Rick Hasen on Election Law and ‘One Person, One Vote’

Rick Hasen discusses the dynamic challenges posed by battles to reshape election law, including the upcoming Supreme Court case, Evenwel v. Abbott, deciding the “one person, one vote” issue. Find out what he dubs a potential “political earthquake.”

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  • Richard L. Hasen

    Chancellor's Professor of Law and Political Science
    Expertise: Election Law, Legislation, Remedies, Torts
    Election Law Blog > | ELB Podcast >

  • Jonathan Glater

    Assistant Professor of Law
    Expertise: Higher education law, criminal law, corporate law, white collar crime and securities fraud

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks.

[Jonathan Glater] Welcome to UCI Law Talks; I'm Jonathan Glater. Today we're talking about election law with UCI’s resident expert on the subject, Rick Hasen. He is Chancellor’s Professor, Chancellor Professor of Law and Political Science, author of The Voting Wars: From Florida 2000 to the Next Election Meltdown, host of the new election law podcast, the ELB Podcast available on iTunes and Sound Cloud, is also author of the forthcoming book which I want to ask you about in a moment, Plutocrats United: Campaign Money the Supreme Court and the Distortion of American Elections. Rick thank you so much for joining us today.

[Rick Hasen] Oh it's a pleasure.

[JG] Why is there so much activity in the realm of election law? It seems as though every day there is a decision from the court of appeals or a new law being passed to restrict the franchise. What's happening?

[RH] Well since the year 2000, when we had the disputed election for president that came down to Florida the amount of election litigation in the United States has more than doubled. I've been keeping track of this; there used to be fewer than 100 cases per year nationally involving the various election issues. It's now around 240 cases a year so it's not just your imagination. There's a lot more foment; you have more states passing election laws often on party lines to try to give one party or the other some partisan advantage and you have litigation over those changes in the rules some of those cases have made it all the way to the Supreme Court many of them get resolved in the lower courts. So there's been an uptick in the amount of both legislation and litigation.

[JG] Is it that someone just realized this is a battleground that’s worth contesting? What prompted this? It has always been possible I assume, to fight these battles.

[RH] Sure, but I'd say I have a chapter in my 2012 book, The Voting Wars, called “Everything I Need to Know I Learned in Florida. And the lesson that people learn from Florida or the lesson the political operatives learned was that in a very close election the rules of the game matter and so trying to make what might seem to be even minor changes in a razor thin election could make a difference and I think that's motivated people. I also think there's been a lot of rhetoric on both sides about voter fraud and voter suppression. It's ginned up the base; it's become a campaign issue so recently Scott Walker, speaking of the Iowa state fair, one of the things he touted was his passage of a voter ID law so that's kind of red meat for Republican voters and so it has a political element to it as well.

[JG] I want to ask you about the forthcoming Supreme Court case and then that I'm going to ask you to back up and situate that in that larger context that that you just alluded to. So Evenwel and I'm not sure I'm pronouncing it right, can you tell us a little bit about the facts of that case?

[RH] Sure this is a case the Supreme Court is going to hear this term. It's a case that comes out of the state of Texas and it's a question about the drawing of districts. Now most redistricting disputes involve where the lines are drawn, whether to include or exclude Democrats or Republicans, or put this group or that group within protected incumbents. This case involves a somewhat different question which is: What's the denominator that you use when you divide districts? So since the 1960’s, the Supreme Court has said that districts have to be of roughly equal size and the question presented in Evenwel is: What is the denominator? Are we looking at the total number of voters in the district? Are we looking at the total number of people population equality or voter equality? If we look at voter equality, we talk about eligible voters, actual voters those kinds of questions. Since the 1960’s, the court has not clarified what it's meant by the one person, one vote rule. Although in a 1966 case called Burns v. Richardson, the Supreme Court said that although most states use total population as their denominator, Hawaii could potentially use registered voters and that this was a choice that is generally left up to the states. That's where things seem to be left; there were many challenges that have been filed since the 1960’s to try to argue for a total voter rule. The Supreme Court has turned back those challenges but it accepted this one for reasons we can talk about why I think this case comes up procedurally a little bit differently. The court has taken this case and the claim in this case is that voters who live in certain districts in Texas are having their votes diluted because if you look at comparing just the number of voters in various districts, in districts where there are large numbers of noncitizens and here in Texas have primarily Latino voters. But we could also be talking about children or ex-felons who are no longer able to cast the vote, that their votes are being diluted because they're in districts where each voters vote counts less than in districts where there are fewer non-eligible people voting and so the question is, does a violate the equal protection clause of the 14th Amendment of United States Constitution to draw lines based on population equality as your denominator rather than on the basis of voter equality? And that's a slight oversimplification because there's also a claim that you can draw lines to promote or to equalize both voter equality and population equality. Although that's not certain if that's empirically true.

[JG] So the Supreme Court has managed to avoid addressing this issue to date you alluded to the fact that this time they've been forced perhaps to accept the case because of the procedure that was used. Can you can you elaborate a little bit how we got here?

[RH] Sure. I wouldn't say force; that's probably a bit of an exaggeration but I would say that to understand a bit about supreme court procedure most cases come up to the Supreme Court on a circuit petition, a petition for writ of certiorari. This is something where the Supreme Court's decision to not take a case has no precedential value. So no lawyer can point to the fact that cert was denied and say that means the Supreme Court agreed with what the lower court did. Most of the cases that come to the Supreme Court come on this circuit petition and the earlier cases raising this one person one vote question. Clearly when the one case just a few years ago by the same institutional plaintiff, the project on fair representation. There's a certain subset of cases, a very small subset of cases involving mostly election issues. Certain voting rights act cases, certain redistricting cases, and certain campaign finance cases that come up from a three judge court three judge federal district court with direct appeal to the Supreme Court and when the Supreme Court declines to hear one of those cases it is a precedent that the lower court got the results if not the reasoning correct. And so the fact that this is coming up on mandatory appellate jurisdiction, we know from the Supreme Court, it makes the justices more apt to hear these cases because they know that their they are presidential even when they don't decide. And in fact, of the 29 cases in the election law area that the Roberts Court has decided from 2006 to the present, 14 of the 29 came up on this mandatory appellate jurisdiction.

[JG] Can we read tea leaves there then or make predictions about what the court is likely to do given that they decided not to give presidential weight to the decision of the lower court?

[RH] Well I think it means that at least four of the justices think there's a serious question here that at least deserves a look. You can't always draw a conclusion as to what's going to happen. A good example of this is the Obamacare case that the Supreme Court heard last term King v. Burwell. It took four votes to hear that case yet the final decision was 6-3 to reject the claim. It's kind of surprising that the court took the case. At the time the court took the case, there was not a split among circuits which is a good reason to take one of these cases. Did Justice Kennedy or Chief Justice Roberts agree that the issue was important enough to vote to hear the case but then voted to reaffirm? That seems to be what must have happened we don't know because these deliberations are secret. So I don't think we should read too much into it other than that we know for Justice Alito and Chief Justice Roberts they've said publicly when a case comes up on mandatory appellate jurisdiction they feel more of an obligation to hear that case and to take it seriously and to give it a full airing.

[JG] Let's talk about the plaintiffs for just a moment because you alluded to who they are these are these are not novice litigators here are litigants here. Who's brought this?

[RH] So there's a guy named Ed Blum who runs the project on fair representation and his big issue is the issue of race and color blindness. So he is the same person the project on fair representations is essentially Ed Blum’s ideas with some donors who backed his ideas and some very good lawyers and he puts the two together. And he is the person who is backing the Fisher v. University of Texas anti-front-of-action litigation. He is also the person who was behind the two challenges to the constitutionality of Section V of the Voting Rights Act, the part of the Voting Rights Act that required jurisdictions with a history of race discrimination in voting to get approval before they make changes in their voting rules. That was the Shelby County case and before that the Namudno case. So this is another in the series of cases he has brought. And if you ask what's the common thread in these cases, well it's easy to see the common thread between Fisher and Shelby County which is race based distinctions. But there’s a race issue here too, or at least ethnicity issue here which is that in Texas at least, when you talk about total population and you talk about the difference between population equality and voter equality you're talking about a large number of non-citizen Latinos. And so the claim is in essence this is giving too much power to Latinos in terms of representation so I think that's the common thread. What I expect would happen if this challenge is successful is that it would shift power from urban areas and Democratic areas where you're much more likely to have large Latino non-citizen populations and populations of children who are also ineligible to vote, to Republican districts and to rural districts where rural districts tending to be Republican. So there's a partisan aspect to this and there’s a kind of a race and neutrality issue to this so that's where I think these things have some commonality.

[JG] Can you tell us a little bit about the argument to be made? It's not as though this is dealt with in the Constitution explicitly. So what are the plaintiffs arguing?

[RH] Well it is interesting that you bring up the text of the Constitution which we law professors often neglect where sometimes reminded by justices like Justice Scalia. When it comes to apportioning representation in the Congress among the states, there are 435 members of Congress, how do we decide how many are represented for each state? The Constitution specifically says in the 14th Amendment that it's done by a count of all the people. All the people for purposes of apportionment. But you're right it doesn't say anything because there's no one person one vote rule explicitly in the Constitution. For state elections, it comes from the equal protection clause, for federal elections the Supreme Court found in Article I of the Constitution. And so there are arguments, there are principal arguments to be made for both an equal voter rule and a total population rule but I think there are really two questions embedded in that. One question is equal voters or total population equal population a better standard normatively. But the other question is who should decide that? And what the Supreme Court said in the 1960’s was this is a question going to leave to the states. This is something we don't have to decide which one, both are principled choices and let the political process decide. And Texas has decided to continue to use total population and so it's kind of odd that you have a group of conservatives who are backing not only overturning the precedent to Burns v. Richardson but also kind of an anti-federalist argument where they're saying that states should not have discretion to decide this, that everyone should have to stick with the same total voter rule for the division of these things. I think on the merits there are arguments on both sides as to which is a better measure of equality but I really think this should be left to the States.

[JG] I was going to ask in a blog post you wrote that this is not really a conservative argument. Is this just partisanship being waged in through the courts or is…?

[RH] Well I think it's either partisanship on attempt to give an advantage to the Republican Party in Texas. And, I expect although this involves the state legislature which is heavily Republican in Texas, I think if successful this could easily be translated to congressional redistricting which could have national implications. But it also fits into the ideology of the project on fair representation which is a kind of color blindness and an attempt to prevent what I think Blum believes to be special protections for minorities. But that's not the way I look at the case but I think that's how he looks at the case and I think that is part of his probably motivating him. Although I suspect that many of the backers of this are seeing a partisan advantage, should this claim be successful.

[JG] Does this case relate to battles over spending restrictions over voter ID, some of the other hot button topics in election law?

[RH] So I would say that this fits in closest to the struggles over the Voting Rights Act and about representation. And in fact, recently the city of Yakima, Washington which was involved in some Voting Rights Act Litigation. They were sued for not giving enough minority representation on their city council they filed a brief supporting the plaintiffs in the Evenwel case and making the argument that it's really impossible to comply with the total equality principle and have a fair representation system without destroying what they see as their choice in terms of how they want to run their electoral system. And what's at stake is how much representation is there going to be for, in this case group of Latino voters. And so I think this is part of a greater struggle over voting rights which has both the partisan dimension and a racial dimension in the Evenwel case. It really involves Latino's rather than African-Americans and lots of the other cases especially the cases in the south you think of the North Carolina voting rights case or the Texas voting rights case, both of which are working their way through the courts but probably both end up at the Supreme Court. You're talking much more about African-American populations but it's really a struggle that's both a partisan struggle and a racial struggle as we passed the 50th anniversary of the Voting Rights Act and as people are rethinking the relationship between representation and the entire political process.

[JG] Are there states that have experimented with the kind of regime that the plaintiffs are trying to get to in Evenwel.

[RH] Well remember back in that 1966 case in Burns v. Richardson, Hawaii was trying to use registered voters. But a point that's been made repeatedly by Professor Nate Persily of Stanford Law School who's been involved in actually drawing district lines the special master for courts is that we do not have very good information as to the total number of voters. That is the U.S. Census which we have to take every 10 years under the provisions of the Constitution collects information on people not on voters. And so personally argues it would actually take a supreme court order to the Census Department to actually collect this kind of information. Otherwise, trying to use sampling or trying to use survey data is likely to be ruled with errors. So if the Supreme Court adopted a voter equality denominator, we're not really equipped to be able to do that in a very accurate way. And so, it would require collecting more data which is another reason why I think that this doesn't look like a very conservative case because here you're asking for the federal government to do even more things and to have even more control in this area.

[JG] So any predictions you're comfortable making about the outcome of this case when it gets to the court?

[RH] Yes, I predict I'm going to be very interested in the oral arguments. And based on what happened in the Arizona redistricting case which was decided last term, I predict that I'm going to be very wary of making predictions because I listened to Justice Kennedy in that case in the oral argument and I thought that, that provision was going to be struck down. And in fact, the Supreme Court upheld citizen redistricting in Arizona despite a challenge that it violated the elections clause of the Constitution. And so I think we really have to see how these things work out but it would be quite an earthquake, a political earthquake for the Supreme Court to change the one person, one vote rule. I will point out that there are two justices in particular who have some interest in perhaps changing the rule. One is Justice Thomas who, back in 2001, dissented from a Supreme Court search raising the same issue. The other is Justice Alito who, when he was applying for a position at the Reagan Justice Department a long time ago, when he was asked about what motivated him to get into politics one of the things he said was that he was upset with the Warren court's one person one vote rule. And so be interested to hear what both of them have to say. Probably won't be hearing from Justice Thomas at the oral argument but I'm sure he'll have plenty to say when he writes his opinion, could be a dissenting opinion in the opinion later on in 2016 most likely.

[JG] Let me ask you about a safer prediction then. This has to do with your forthcoming book that I said I wanted to ask you about, The Plutocrats United. Is Evenwel in that book?

[RH] Oh it's interesting you say that. Evenwel was the very last thing I added to one of the footnotes of that book because the book is about campaign finance but I do draw an analogy between the one person one vote cases. And the equality argument for limiting money in politics. And one of the things I had said in the earlier draft of the book was well, it's well settled one person one vote rule is really nothing to say about it anymore. It's accepted by everyone on the left and the right and now of course it's potentially up for grabs again in Evenwel. So that's made it into the footnotes that was all that there was space for at that point but it does make a cameo appearance in that book.

[JG] And I suspect it'll be something also that you'll be discussing on the podcast forthcoming no doubt?

[RH] Yes, we're planning on doing I think at least once a month on the ELB podcast talking to people in the run up to the 2016 election on the major election law issues that are facing this country.

[JG] My general wrap up question in interviews has always been is there something else I should be asking? So I'll pose that now.

[RH] Well I would say the sleeper issue, the one that's coming up potentially to the Supreme Court within the next year maybe even before the 2016 election is a challenge to what remains of the McCain-Feingold law, which is the soft money provisions. And we talked about that three judge court that special appeals rule, there's a new case that's been filed by Republicans in Louisiana by campaign finance opponent named Jim Bopp who's brought Citizens United in a bunch of other cases. He's trying to get a three judge court to challenge the McCain-Feingold soft money rules. If he does, that case will be on the fast track to the Supreme Court maybe before the 2016 election.

[JG] Then we will certainly have to record another one of these sessions - I think and I hope we can have you back to talk about other issues and election law in the future. If the topic is of interest, you should also tune in to Professor Hasen’s ELB podcast which again is available on iTunes and SoundCloud. Rick, thank you so much for joining us.

[RH] It was a pleasure.

[Narrator] Thank you for joining us for UCI Law Talks produced by the University of California, Irvine School of Law.