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Supreme Court mulls representation in ‘one person, one vote’ case

Who should be counted when states divvy up their territory for representation: all residents or only those who can vote? The Supreme Court heard arguments on Tuesday involving the very nuts and bolts of how American democracy works. Marcia Coyle of The National Law Journal joins Gwen Ifill to discuss the case.

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  • GWEN IFILL:

    But first to the Supreme Court, where justices today heard one of the most important cases of this term involving the very nuts and bolts of how our democracy works, at issue, who gets counted when states have to divvy up their territory into state house and state senate districts, everyone who lives there, or just those who are eligible to vote?

    Marcia Coyle of "The National Law Journal" was in the courtroom today, as always, and she's here now to tell us more.

    We're talking about equal representation. We always assume that somehow one man, one woman, one vote is the rule. How did this get to the court?

  • MARCIA COYLE, The National Law Journal:

    Well, as Justice Breyer I think pointed out in the arguments today, this case really raises the fundamental question of, what kind of democracy do we want? Do we want a democracy in which everyone who is here is represented, or do we want a democracy in which only those who have the right to participate in the democratic process through the vote are represented?

    The Equal Protection Clause of the 14th Amendment, the court has held, includes the principle one person, one vote. And that principle, the court has said, requires states to draw legislative districts of substantially equal population. But the court has never said — and this principle goes back to the 1960s — the court has never said what population counts.

    The case that the court heard today takes issue with what all 50 states have been doing for basically half-a-century, using total population. The two Texas voters who brought the challenge to the Supreme Court claim that one person, one vote really requires states to draw districts on the basis of the eligibility of voters, of the voting population, eligible voting population.

  • GWEN IFILL:

    So, if you're — the way it works now, if you're someone who just doesn't like to vote or you're a child under the age of 18, someone who is not qualified to vote, you're counted as — for the representational purposes?

  • MARCIA COYLE:

    That is correct. Under total population, you are counted.

    And, today, the justices examined both the theory, the meaning of one person, one vote, as well as the practical consequences of a shift from what the states have been doing for half-a-century to just using voter eligible population.

  • GWEN IFILL:

    What are the practical consequences? Who's affected?

  • MARCIA COYLE:

    Well, that was a question that Justice Breyer asked towards the end of the arguments. He said, who's left out, basically?

    And the lawyer for the voters who are challenging this said, children, non-citizens who are here legally, undocumented aliens and disenfranchised felons. But he also told Justice Breyer, if this is a concern, the state can address it by giving them the right to vote.

    On the constitutional side…

  • GWEN IFILL:

    Giving children the right to vote, giving…

  • MARCIA COYLE:

    Giving all those categories who are left out the right to vote.

    Some of the justices explored more deeply the meaning of one person, one vote. Justice Sotomayor, for example, said, well, if you go with the theory of only voter eligible populations, you are ignoring the dual interests under this principle. It's not only the voter — voting interests. It's the representational interests, and we have given states discretion to make this choice.

    Justice Kagan said, I think the framers of the 14th Amendment really addressed this. The sponsor of the amendment said numbers, not voters, numbers, not property, that is the theory of the Constitution.

    She said she couldn't wrap her mind around the other argument when she felt that the framers addressed it. She also noted at one point that the Constitution explicitly says you use total population when you apportion the U.S. House of Representatives.

  • GWEN IFILL:

    Right.

  • MARCIA COYLE:

    So why would the Constitution require total population for that, but forbid it for use of state legislative redistricting?

  • GWEN IFILL:

    So, if you are — the civil rights groups have said this is a civil rights issue.

  • MARCIA COYLE:

    Yes.

  • GWEN IFILL:

    And that's how it's playing out. Is that the way it pretty much broke down in the court arguments today?

  • MARCIA COYLE:

    There really wasn't much about the politics.

    This case is at the intersection of the Constitution and politics, but it's very clear and everyone on both sides pretty would much agree that if you use voter eligible population to draw your districts, you're going to see a shift from — you will see seats moving from the urban areas, where you have greater population that tend to vote Democratic, to less populated rural areas that tend to vote Republican.

    So that's the politics end of it. Also, at least in Texas and a few other states, the population that would probably feel the impact of this most negatively would be your Latino population, which is closer to the cities and has larger families with more children.

  • GWEN IFILL:

    I want you to tell me quickly. I'm always curious how these cases that we think are settled end up at the court. How did this one do there — end up there?

  • MARCIA COYLE:

    This is interesting.

    There are two voters who brought the challenge, but behind these two voters is really one man, Edward Blum, who runs the Project on Fair Representation, whose goal is to end just about all racial and ethnic classifications. He is behind the case we may discuss tomorrow on affirmative action in universities.

  • GWEN IFILL:

    So, we have seen him before, and we will see him again.

  • MARCIA COYLE:

    Yes, I think so.

  • GWEN IFILL:

    Marcia Coyle of "The National Law Journal," thank you.

  • MARCIA COYLE:

    My pleasure, Gwen.

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