“As a practical matter, the ruling mostly helped Democrats.”

April 4, 2016 12:51 PM

Supreme Court Rejects Challenge to ‘One Person One Vote’ by Adam Liptak [The New York Times] The Supreme Court on Monday unanimously ruled that states may count all residents, whether or not they are eligible to vote, in drawing election districts. The decision was a major statement on the meaning of a fundamental principle of the American political system, that of “one person one vote.” Until this decision, the court had never resolved whether voting districts should contain the same number of people, or the same number of eligible voters. Counting all people amplifies the voting power of places that have large numbers of residents who cannot vote legally — including immigrants who are here legally but are not citizens, illegal immigrants, children and prisoners. Those places tend to be urban and to vote Democratic.

EVENWEL v. ABBOTT ( ) Affirmed. [via: law.cornell.edu]

Syllabus [HTML] [PDF]
Opinion, Ginsburg [HTML] [PDF]
Concurrence, Thomas [HTML] [PDF]
Concurrence, Alito [HTML] [PDF]


- The Supreme Court Just Shut Down the Demographic Equivalent of Gerrymandering. by Dara Lind [Vox]

Right now — and, under today's Supreme Court decision, for the foreseeable future as well — states carve up congressional districts to have a roughly equal number of people in each district, a principle known as "one person, one vote." There's some variation allowed in how many people a given district can have, but the general principle is that each member of the House of Representatives (and of state legislatures) is responsible for representing and looking out for the population that lives in his or her district. But the term "one person, one vote" is unhelpfully confusing, because some of the people who get counted in drawing up congressional districts can't vote: They're noncitizens, or children, or felons who've lost voting rights under their state laws. In some districts in southern Texas, for example — as this Pew Research Center analysis shows — just a little over half of all residents are eligible to vote.

- Thoughts on Today’s “One Person, One Vote” Decision. by Ilya Somin [The Washington Post]

In my view, Justice Ruth Bader Ginsburg’s majority opinion is absolutely right to conclude that nothing in the Constitution forbids states from apportioning districts based on total population. She also right to emphasize that nothing in the Court’s precedents forbids that approach (though, as she recognizes, some cases do suggest that other approaches to apportionment are permissible, as opposed to required). Finally, she emphasizes that “[a]dopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.” Currently, all states use some version of total-population apportionment. Requiring them to follow the eligible voter or registered voter approach would lead to a major upheaval, and might in many cases be very difficult to implement, because we don’t currently have a reliable data base on the numbers of citizens and eligible voters who live in each given geographic area. Mandating a radical departure from present practice might nonetheless be justified if it were clearly required by the text or original meaning of the Constitution. But there is no good reason to believe that it is.

- Equal Representation Won a Qualified Victory at the Supreme Court by Scott Lemieux [New Republic]

It’s worth considering the implications of this. When states were given a free hand to apportion legislatures by any method they saw fit, the result was the massive underrepresentation of minority voters. At the time Baker v. Carr was decided, for example, some state legislative districts in Tennessee had ten times the population (and hence, a tenth of the representation) of others. Such malapportionment was a major piece of the Jim Crow apartheid system. To Thomas, this isn’t an issue. Many of the framers of the Constitution “viewed antidemocratic checks as indispensable to republican government,” Thomas asserted. “And included among the antidemocratic checks were legislatures that deviated from perfect equality of representation.” Thomas is not wrong in his characterization. But this doesn’t mean that, when deciding a Fourteenth Amendment case in 2016, we should be applying the democratic theories of political elites that preceded the Fourteenth Amendment by nearly a century. Thomas’s concurrence is almost a perfect expression of the Republican Party circa 2016, as seen in Republican-controlled states like Wisconsin. Representing a dwindling share of the population, Republicans have the choice of trying to broaden their appeal or trying to suppress poor and minority voters. They have generally decided to do the latter; and if this is undemocratic, at least two allies on the Supreme Court have said that’s perfectly OK. Today’s decision, then, is just one battle in a long war. Some states will probably take the Supreme Court’s invitation to dilute minority vote representation. Whether they can get away with it will depend on who controls the Supreme Court in 2016.

posted by Fizz (81 comments total)

And unanimously, no less. Even SCOTUS' four most conservative members couldn't wholly swallow this latest Republican attempt to rig the system.
posted by Gelatin at 12:57 PM on April 4, 2016 [30 favorites]

Rick Hasen: Big Victory for Voting Rights as #SCOTUS Rejects Plaintiffs’ Claim in Evenwel One Person, One Vote Case

Justice Ginsburg’s opinion holds that districting using total population was consistent with constitutional history, the Court’s own decisions, and longstanding practice. A long section of Justice Ginsburg’s opinion recounts constitutional history, and relies on the fact that for purposes of apportioning Congressional seats among states, total population, not total voters, must be used. Plaintiffs’ argument in Evenwel was inconsistent with this practice. As to the Court’s own precedents, Justice Ginsburg acknowledged language supporting both total voters and total population as possible bases, but Court’s practice has been to look at total population in its cases. Further, that is the practice that states uniformly use, despite the occasional case such as Burns v. Richardson, allowing Hawaii to use a registered voter level.

Finally, Justice Ginsburg gives a sound policy reason for a total population rule. In key language, she writes that “Nonvoters have an important stake in many policy debates—children,, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.” A footnote following this states that even though constituents “have no constitutional right to equal access to the their elected representatives,” a state “certainly has an interest in taking reasonable, nondiscriminatory steps to facilitate access for all its residents.”

Perhaps the most important aspect of Justice Ginsburg’s opinion, and especially notable because it attracted the votes of not just the liberals but also Chief Justice Roberts and Justice Kennedy, is the Court’s refusal to give Texas the green light to use total voters if it wants in the next round of redistricting. The Court simply put the issue off for another day. It is hard to stress enough what a victory this is for liberal supporters of voting rights. Many of us thought Burns already gave Texas this power. The fact that the Court leaves that issue open will serve as a deterrent for states like Texas to try to use total voters in the next round of redistricting, because it will guarantee major litigation on the question.

posted by zombieflanders at 12:59 PM on April 4, 2016 [3 favorites]

This was unanimous?

I'm not quite wearing my surprised face, but I'm close.
posted by nubs at 12:59 PM on April 4, 2016 [7 favorites]

I assume the next attempt to marginalize democratic voters will be to cut funding so that the census can't do a thorough job documenting noncitizens, etc.
posted by C'est la D.C. at 1:03 PM on April 4, 2016 [14 favorites]

Unanimous in that nobody took the huge, unprecedented step of saying that the Constitution forbids apportioning by total population. Alito and Thomas wrote separately to note that nothing in the Constitution requires it, meaning Republican state legislatures can now try their hand at kneecapping cities' voting power this way. Also, Thomas wrote a separate dissent where he says "one person, one vote" isn't in the Constitution at all and it should be entirely up to states how to apportion representation, with no court oversight on the subject whatsoever.
posted by Holy Zarquon's Singing Fish at 1:04 PM on April 4, 2016 [16 favorites]

I took the unanimous decision as being the court's way of stating that it doesn't want to be perceived as a politically divided institution.
posted by phooky at 1:04 PM on April 4, 2016

Unanimous in that nobody took the huge, unprecedented step of saying that the Constitution forbids apportioning by total population. Alito and Thomas wrote separately to note that nothing in the Constitution requires it

Ah, that helps explain it. Surprised face completely put away again.
posted by nubs at 1:05 PM on April 4, 2016 [6 favorites]

I took the unanimous decision as being the court's way of stating that it doesn't want to be perceived as a politically divided institution.

Bit late for that.
posted by Pope Guilty at 1:09 PM on April 4, 2016 [8 favorites]

U.S. Constitutional law isn't my thing, but wouldn't the total population principle be rather implicit? The infamous three-fifths rule would have no purpose otherwise, as slaves sure as hell weren't voters..?
posted by Capt. Renault at 1:11 PM on April 4, 2016 [31 favorites]

Such malapportionment was a major piece of the Jim Crow apartheid system. To Thomas, this isn’t an issue. Many of the framers of the Constitution “viewed antidemocratic checks as indispensable to republican government,” Thomas asserted. “And included among the antidemocratic checks were legislatures that deviated from perfect equality of representation.”

Fuck you, Thomas. Just because it's antidemocratic doesn't imply it's also a check. Sometimes A lot of times it's people being giant assholes.
posted by MikeKD at 1:13 PM on April 4, 2016 [7 favorites]

It should be entirely up to states how to apportion representation, with no court oversight on the subject whatsoever.

I'd love to hear Thomas' opinion on the three-fifths clause.
posted by C'est la D.C. at 1:13 PM on April 4, 2016 [6 favorites]

deviated from perfect equality of representation

Well, that's the most horrifying euphemism I've heard recently.
posted by Etrigan at 1:14 PM on April 4, 2016 [3 favorites]

As the NYTimes article mentions, this case was brought by the same group (which apparently is mostly just one guy) that brought the case that eliminated 4(b) of the Voting Rights Act, Shelby County v. Holder (the consequences of which were shown in Arizona recently!).

It's web page is... ugh. This is one of those times when you have to know their general bias to be able to interpret the statements. For example, "Representing individuals who have been victims of racial discrimination in hiring, firing, and promotion." sounds like it could be good, but of course they mean white people who have been the "victims of racial discrimination"...
posted by thefoxgod at 1:15 PM on April 4, 2016 [4 favorites]

I'd love to hear Thomas' opinion on the three-fifths clause.
As a Republican, I think he'd refer to the cases Arkell v. Pressdram and in re I got mine
posted by MikeKD at 1:18 PM on April 4, 2016 [6 favorites]

this case was brought by the same group (which apparently is mostly just one guy) that brought the case that eliminated 4(b) of the Voting Rights Act, Shelby County v. Holder (the consequences of which were shown in Arizona recently!).

So this one being a unanimous verdict against means his next one's automatically rejected, right?
posted by Etrigan at 1:18 PM on April 4, 2016

Be nice if everyone got a vote, too.
posted by Artw at 1:26 PM on April 4, 2016 [4 favorites]

I don't mean to hate on your pull quote for the title Fizz but it grates on me that the NYT chose to frame it that way. As a practical matter the ruling helps every single damned citizen of this ridiculous country be better protected from the nutjobs that occasionally manage to seize control of state governments trying to obliterate their right to be represented in government, and it barely even manages that.
posted by Wretch729 at 1:27 PM on April 4, 2016 [13 favorites]

I think Thomas' view is that representation must be apportioned equally between the states, because the Constitution says so, but every state can do whatever it damn well pleases, because something something states rights. He claims that states can divide districts on any basis as long as everyone who's eligible gets to vote.
posted by zachlipton at 1:29 PM on April 4, 2016 [1 favorite]

Without Scalia threatening to have their loved ones fed to wild pigs somewhere, even the conservative justices can be pretty reasonable.

(I mean, come on, nobody's afraid of Clarence Thomas.)
posted by Naberius at 1:33 PM on April 4, 2016 [1 favorite]

And unanimously, no less. Even SCOTUS’ four most conservative members couldn't wholly swallow this latest Republican attempt to rig the system.

Oh, blah. When a ruling is unanimous it surely says less about justices unhappily choking something down and more about how many issues -even politicized ones- are matters of legal debate, not sentiment and opinion.
posted by Going To Maine at 1:38 PM on April 4, 2016 [10 favorites]

Charles Pierce: Today's Voting Rights Victory Isn't All It's Cracked Up to Be, Despite some forceful words from Ruth Bader Ginsberg.
posted by homunculus at 1:40 PM on April 4, 2016 [1 favorite]

It's weird to see people happy about a victory when this pretty much just affirms the status quo is okay and kicks the issue of whether or not states can screw around with it down the road. It's not a victory; it's a holding action. Am I missing some other big legal point here?
posted by Wretch729 at 1:41 PM on April 4, 2016 [4 favorites]

Washington, DC: 658,893 people, 0 votes in Congress.
posted by schmod at 1:53 PM on April 4, 2016 [28 favorites]

Washington, DC: 658,893 people, 0 votes in Congress.

Do they still put TAXATION WITHOUT REPRESENTATION on their license plates?
posted by Pope Guilty at 1:58 PM on April 4, 2016 [3 favorites]

Fuck yes, we do.
posted by schmod at 2:07 PM on April 4, 2016 [46 favorites]

I'm happy about the result of this, but I can't help but think that drawing districts, using the number of eligible voters in general makes more sense... Am I missing something (apart from the political implications)?
posted by Joakim Ziegler at 2:10 PM on April 4, 2016 [2 favorites]

An elected representative is supposed to act on behalf of everybody in his or her constituency, not just the ones who voted, or even the ones who are capable of voting.
posted by Holy Zarquon's Singing Fish at 2:14 PM on April 4, 2016 [13 favorites]

Just because you are not an eligible voter doesn't mean you should not have congressional representation. Maybe you are a minor, the child of voters. Maybe you are an immigrant (and potentially the parent of voters). Maybe you are an ex-con, in a state which disenfranchises ex-cons. You still deserve someone in Congress representing you. The laws of the land are for we, the people of the United states, not "we, the eligible voters".
posted by fings at 2:19 PM on April 4, 2016 [7 favorites]

because: representational government, not direct democracy

because: public health, herd immunity, education -- can't be reserved only for a subset of the population without harming everyone.

The definition of "deserving" drifts narrower if "the deserving" get to vote on who is and who isn't one of them.

You imagine you'd always be one of them.
They probably think otherwise. More for them if you aren't in the club.
posted by hank at 2:23 PM on April 4, 2016 [1 favorite]

I'm happy about the result of this, but I can't help but think that drawing districts, using the number of eligible voters in general makes more sense... Am I missing something (apart from the political implications)?

Because your elected representative in a legislature represents everyone from their district/riding/whatever you want to call it. Even if you didn't vote for them. Even if you didn't vote at all. Even if you couldn't vote, for whatever reason.

Just because the political process in general has descended into a bunch of partisan shitbaggery doesn't mean that we should forget that there is an expectation of constituent service and working to solve problems in a district, which impact everyone who lives there.
posted by nubs at 2:27 PM on April 4, 2016 [2 favorites]

using the number of eligible voters in general makes more sense... Am I missing something (apart from the political implications)?

Make it eligible voters only, and then watch who's eligible to vote change drastically.
posted by feckless fecal fear mongering at 2:29 PM on April 4, 2016 [3 favorites]

I'm really unclear on how apportionment by number of eligible voters was ever supposed to work. The Census determines, at least as well as its methodology allows, the total population of states and smaller areas. What system is there to figure out how many eligible voters there are in a particular area? While it's possible to subtract out children, the Census does not determine citizenship, competency, felony disfranchisement status, etc...
posted by zachlipton at 2:31 PM on April 4, 2016 [3 favorites]

including immigrants who are here legally but are not citizens, illegal immigrants, children and prisoners. Those places tend to be urban and to vote Democratic

Um, no. At least not in states with rural prison towns.
posted by ocschwar at 2:39 PM on April 4, 2016 [1 favorite]

If only we could convince the court that the practice of gerrymandering has also broken the one person / one vote rule.
posted by humanfont at 2:44 PM on April 4, 2016 [5 favorites]

Unanimous (sorta) is nice but I really would have liked a much, much stronger opinion. Because as the great pull quote from Lemieux aptly points out: Some states will probably take the Supreme Court’s invitation to dilute minority vote representation. You think, Scott?

Here's hoping for the worst of all horrid R choices -- Trump -- and a gigantic Democratic landslide that anchors a solid majority on the Court, throws out the gerrymandering legislatures and their groveling governors, and btw gives back both houses of Congress. And then some very, very aggressive quick action to nail down voting rights for good and all. The attack on voting rights is one of the greatest threats to liberty in this country right now.
posted by bearwife at 2:53 PM on April 4, 2016 [2 favorites]

What system is there to figure out how many eligible voters there are in a particular area?

This Pew Research article has stats on eligible voters which they cite from the American Community Survey, the "detailed" census. That in turn has all sorts of APIs and query tools, you can find high-level summary stuff online but to do the kind of detailed stuff Pew did you'd have to spend way more time than I have.

They also note:

Most important, while the American Community Survey asks about immigration and U.S. citizenship status, the decennial census does not. And because the decennial census counts everyone (which the ACS, being a sample-based survey, does not), it has been the only source of data for drawing district lines (a point addressed at length in an amicus brief filed by several political scientists). That means that if the Supreme Court requires districts to be drawn with equal numbers of eligible voters, it may also have to decide just how those eligible-voter numbers are to be determined.
posted by thefoxgod at 2:58 PM on April 4, 2016 [1 favorite]

Why would democrats be any more likely than republicans to eliminate gerrymandering? Gerrymandering is job security; it's good for all career politicians, regardless of ideology. The fight is just which party gets to rig the system.
posted by I-Write-Essays at 2:58 PM on April 4, 2016 [1 favorite]

If only we could convince the court that the practice of gerrymandering has also broken the one person / one vote rule.

This was something along the lines of what I wanted to say. Until the practice (by the parties, who again control most/all aspects of the system) of gerrymandering is scuttled the system will continue to be manipulated by the parties to benefit whichever one of the two (sigh, still only two) who control the power.
posted by terrapin at 3:08 PM on April 4, 2016

Are prisoners assigned to the voting districts they lived in when they were arrested, or to the rural spaces where they tend to be incarcerated? Because in many places this would be giving an outsized representation to small, conservative places and stealing that representation from already-disenfranchised urban places.
posted by anotherpanacea at 3:13 PM on April 4, 2016 [4 favorites]

Are prisoners assigned to the voting districts they lived in when they were arrested, or to the rural spaces where they tend to be incarcerated?

The census has always counted prisoners as residents of their prison location.
posted by kickingtheground at 3:16 PM on April 4, 2016 [2 favorites]

NB: When the Supreme Court unanimously shuts you down, it probably means you were being an asshole ...
posted by ZenMasterThis at 3:32 PM on April 4, 2016

The census has always counted prisoners as residents of their prison location.

I'm pretty sure that this used to be seen as an anti-liberal measure for the reason that anotherpanacea gave: many of those prisoners have been removed from liberal areas (thereby diminishing their voting power) and inserted into conservative ones. I'm a bit confused at this switch to viewing it as anti-conservative.
posted by Joe in Australia at 3:40 PM on April 4, 2016 [2 favorites]

U.S. Constitutional law isn't my thing, but wouldn't the total population principle be rather implicit? The infamous three-fifths rule would have no purpose otherwise, as slaves sure as hell weren't voters..?

Not to mention women. No, seriously, don't mention them. Oops, too late.

Anyhow, what's the point of being able to gerrymander if you can't get around the rules? Here in Oregonoia, the citizens of Portland enjoy gerrymandering as a high form of art. The voting districts there look like contour lines on the inside of a box canyon.
posted by mule98J at 3:43 PM on April 4, 2016

I'm a bit confused at this switch to viewing it as anti-conservative.

Prisoners are a pretty tiny minority of non-voting residents. For one thing, in a lot of states, prisoners don't get their voting rights back when they finish their sentences. (In my state, anyone convicted of a felony is barred from voting for life, unless the governor grants them a special dispensation, which he almost never does. That includes plenty of people who never serve a day in prison.) But also, there are more people in other categories (children and non-citizens, for instance) than people who are disenfranchised for criminal convictions.
posted by ArbitraryAndCapricious at 3:47 PM on April 4, 2016

Yeah, the prisoner population is nothing compared to, say, the non-citizen population. 7% of the US resident population are not citizens compared to about 0.91% of adults (so even smaller percentage of total population) that are prisoners.

(And of course children would be the #1 category, probably, but I suspect children are more evenly distributed, while non-citizens are far more common in some areas than others as that link shows).
posted by thefoxgod at 3:56 PM on April 4, 2016

And in states where convicted felons, for example, are not eligible to vote, then once they get out of prison they are presumably returning to their home area and would count there again. I assume there are more ex-prisoners than active prisoners at any given time.
posted by thefoxgod at 3:57 PM on April 4, 2016

(And of course children would be the #1 category, probably, but I suspect children are more evenly distributed, while non-citizens are far more common in some areas than others as that link shows).

I don't think so. The average age in rural areas is significantly higher than in urban ones, and I wouldn't be surprised if there were more kids in areas with a lot of immigrants than in areas with fewer immigrants. I don't know if it's enough to make a difference.
posted by ArbitraryAndCapricious at 4:01 PM on April 4, 2016

I guess I was assuming that would be offset some by my perception that more religious (conservative) areas have more children. But I'm not sure if the data backs that up.
posted by thefoxgod at 4:06 PM on April 4, 2016

U.S. Constitutional law isn't my thing, but wouldn't the total population principle be rather implicit? The infamous three-fifths rule would have no purpose otherwise, as slaves sure as hell weren't voters..?

Note that the three-fifths rule related to the number of congresspersons apportioned to each state, where the one-person-one-vote rule is (today) extremely strict. This decision relates to the design of districts within a state, including state legislature and local legislature districts, where there is a bit more leeway in terms of permissible practices.
posted by Pfardentrott at 4:10 PM on April 4, 2016

Am I ill? Did I read that right? The more prisoners you have the more political power you get?

If I wasn't ill, I think I am now.
posted by adept256 at 4:33 PM on April 4, 2016 [3 favorites]

Prisoners are a pretty tiny minority of non-voting residents.

This varies a lot by state, and can be exacerbated by other trends. Maryland currently reassigns prisoners to their home districts. So do New York, California, and Delaware.

I'm wondering if this ruling makes that illegal. SCOTUS had previously refused certioriari on a challenge, but this ruling sounds like it would reverse that law.

Since Baltimore is already often disadvantaged in state-level politics, I'd hate to see that happen.
posted by anotherpanacea at 4:58 PM on April 4, 2016

Yea, this is an invitation for Texas to shift to apportionment by eligible voters, all this decision said is that nothing in the Constitution prohibits total population, not that the eligible voter standard is unconstitutional. Look for Texas or Kansas or Arizona to make the change, and force the Supreme Court to rule on whether one-person-one-vote is required or whether by eligible voters is prohibited. Basically, they went for broke not caring whether they lost, and SCOTUS left the door open for another avenue for doing the same thing.
posted by T.D. Strange at 5:00 PM on April 4, 2016

"I'd love to hear Thomas' opinion on the three-fifths clause."

From one of anotherpanacea's earlier posts on Thomas's judicial philosophy, one of the things that explains a lot with Thomas is to realize that he's not a conservative, he's a nihilist. He sees things like the three-fifths clause as horrible but indicative of the framer's intent — he believes that the intention was to build a racist, anti-democratic system. And in a lot of ways, he's right. Where he differs is 1) in envisioning an extremely liberal, textual fundamentalist view of the constitution, which gives the federal government much less power than it currently enjoys, and 2) that remedies that attempt to fix the legacy of slavery and bigotry are intentionally ineffectual sops that actually perpetuate the systemic injustices while making white liberals feel better about themselves.

So, his ruling makes sense in the context of a three-fifths clause that was undoubtedly part of the original constitution — it was racist, but inarguably constitutional. Therefore, he doesn't think that the courts — whose role is to decide what is constitutional — have a role in fixing the problems of unequal representation, but that the legislatures have that duty and power, and if people don't like it, they can amend the constitution.

That amending the constitution is functionally impossible is not his problem, from his point of view. Neither is the fact that diminishing representation for non-voters would likely make their lives worse. Things have already been worse, plus a dollop of "God will fix it." But his rulings are like wiring inspections from an arsonist — America has thrived despite being incredibly racist to the core, so what does he care if the whole thing burns?

"Yes, the status quo is that states may use total population when designing legislative districts. This case was an attempt to get the court to rule that states could not do this. This attempt failed. What's not to be happy about?"

This was an attempt to get the court to rule that the states could not use total population, but what's not to be happy about is the court saying, "You can, but you don't have to."
posted by klangklangston at 6:49 PM on April 4, 2016 [4 favorites]

Such malapportionment was a major piece of the Jim Crow apartheid system. To Thomas, this isn’t an issue. Many of the framers of the Constitution “viewed antidemocratic checks as indispensable to republican government,” Thomas asserted. “And included among the antidemocratic checks were legislatures that deviated from perfect equality of representation.”

Fuck you, Thomas. Just because it's antidemocratic doesn't imply it's also a check. Sometimes A lot of times it's people being giant assholes.

Well, he is right. That's precisely what the Founders did, and the justification they gave. They just disagreed with you (and had disagreements among themselves as well) where precisely the line between "indispensable checks" and "giant assholes" lay (fine with unrepresentative legislatures, not fine with royalty or lifetime terms for the executive, etc.). Most people today aren't particularly interested in the direct election of Supreme Court justices, whose appointee status and lifetime terms are arguably antidemocratic. This is a longstanding debate in American politics.

U.S. Constitutional law isn't my thing, but wouldn't the total population principle be rather implicit? The infamous three-fifths rule would have no purpose otherwise, as slaves sure as hell weren't voters..?

Yeah, and at the time of the Constitution a majority of even the white male residents weren't able to vote in a bunch of states (property requirements) - hypocritical, but from the point of a narrow governing elite an ideal situation: you get a number of representatives in the House that corresponds to your population, but only you and the small sliver of the population who can vote gets to decide who those representatives are. Which is precisely why the three fifths rule became such a bone in the craw of many northerners who otherwise weren't particularly bothered by slavery - it was bullshit, and after the last of the old property requirements fell it was a unique bit of bullshit, rather than just one of several ways state- and regional-level elites found to fuck with the principle of "one man, one vote".
posted by AdamCSnider at 8:23 PM on April 4, 2016 [2 favorites]

I'd love to hear Thomas' opinion on the three-fifths clause.
posted by C'est la D.C. at 3:13 PM on April 4

The 3/5ths compromise was such a mess of hypocritical bullshit that it still makes me furious to this day.

Look, slave "owning" assholes, your slaves are either property or not. You want them classified as property? Fine. (Actually not, of course) But you can't have it both ways. You do not get any credit, let alone 3/5ths credit, for your "property." If you want those slaves to be considered property, then they are, by definition, I think, not citizens, let alone voters. Do you want your other property possessions such as, say, your furniture to have representation?

And we're STILL dealing with this mentality to this day. It infuriates me.
posted by InsertNiftyNameHere at 9:56 PM on April 4, 2016 [1 favorite]

Not to defend the ethics of the three-fifths compromise, but in an important respect it was wonderful: it got us independence. It was a crazy piece of awful nonsense that in many ways kicked a political can down the road, but it worked.

I’ve discovered in discussions on MetaFilter (and elsewehere) that there are legal and social constructions that I consider to be static but are in reality constructions of convenience - sometimes for the better, and sometimes for the worse. The three-fifths compromise is a great reminder about that. It’s totally fake! But then, so is the rest of our system. And that means we can keep on fixing, and fixing, and fixing it.
posted by Going To Maine at 10:29 PM on April 4, 2016

It’s totally fake! But then, so is the rest of our system. And that means we can keep on fixing, and fixing, and fixing it.
posted by Going To Maine

I'm not reading you very well, sorry. If our system is fake (which I believe it is), what can we hope to do to correct this problem, if anything? Are you saying our efforts are futile? If so, that's some really depressing shit.
posted by InsertNiftyNameHere at 10:55 PM on April 4, 2016

Oh no, the opposite. I’m saying that the law is artificial, and therefore moldable. We started out with the best we could at the time, and we as a society can keep pushing forward. I’ve commented it before, but Ruth Bader-Ginsburg once wrote in a decision that “[a] prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.” And that’s what we do. We rewrite and we amend and we fix in an ongoing quest for a more perfect union.
posted by Going To Maine at 11:04 PM on April 4, 2016 [2 favorites]

If you want those slaves to be considered property, then they are, by definition, I think, not citizens, let alone voters.

At the time it was totally unremarkable that people would be unable to vote. According to Wikipedia, in the early history of the US only 6% of people had suffrage! For my part I think that everybody should have the right to vote, with, perhaps, infant children's votes being exercised on their behalf by their parents or guardians. Apart from that, I think the present system would be improved by the votes of teenagers, felons, long-term residents - everyone with a local interest in the process of government.
posted by Joe in Australia at 11:09 PM on April 4, 2016 [1 favorite]

As far as representation goes, I remember an old episode of Decode DC that talked about how the formula for the House of Representatives keeps getting changed to keep the current number. If you go by the older formulas, there would be more than a thousand members, with many cities having multiple representatives.
posted by fifteen schnitzengruben is my limit at 11:56 PM on April 4, 2016 [2 favorites]

As far as representation goes, I remember an old episode of Decode DC that talked about how the formula for the House of Representatives keeps getting changed to keep the current number. If you go by the older formulas, there would be more than a thousand members, with many cities having multiple representatives.
posted by fifteen schnitzengruben is my limit at 1:56 AM on April 5

Yeah, that shit pisses me off as well. The rules were set out. Can we please abide by them? You need to expand the building(s)? Take a little pinch from the fucking military budget, but give us the representation we were set out to have.
posted by InsertNiftyNameHere at 12:09 AM on April 5, 2016 [3 favorites]

zachlipton: "What system is there to figure out how many eligible voters there are in a particular area?"

In Denmark, for instance, this is solved by keeping track of who lives where. Controversial, I know.
posted by brokkr at 3:42 AM on April 5, 2016

In Denmark, for instance, this is solved by keeping track of who lives where. Controversial, I know.

Also easier with 5 million people than with 350 million.
posted by nat at 5:36 AM on April 5, 2016

Well, it scales. You simply need to register people, which I gather - for reasons I've never completely understood - is anathema to Americans.

The Germans can do it as well, as attested by the fact that my wife and I receive ballots for municipal elections (where all residents are eligible to vote) but not for federal elections (where you have to be a German citizen). We're 80-some million people here.
posted by brokkr at 6:04 AM on April 5, 2016

Yeah, that shit pisses me off as well. The rules were set out. Can we please abide by them? You need to expand the building(s)? Take a little pinch from the fucking military budget, but give us the representation we were set out to have.

The rules are being abided by:

The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

There's a minimum level of representation (1:30,000, no less than one per state) and an initial proportion layour that is explicitly only effective until the first Census. After that, Congress gets to make the decision as to how many Representatives there will be. They've settled on 435 (plus six non-voting members), and that is entirely within the letter and spirir of the law.
posted by Etrigan at 6:18 AM on April 5, 2016 [1 favorite]

one of the things that explains a lot with Thomas is to realize that he's not a conservative, he's a nihilist. He sees things like the three-fifths clause as horrible but indicative of the framer's intent — he believes that the intention was to build a racist, anti-democratic system. And in a lot of ways, he's right.

I recall being really struck by that same article. Whereas most originalists would argue that the constitution was great as it was. Thomas's originalism is actually aligned with black nationalism's structural critique (e.g. slavery wasn't an aberration, it was a cornerstone of the system). His argument, in agreement with the revolutionaries, is that trying to get justice from an unjust document is a fools errand but unlike them he opposes overthrowing the system.
posted by Octaviuz at 6:35 AM on April 5, 2016 [1 favorite]

InsertNiftyNameHere I don't mean to put words in Going to Maine's mouth but another way of saying what I think he meant is that the laws that govern us are socially constructed. I see a tendency among people discussing politics (less here, but in general) to treat the US Constitution or other foundational legal documents as sacred and immutable, but in reality they're just codifications of the best consensus/compromise those in power at the time could come up with. If we can do better, we should. I definitely fall on the "it should be much easier to amend the Constitution" side of things but I guess that's a whole other discussion.
posted by Wretch729 at 6:43 AM on April 5, 2016

"At the time it was totally unremarkable that people would be unable to vote. According to Wikipedia, in the early history of the US only 6% of people had suffrage! For my part I think that everybody should have the right to vote, with, perhaps, infant children's votes being exercised on their behalf by their parents or guardians. Apart from that, I think the present system would be improved by the votes of teenagers, felons, long-term residents - everyone with a local interest in the process of government."

Meh. I mean, this is one of those things where I have really mixed feelings, since I think that authority derives from the consent of the governed, but also that simply having more voters doesn't ensure a better outcome and that the notion of an engaged, well-educated polity doesn't really scale the way that people hoped it would. Throughout history, there have been substantial critiques of popular democracy that are pretty much right — it does often devolve into a mob (cf. Trump). But the problem is that every solution to this problem has involved a hand-waving/underpants gnome of how to allocate power — the "philosopher king" is pretty much the best possible answer, except that it's functionally impossible to identify a philosopher king; relying on the "general will" is great — if you were able to discern immediately what the general will was. (It breaks down even further if you look at a lot of the justifications for democracy outside of consent of the governed — utilitarianism is pretty solid in broad strokes until you get down to how you actually decide what makes more people happy/suffer less.)

I'm running for a neighborhood office with notoriously low turnout, so this has been on my mind recently — we just had a candidates workshop and I didn't want to be the one saying "How do we even know we'd be representing the neighborhood if last election's winner got in with just over 20 votes out of 40,000 eligible?"
posted by klangklangston at 9:29 AM on April 5, 2016

The Germans can do it as well, as attested by the fact that my wife and I receive ballots for municipal elections (where all residents are eligible to vote) but not for federal elections (where you have to be a German citizen). We're 80-some million people here.

Yes, we're perfectly fine with registering voters. But the proposal here is to draw districts based on equal representation of eligible voters, not registered voters. Many people may be eligible to vote but not registered, and some may be eligible to vote in more than one place (e.g. college students away from home), but can only be legally registered in one place at a time. There's no central database of any of this.

Creating an entire new citizen registration system just so Republicans can dilute urban voters' votes would be incredibly impractical and would get all the crazies up in arms (literally) about getting put on lists so they can be rounded up and sent to "FEMA camps" or something.
posted by zachlipton at 9:49 AM on April 5, 2016

Yeah, that shit pisses me off as well. The rules were set out. Can we please abide by them? You need to expand the building(s)? Take a little pinch from the fucking military budget, but give us the representation we were set out to have.

If you think your Congress is deadlocked now, just imagine what it would be with a thousand representatives. Not one thing would get done.

Creating an entire new citizen registration system just so Republicans can dilute urban voters' votes would be incredibly impractical and would get all the crazies up in arms (literally) about getting put on lists so they can be rounded up and sent to "FEMA camps" or something.

Well, fuck the wild-eyed anti-knowledge people, really. Up here, it's really simple. I tick a box on my income tax form (yeah, I know, the WEAK (ha! accidental I promise) people freak out about income tax too, which is yet another reason to ignore their stupidity), and the Canada Revenue Agency shares my name/address (and nothing else) with Elections Canada. Then again, you'd also need to create 51 (1 Federal + 50 state) nonpartisan agencies whose sole job is running elections and determining district boundaries.
posted by feckless fecal fear mongering at 11:16 AM on April 5, 2016

Then again, you'd also need to create 51 (1 Federal + 50 state) nonpartisan agencies whose sole job is running elections and determining district boundaries.

In most states there already is such an office, the Secretary of State (not to be confused with the Federal SOS, who oversees diplomacy)... they're just unfortunately not nonpartisan.
posted by psoas at 2:06 PM on April 5, 2016

I don't know how it works in Canada, but in the US not everyone is required to file an income tax form (if your income is under a certain amount, for a single person thats around $10k). I mean, we could change that too, but income tax forms are kind of a mess here and I wouldn't really want to force people to file them just to get representation.
posted by thefoxgod at 5:43 PM on April 5, 2016

You can also register quite easily on voting day by showing up with proof of your address. Or swear an oath as to your identity and address. The CRA->EC pipeline just makes the process frictionless for anyone who wished to use it.
posted by feckless fecal fear mongering at 5:51 PM on April 5, 2016

Not to get too much into a Canada/US derail on this, but:
-not everyone in Canada has to file a return, and not everyone who is supposed to does;
-the decision to share your name and address with Elections Canada is an optional question on the form, implemented as a way to try to make life a little easier for voters and Elections Canada & the provincial election authorities;
-you can register directly with Elections Canada/provincial authorities if you prefer or you moved or whatever might mean you don't get your voter card when an election is coming;
-you can also register and vote at the polling station on Election Day.

The database is primarily for getting people the information they need to make voting day easier, not about apportioning ridings though. If you want something for the second purpose, the relationship to it would fundamentally change from something voluntary (I could move right now and never give my information again, and Elections Canada would have no clue which riding I was in) to something everyone has to be in and update as a cumplusory thing. Which really raises a lot of questions.
posted by nubs at 6:19 PM on April 5, 2016

Ridings are delineated by Elections Canada based on census data.
posted by feckless fecal fear mongering at 6:22 PM on April 5, 2016

Yes, based on population. If the question at hand becomes doing so on eligible voters (which is what I thought the question in the thread was, how you might go about doing that) the Election Canada database of registered voters becomes a tool that would require some different management, is my point.
posted by nubs at 6:44 PM on April 5, 2016 [1 favorite]

Yeah, neither the income tax thing nor registering to vote on voting day solves the "how many eligible voters" are there question. Its not about registered voters, actual voters, or population, but eligible voters.

Still looks like Texas may try this, so I guess we'll see what they use.
posted by thefoxgod at 7:22 PM on April 5, 2016

I'd be intrigued to see how you craft something that tracks eligible voters as they move, change districts, change status, etc. Without some level of mandatory updating (like you do with a driver's license), I'm not sure how it is possible...
posted by nubs at 7:53 PM on April 5, 2016

The voting people could talk to any college about how they keep track of alumni to hit them up for donations. They WILL find you.
posted by fifteen schnitzengruben is my limit at 7:57 PM on April 5, 2016 [2 favorites]

Thomas is the new Taney. JFC.
posted by symbioid at 8:05 PM on April 5, 2016

I'd be intrigued to see how you craft something that tracks eligible voters as they move, change districts, change status, etc

Well you don't need to track them, you just need a way to count them as a snapshot every 10 years, like the census does for population. Still difficult, but much more manageable. Something in-between the census and the American Community Survey, that captures the various points required for eligibility.
posted by thefoxgod at 8:36 PM on April 5, 2016