Most of the world uses a system of called the “civil code” system, informed by the principles of the Code civil des Français. The United States and the countries of the British Commonwealth use a “common law” system in which written law is only the tip of our legal iceberg. Most of our law was never enacted by any legislature but has been devised by judges and other lawyers. As you might expect in such a disorganized system, our law is filled with illogic and inconsistencies.
Nowhere are the illogic and inconsistencies more plain than in our laws governing voting, apportionment, and citizenship. In his remarks on Evenwel v. Abbott, the Texas case recently taken up by the Supreme Court and which he terms “the most important redistricting case in 50 years”, Sean Trende notes:
By ruling that states had to ensure an equal number of eligible voters in districts — rather than persons — the court would force even Democratic map makers to push districts out of heavily Democratic areas and into Republican areas. Just 78 percent of the residents of heavily Democratic Queens County are citizens, and 83 percent of similarly Democratic Kings County residents are citizens. In neighboring Nassau County, however, 91 percent of residents are citizens. In other words, 20 percent of the population in districts in Queens and Brooklyn would no longer count. To populate these districts, line drawers would be forced to push districts into Nassau County. Democrats would have a choice between weakening the Queens/Brooklyn districts, or making the remaining Nassau County districts more Republican.
To see how this plays out in practice, consider the lawsuit brought in 2012 challenging the apportionment of the New York State Senate. The current map places nine senate districts on Long Island, 26 districts in New York City, and 28 districts upstate. These districts are of similar populations.
But if we look at citizens of voting age (or CVAP), we see some pretty wide disparities. The average CVAP for the Long Island districts is 215,436 persons. The average CVAP for the New York districts is 191,133 persons. The average CVAP for the upstate districts is 217, 759 persons. There are other ways to look at the data, but the upshot is that a successful lawsuit would probably move two senate seats out of reliably Democratic New York City and into upstate New York. New York’s congressional districts are similarly apportioned between New York City, Long Island, and Upstate, so adopting CVAP would likely move a congressional district out of the city and into the swing areas upstate.
There are other examples here: Harry Enten and Dave Wasserman note that only 41 percent of the residents of California’s 34th District (downtown Los Angeles) are adult citizens; this district would probably have to be combined with most of a neighboring district (probably the 40th, where only about 40 percent of the population is adult citizens) to generate a full Hispanic-majority district. This would probably result in a new district placed in swingier areas of the state. Republican David Valadao’s Central Valley district is majority non-adult citizen; Democrats would love to weaken him but would have a hard time doing so while also protecting Jim Costa’s Fresno-based district. Weakening Loretta Sanchez’s district would be almost unavoidable. The five districts that abut the Rio Grande River in Texas have high non-citizen populations; one would likely be eliminated and, if Republicans have their way, transferred to the heavily Republicans suburbs of one of the major cities.
Although this case doesn’t address the point directly, it leads inevitably to the question of who should be considered for purposes of federal apportionment and who should not? Should corporations be considered for reasons of apportionment and why or why not?
These are all questions that would never arise under a civil code system and I’m sure our European cousins find us a source of puzzlement and endless amusement.
Article One of the Constitution apportions the number of representatives allocated to each state by population, which in turn allocates the obligation of direct taxes, contributes to the formula for the Electoral College, and places importance on the process of a decennial census.
At the outset, limited suffrage meant large disparities btw/ those voting and the population at large, often with stark regional or economic divisions. The first rebellion against the Constitution was against a federal excise tax on whiskey that disproportionately fell on farmers without land, and thus they argued without local representation in Congress.
Some of this background is provided because Trende mistakenly places importance on the 14th Amendment to popular apportionment. But my main point is that while apportioning btw/ states by population may not necessitate how districts within the states are defined, population as a determinate of political apportionment is long-established. From what I can tell, no state has ever created divisions based upon number of voters or eligible voters.
I stand corrected on that last point, Hawaii created districts based upon number of registered voters, which I understand is what the plaintiffs here want to require.
Here’s the relevant language:
Now consider how this relates to my post. We presently have multiple definitions of “persons” depending on context which is certainly inconsistent.
I also suspect that were the signers of the Constitution available for comment they would want to treat illegals either in the same category as “Indians not taxed” or as “all other Persons”. Imagine, for example, if Canada were to invade the United States in a decennial year. How should the Canadian soldiers on U. S. soil be treated for purposes of the census (and apportionment)?
What I expect Europeans don’t get is that we have a federal system, and that provision is concerned with an agreement btw/ states as to relative representational power. (Other states do not get to “count” slave property in full or sovereign Indian tribes that are a community apart)
It does not mandate how states distribute power internally, which meant states historically decide whether citizenship, religion, gender, race, property or age were requirements for voting. Early Pennsylvania certainly allowed aliens the right to vote so long as they met the property or tax-paying requirement. At the same time, citizenship may be required to vote in another state for the same election.
As I understand it right now, non-citizens are prevented from voting in federal elections by federal statute. Federal law can change and states can allow Canadian soldiers to vote in state and local elections as far as I know.
They could but the issue is less citizenship than it is whether they’re on the tax rolls. And that’s my point. Paying excise taxes isn’t enough. You’ve got to be on the tax rolls, too.
And you’re right about federalism. My experience has been that most Europeans don’t understand it at all. They just assume that the states are departments of the federal government. Frequently, they don’t even realize they’re making that assumption.
There are lots of other things I have found our European cousins don’t understand. For example, even Europeans who have visited here frequently don’t realize how big we are. I’ve sometimes said that American presidents were missing a bet by not taking foreign dignitaries on a driving tour of the United States. If they did, they’d realize just how different we were.
As I mentioned at OTB when this case came up, I don’t find the arguments to be transparent about what is at issue. I’m thinking this has more to do with attacking majority-minority districts.
The petitioners rely upon two types of data to argue that their voting rights have been diluted:
1) Voter registration
2) Citizen Voting Age Population, based upon Census’ American Community Survey
(These remove non-citizens, minorities and transients from the calculations, but voter registration also removes the ambivalent and the felon)
They argue that Texas could have crafted districts that were significantly equal in both population and voters, but failed to do so. So it is not necessarily true that districts would move from one area to another; it is more likely that districts would need to cross more from urban, to suburban to rural, so that the “blight” of non-voting areas is distributed equally among other districts. And if high voting areas are older and whiter, then it’s pretty much the reverse of forming majority minority districts.
This brings up a lot of stuff I’ve never thought of before. I had always assumed that non-citizens didn’t count toward these calculations. My initial impression is that they shouldn’t count, but I’m too ignorant of this issue to make an informed conclusion, so I’m definitely persuadable on this topic.
My constitution would handle this. Apportionment by number of citizens, citizenship is defined, and there’d be a lot more Congressional districts. (Haven’t settled on my definition of citizen yet.) The state’s would be left to settle their own problems.
This could be a “teachable moment” about the 3/5th’s Compromise. It had nothing to do with defining black people as human. It was about the number of Representatives a State would be apportioned. The South wanted to have more, and the North wanted them to have less.