precisely why so many of them so quickly jumped out in support of SJR 13. Hopefully, Assembly Republicans will also get it, oppose SJR 13, and support the voting rights of our citizens. Hopefully, so too will the Supreme Court by siding with the Evenwel plaintiffs and guaranteeing equal representation to all voters.

Assembly Member Wagner represents the Central Orange County communities of Anaheim Hills, Irvine, Lake Forest, Orange, Tustin, Villa Park and surrounding areas.