SENATE RULES COMMITTEE
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SJR 13
THIRD READING
Bill No:
Author:
Introduced:
Vote:
SJR 13
De León (D), et al.
6/8/15
21
SENATE JUDICIARY COMMITTEE: 7-0, 6/16/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski
SUBJECT: Voting: apportionment
SOURCE: Author
DIGEST: This resolution urges the United States Supreme Court to uphold the
federal constitutional principle of “one person, one vote” and to not deny
California’s children and immigrants equal protection under the law.
ANALYSIS:
Existing law:
1)
Provides, under the Fourteenth Amendment to the U.S.
Constitution, that no state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
2)
Holds that the equal protection clause requires that every voter is
equal to every other voter in the state when he casts his ballot in a statewide
election. (Gray v. Sanders (1963) 372 U.S. 368, 379-380, 381.)
3)
Holds that the constitution requires that as nearly as practicable one
man’s vote in a congressional election must be worth as much as another’s and
further provides that “while it may not be possible to draw congressional
districts with mathematical precision, that is no excuse for ignoring our
Constitution’s plain objective of making equal representation for equal numbers
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of people the fundamental goal for the House of Representatives.” (Wesberry v.
Sanders (1964) 377 U.S. 1, 7-8, 18.)
4)
Provides that “the fundamental principle of representative
government is one of equal representation for equal numbers of people, without
regard to race, sex, economic status, or place of residence within a state” and
holds that the Equal Protection Clause requires that the seats in both houses of a
bicameral state legislature be apportioned “on a population basis.” (Reynolds v.
Sims (1964) 377 U.S. 533, 560, 568.)
5)
Upholds apportionment on the basis of registered voters in one
specific instance. Specifically, the Supreme Court held Hawaii’s then-present
apportionment based upon distribution of the voting population in constructing
electoral districts “only because on this record it was found to have produced a
distribution of legislators not substantially different from that which would have
resulted from the use of a permissible population basis.” (Burns v. Richardson
(1966) 384 U.S. 73, 93 (emphasis added).) Further provides that this holding is
“not to be understood as deciding that the validity of the registered voters basis
as a measure has been established for all time or circumstances . . . .” (Id. at 96.)
6)
Provides that “the Equal Protection Clause does not require the
States to use total population figures derived from the federal census as the
standard by which this substantial population equivalency is to be measured. . . .
Neither in Reynolds v. Sims nor in any other decision has this Court 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 the Equal Protection Clause is to be measured. The decision
to include or exclude any such group involves choices about the nature of
representation with which we have been shown no constitutionally founded
reason to interfere. Unless a choice is one the Constitution forbids [citation
omitted], the resulting apportionment base offends no constitutional bar, and
compliance with the rule established in Reynolds v. Sims is to be measured
thereby.” (Id. at 91-92.)
7)
Holds that basing districts on voting population rather than total
population would disproportionately affect the constitutionally protected right
to equal representation for people living in the Hispanic district challenged in
that case, rejecting the argument that rejecting statistics based upon total
population, rather than voting population, for redistricting is erroneous as a
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matter of law. (Garza v. County of Los Angeles (9th Cir. 1990) 918 F.2d 763,
773-74.)
8)
Holds, in a California Supreme Court decision, that the federal
Constitution requires apportionment by total population, not by voting
population, and that “[a]dherence to a population standard, rather than one
based on registered voters, is more likely to guarantee that those who cannot or
do not cast a ballot may still have some voice in government.” (Calderon v.
City of Los Angeles (1971) 4 Cal.3d 251, 258-259.) Also provides that this
holding is not to be understood to condemn a voter-based apportionment “in all
circumstances and for all time,” but that the plan would need to show it fairly
reflects population distribution to withstand constitutional attack. (Id. at 264.)
9)
Requires districting in California to be accomplished on the basis of
total population. (Elec. Code Sec. 21500.)
This resolution:
1) States:
 “One person, one vote” has been an enshrined principle of the U.S.
Constitution since it was articulated by Chief Justice Earl Warren in
Reynolds v. Sims (1964) 377 U.S. 533, which was decided at the height of
the Civil Rights movement;
 The U.S. Supreme Court, in Reynolds v. Sims, held that seats in both houses
of a bicameral legislature must be apportioned equally on a population basis
under the Fourteenth Amendment’s equal protection clause;
 Federal courts have consistently endorsed the use of total population
including those ineligible to vote, to determine equal apportionment since
Reynolds v. Sims;
 Political districts across the nation were arbitrarily drawn and severely
imbalanced before the U.S. Supreme Court affirmed the principle of “one
person, one vote” in Reynolds v. Sims;
 Texas plaintiffs, led by Sue Evenwel, Titus County GOP chairwoman, are
attempting to disenfranchise California’s immigrants and children by
challenging the longstanding democratic principle of “one person, one vote”
through their litigation in Evenwel v. Abbott;
 The legal theory proffered by the plaintiffs, that legislative districts must be
drawn in a way that excludes children and noncitizens and instead be drawn
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based on the population of eligible voters, has not been endorsed by the U.S.
Supreme Court;
 63% of California’s population consists of voting age citizens;
 California is deeply concerned with the recent decision of the U.S. Supreme
Court to hear arguments in Evenwel v. Abbot and potentially disenfranchise
37% of our state’s population;
 Not counting immigrants, whether with legal status or undocumented, as full
persons for purposes of apportionment is reminiscent of the U.S.
Constitution’s infamous three-fifths clause that did not view enslaved black
people the same as white people for purposes of apportionment;
 Overturning the long held precedent of “one person, one vote” would be
tantamount to enshrining discrimination and prejudice in the law; and
 These plaintiffs seek to use the U.S. Supreme Court to turn back the clock
on a half century of legal precedent and return to an unjust, unequal system
of drawing legislative districts that would deprive immigrants and children
of representation.
2)
Urges the U.S. Supreme Court to uphold the Constitution’s
principle of “one person, one vote” and not deny California’s children and
immigrants equal protection under the law.
Background
While fundamental to a republic, the U.S. Constitution does not affirmatively
declare a right to vote. Indeed, the right was initially left to the states, which
typically limited the franchise to white male property owners. From laws expressly
limiting the franchise to white male property owners to the imposition of poll taxes
to literacy tests and grandfather clauses, numerous methods have historically been
used to deny various categories of individuals, such as African-Americans, women,
and other minorities from having or exercising the right to vote.
Since the end of the Civil War, however, the right has come to be addressed under
a series of amendments to the Constitution: the Fifteenth Amendment (adopted in
1870 to prohibit states from denying the right to vote on account of “race, color, or
previous condition of servitude”); the Seventeenth Amendment (adopted in 1913 to
permit the direct election of U.S. senators); the Nineteenth Amendment (adopted in
1920 to enfranchise women); the Twenty-Fourth Amendment (adopted in 1964 to
ban poll taxes); and the Twenty-Sixth Amendment (adopted in 1971 to protect the
right of citizens, age 18 or older, to vote). In addition to those textual provisions,
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beginning in the 1960s, the U.S. Supreme Court affirmatively recognized that the
right to vote is a fundamental right guaranteed and protected under the Equal
Protection and Due Process clauses of the Fourteenth Amendment, which have
been read to prevent states from enacting suffrage laws that conflict with
fundamental principles of fairness, liberty, and self-government.
While most traditional limits on voting rights such as race, sex, education, and
wealth have gradually been removed and significant progress has been made to
remove “first generation barriers” to ballot access since the enactment of the
Voting Rights Act of 1965, “second generation barriers” that are constructed to
keep minority voters from fully participating in the electoral process have
continued in their place. These second-generation barriers involve various vote
dilution devices such as racial gerrymandering to redraw legislative districts to
segregate the races for purposes of voting or the use of at-large (as opposed to
district-by-district) elections to eliminate the potency of the otherwise sizable
minority’s votes, that, when adopted with a discriminatory purpose, “cuts down the
right to vote as certainly as denial of access to the ballot.” Another method of
achieving vote dilution, which is of particular relevance to this resolution, has been
by way of malapportionment.
“Apportionment,” refers to the distribution of legislative seats among districts or
allocation of the political power of a set of constituent voters among their
representatives in a governing body. Specifically, it describes the determination,
upon each decennial census, of the number of representatives in Congress which
each state shall elect, the calculation being based upon population. It also
describes the determination of the number of state or local representatives any
single electoral district shall elect, based upon population. “Reapportionment” (or,
“redistricting”) is the realignment of those legislative district boundaries to reflect
changes in population. “Malapportionment,” thereby, refers to the improper or
unconstitutional apportionment (or reapportionment) of a district – i.e. the creation
of electoral districts with unequal ratios of voters to representatives. In other
words, it constitutes vote dilution because the voters in the more populous district
have proportionately less influence in the political process than those in small
districts. For example, if a single-member district has 10,000 voters and another
has 100,000 voters, the smaller district’s voters have ten times the influence as the
larger district’s, per person, over the governing body.
Until the seminal 1962 case of Baker v. Carr however, the U.S. Supreme Court
had declined to review constitutional challenges to apportionment under the theory
that such claims constitute nonjusticiable political questions, which are more
appropriately resolved in the political process. In Baker, the Court held that an
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Equal Protection claim challenging a state’s apportionment of legislative seats, on
the ground that certain citizens’ right to vote was effectively impaired by virtue of
vote debasement (or dilution), presents a justiciable controversy subject to
adjudication by federal court. The following year, in Gray v.Sanders, the Court
first coined the phrase “one person, one vote,” the principle that the Equal
Protection Clause requires voting districts to have about the same population;
anything else would impermissibly dilute the voting power of those in the more
populous districts. As reasoned by the Court:
How then can one person be given twice or ten times the voting power of
another person in a statewide election merely because he lives in a rural area or
because he lives in the smallest rural county? Once the geographical unit for
which a representative is to be chosen is designated, all who participate in the
election are to have an equal vote -- whatever their race, whatever their sex,
whatever their occupation, whatever their income, and wherever their home
may be in that geographical unit. This is required by the Equal Protection
Clause of the Fourteenth Amendment. The concept of “we the people” under
the Constitution visualizes no preferred class of voters but equality among those
who meet the basic qualifications. The idea that every voter is equal to every
other voter in his State, when he casts his ballot in favor of one of several
competing candidates, underlies many of our decisions. [ . . . ]
The conception of political equality from the Declaration of Independence, to
Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth
Amendments can mean only one thing -- one person, one vote.”
Following Gray, in 1964, the Supreme Court decided six cases known as the
“Reapportionment Cases,” chief among them being the landmark case of Reynolds
v. Sims (1964) 377 U.S. 533. In Reynolds, the Court held the apportionment of
Alabama’s Legislature unconstitutional and ordered reapportionment consistent
with the one person, one vote principle. As articulated in Reynolds, the only
permissible basis for drawing districts under the Equal Protection Clause—for both
houses of a bicameral state legislature—is population, not geographical area. The
Court regarded the dilution or debasement of a citizen’s fundamental right to vote
as much a suffrage issue as prohibiting the free exercise of franchise and reasoned
that any substantial disparity in the population of legislative districts has the same
effect as allotting a different number of votes to different individuals. As Chief
Justice Warren’s majority opinion famously described: “Legislators represent
people; not trees or acres. Legislators are elected by voters, not farms or cities or
economic interests. As long as ours is a representative form of government, and
our legislatures are those instruments of government elected directly by and
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directly representative of the people, the right to elect representatives in a free and
unimpaired fashion is a bedrock of our political system.” (Id. at 562.) Consistent
with Reynolds’ holding that both houses of a state legislature must be apportioned
by population, the Court has applied and upheld the one-person, one-vote principle
on numerous occasions and extended it to all forms of local governments.
SJR 13 urges the U.S. Supreme Court to uphold “one person, one vote” principle
and not deny California’s children and immigrants equal protection under the law.
Comments
As stated by the author:
Since it was first affirmed 51 years ago by Chief Justice Earl Warren’s Supreme
Court, “one person, one vote” has been a widely articulated and consistently
upheld tenet of our nation’s Constitution. Before that time, political districts
across the nation were arbitrarily drawn and severely imbalanced – leaving
millions underrepresented. Los Angeles County and its 6 million people, for
example, had the equivalent voting power in our State Senate of a rural district
with barely 14,000 people.
This challenge now is nothing more than a cynical and transparent effort to turn
back the clock on decades of legal precedent and return an unjust, unequal
system of redistricting that could greatly disadvantage diverse and urban
communities and deprive millions of American residents, many of whom are
either Latino or Asian, of political representation. Moreover, as noted in the
U.S. District Court ruling in question (Evenwel v. Perry), the plaintiffs rely
primarily on a legal “theory never before accepted by the Supreme Court or any
circuit court.”
In California, overturning “one person, one vote” could lead to a system of
political segregation that only counts three-fifths of our population and
essentially ignores the rest. Californians believe that all people – not just adult
registered voters – deserve equal protection under our laws and fundamental
political representation.
Therefore, this measure is necessary to urge the Supreme Court of the United
States to uphold the federal constitutional principle of “one person, one vote”
and not deny California’s children and immigrants equal protection under the
law.
FISCAL EFFECT: Appropriation: No
Fiscal Com.:
No
Local: No
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SUPPORT: (Verified 6/18/15)
American Civil Liberties Union
Asian Americans Advancing Justice—Sacramento
California Asian Pacific Islander Budget Partnership
California Immigrant Policy Center
California State Conference of the National Association for the Advancement of
Colored People
California State Council of Service Employees International Union
Coalition for Humane Immigrant Rights of Los Angeles
Latino Coalition for a Healthy California
Los Angeles Center for Law and Justice
Mexican American Legal Defense and Educational Fund
United Farm Workers
OPPOSITION: (Verified 6/18/15)
None received
ARGUMENTS IN SUPPORT: The Latino Coalition for a Healthy California
writes, “Overturning ‘one person, one vote’ would not only turn back the clock on
half a century of legal precedent but would allow for the inequities that would
deprive immigrants and children of representation. It would also send a harmful
message to our society that not all human beings are people. Creating a segregated
political system that does not account for the true composition of the population is
damaging to our democratic system, economy, and social well-being.”
Also in support, the Asian Americans Advancing Justice—Sacramento writes that
“[s]ixty – three percent of California’s population consists of citizens of voting
age. A negative decision in Evenwel v. Abbot could significantly deprive Asian
Americans, Pacific Islanders, Latinos, and other immigrant communities of
political representation. Moreover, because California has a relatively large
number of immigrants who are not yet citizens compared to other states in the
United States, California will likely lose representation in the U.S. House of
Representatives should the U.S. Supreme Court overturn our traditional notions of
one person, one vote. Such a decision would disenfranchise, not just immigrants
and children, but all Californians. Our nation must not create a system of political
segregation where immigrants and children are told they do not count. Election
officials must represent the interest of all residents of a community. Creating a
structure that ignores the needs of some, is anathema to democracy and will
weaken our society.”
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Prepared by: Ronak Daylami / JUD. / (916) 651-4113
6/18/15 17:38:09
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