Weightless votes

Yale Law Journal

Volumn 121, Issue 7, 2012, Pages 1888-1910

  Fishkin, Joseph ^a  

^a UNIVERSITY OF TEXAS SCHOOL OF LAW   (United States)

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EID: 84860604908     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (205)

1. Colegrove v. Green, 328 U.S. 549, 556 (1946) (plurality opinion)
2. see Baker v. Carr, 369 U.S. 186, 209-10 (1962).
3. See Lepak v. City of Irving, No. 3:10-CV-0277-P, 2011 WL 554155, at *1 (N.D. Tex. Feb. 11, 2011), aff'd No. 11-10194, 2011 WL 6217946 (5th Cir. Dec. 14, 2011).
4. see also infra note 59 (discussing Louisiana's challenge to the U.S. Census on related grounds).
5. See Burns v. Richardson, 384 U.S. 73, 91 (1966)
6. "We start with the proposition that the Equal Protection Clause does not require the States to use total population figures. ".
7. Garza v. Cnty. of L.A., 918 F.2d 763, 773-74 (9th Cir. 1990)
8. holding that equal total population may be used, notwithstanding unequal numbers of eligible voters.
9. see also Chen v. City of Houston, 532 U.S. 1046, 1047 (2001)
10. (Thomas, J., dissenting from denial of certiorari) ("We have never determined the relevant 'population' that States and localities must equally distribute among their districts.").
11. See, e.g., Sanford Levinson, One Person, One Vote: A Mantra in Need of Meaning, 80 N.C. L. REV. 1269, 1281 (2002)
12. "[T]he United States currently seems to operate under a system in which any given representative should have (roughly) the same number of constituents as any other representative.".
13. Proponents of citizen voting age population (CVAP) argue that it can serve as a proxy, albeit an imperfect one, for eligible voters, since the vast majority of those ineligible to vote are either minors or noncitizens.
14. See, e.g., Brief Amicus Curiae of Edward Chen and the Project on Fair Representation in Support of Appellants at 11-17.
15. Perry v. Perez, No. SA-11-CV- 788, 2011 WL 5904716 (W.D. Tex. Nov. 25, 2011), vacated, 132 S. Ct. 934 (2012)
16. arguing, as amicus in a lawsuit challenging interim statewide maps adopted by a federal court in Texas, that one person, one vote ought to protect "eligible voters" and that CVAP would be the best way to do this.
17. See Heather K. Gerken, The Costs and Causes of Minimalism in Voting Cases: Baker v. Carr and Its Progeny, 80 N.C. L. REV. 1411, 1414-15 (2002)
18. discussing the Court's refusal to articulate any larger theory of what the one person, one vote cases are about.
19. Reynolds v. Sims, 377 U.S. 533, 555 (1964) (emphasis added).
20. 376 U.S. 1 (1964).
21. U.S. CONST. art. I, § 2, cl. 1.
22. Wesberry, 376 U.S. at 7-8.
23. Id. at 8.
24. See also Colegrove v. Green, 328 U.S. at 570 (Black, J., dissenting)
25. arguing that "the constitutionally guaranteed right to vote, and the right to have one's vote counted clearly imply the policy that state election systems. should be designed to give approximately equal weight to each vote cast".
26. U.S. CONST. art. IV, § 4
27. see Baker v. Carr, 369 U.S. 186, 209-10 (1962)
28. holding that challenges to districting plans are justiciable under the Equal Protection Clause, not the Guaranty Clause.
29. See Pamela S. Karlan, Politics by Other Means, 85 VA. L. REV. 1697, 1716 (1999)
30. discussing the Court's "resolutely individualistic" approach.
31. Michael McConnell argues that this choice was a mistake: instead of relying on an individualistic reading of the Equal Protection Clause, the Court should have read the Guaranty Clause-which guarantees each state a republican form of government-to prohibit malapportionment so egregious that it thwarts majoritarian government.
32. Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences, 24 HARV. J.L. & PUB. POL'Y 103, 106-07, 114 (2000).
33. But at the time of Baker, the Court had reason to proceed the way it did.
34. See Samuel Issacharoff & Richard H. Pildes, Not by "Election Law" Alone, 32 LOY. L.A. L. REV. 1173, 1180 (1999)
35. arguing that the Court adopted the individual rights approach "to break the restraints of the political question doctrine that had long kept the issues of democratic design outside of the constitutional law arena," but that this approach "locked into place conceptual tools that soon proved insufficient".
36. Joseph Fishkin, Equal Citizenship and the Individual Right To Vote, 86 IND. L.J. 1289 (2011).
37. John F. Banzhaf III, Weighted Voting Doesn't Work: A Mathematical Analysis, 19 RUTGERS L. REV. 317 (1965).
38. This literature goes back even further, to L. S. Penrose, The Elementary Statistics of Majority Voting, 109 J. ROYAL STAT. SOC. 53 (1946).
39. For a critical survey of this literature, see sources cited infra note 20.
40. See infra notes 22 and 34 and accompanying text.
41. See Jonathan W. Still, Political Equality and Election Systems, 91 ETHICS 375, 380-82 (1981).
42. See Andrew Gelman, Jonathan N. Katz & Joseph Bafumi, Standard Voting Power Indexes Do Not Work: An Empirical Analysis, 34 BRIT. J. POL. SCI. 657 (2004)
43. explaining why the coin-flip approach that characterizes measures such as the Banzhaf index fails in certain systematic ways to deliver accurate estimates of the probability of a decisive vote.
44. Nathaniel Persily, Thad Kousser & Patrick Egan, The Complicated Impact of One Person, One Vote on Political Competition and Representation, 80 N.C. L. REV. 1299, 1313 (2002)
45. "Only if we control for all other political variables does population size become the dispositive factor. Once the model becomes more complex and realistic, it falls apart. ".
46. see also Andrew Gelman, Jonathan N. Katz & Francis Tuerlinckx, The Mathematics and Statistics of Voting Power, 17 STAT. SCI. 420, 424-32 (2002)
47. discussing a variety of empirically-driven models that provide more accurate estimates of the probability of a decisive vote than the Banzhaf coin-flip approach.
48. Indeed, this strategic fact was obvious enough to ordinary observers that it led some Gore voters in safe states (of all sizes) to offer to "trade" votes with would-be Nader voters in swing states like Florida.
49. See, e.g., Lynda Gledhill, California Shuts Down Vote-Trader Web Site, S.F. CHRON., Oct. 31, 2000, http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2000/10/31/MN119607.DTL
50. see also Jamin Raskin, Nader's Traders, SLATE, Oct. 25, 2000, http://www.slate.com/id/91933 (suggesting a Gore-Nader vote-swapping plan).
51. This is part of why the Court originally rejected the Banzhaf index.
52. See Whitcomb v. Chavis, 403 U.S. 124, 145-46 (1971)
53. explaining, in the context of racial vote dilution, that the Banzhaf index fails to account for factors such as voters' partisan leanings.
54. RICHARD TUCK, FREE RIDING 44 (2008)
55. "If, say, in an election 10,000 votes were cast for Candidate A and 3,999 for Candidate B, the efficacious set must have consisted of 4,000 of the 10,000 votes cast for A, and there is therefore a 2 in 5 chance that our ballot [for A] was part of it.".
56. In a squeaker, as the margin of victory approaches zero, the chance of your vote for the winner being within the efficacious set approaches 100%.
57. See Persily et al., supra note 20, at 1313
58. noting that equal probabilistic weight "would require that each district be equally competitive".
59. Davis v. Bandemer, 478 U.S. 109, 132 (1986)
60. "An individual or a group of individuals who votes for a losing candidate is usually deemed to be adequately represented by the winning candidate and to have as much opportunity to influence that candidate as other voters in the district.".
61. It is a normative statement about representation, not an empirical claim: its empirical truth or falsity does not matter.
62. See Frederick Schauer, Legal Fictions Revisited, 9 (Univ. of Va. Sch. of Law, Pub. Law & Legal Theory Research Paper Series No. 2011-29, 2011), available at http://ssrn.com/abstract=1923314 (discussing "afactual" legal fictions).
63. Of course, when a representative aims to maximize both her own chances of reelection and the number of seats her party will win, she will not try to jettison all the opposition voters. Instead she will aim to represent just enough of them that they pose no realistic threat to her reelection chances. In this case, far from wanting such voters to be part of her own political coalition, her aim in representing them is to ensure that they do not become part of any winning political coalition, in her district or elsewhere.
64. Cf. Still, supra note 19, at 378-80
65. discussing an "equal shares" conception of political equality.
66. This problem also affects the probabilistic weight of a vote.
67. See T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 MICH. L. REV. 588, 601 (1993)
68. inventing and deploying this evocative term in the racial gerrymandering context.
69. One might also understand this last kind of "weight" as having an expressive dimension. By enforcing one person, one vote, the state is endorsing a certain form of political equality- whether of persons or of citizens-that does not depend on who actually casts ballots.
70. 489 U.S. 688, 698 (1989).
71. But see Garza v. Cnty. of L.A., 918 F.2d 763, 782 (9th Cir. 1990)
72. (Kozinski, J., concurring in part and dissenting in part) (apparently reading this passage from Morris in precisely the opposite way, as an affirmation that the Court was talking about individuals rather than groups).
73. See Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 HARV. L. REV. 1663, 1666-67 (2001)
74. arguing that although individuals bring racial vote dilution cases, these and other "aggregate rights" claims turn on group-based conceptions of equality.
75. Davis v. Bandemer, 478 U.S. 109, 167 (1986)
76. (Powell, J., concurring in part and dissenting in part). Justice Powell goes on to acknowledge the individual "weight" idea but strongly suggests that, by itself, it does not do the work.
77. "While population disparities do dilute the weight of individual votes," he writes, "their discriminatory effect is felt only when those individual votes are combined.".
78. See Fishkin, supra note 16, at 1332-36.
79. One need not, but one could: groups also have interests in preventing their members' disenfranchisement.
80. Conceptually, one need not define numerical groups in geographic terms. A different kind of numerical group might consist of a widely dispersed collection of people who share some politically relevant thing in common.
81. Protecting such a group's political interests might require voting schemes other than the single-member district and tools other than the one person, one vote rule. However, in the one person, one vote context that is our subject here, the numerical groups that matter are those defined in geographic terms.
82. The one person, one vote cases often recur to the principle of "equal representation for equal numbers of people.".
83. Wesberry v. Sanders, 376 U.S. 1, 18 (1964).
84. At least in the context of geographically defined districts, that principle means equal representation for numerical groups as I have just defined them.
85. Yet courts in the one person, one vote cases tend to make such arguments alongside, and sometimes even in the same breath as, arguments about the weight of votes that sound in a much more individualistic register.
86. See, e.g., Kirkpatrick v. Preisler, 394 U.S. 526, 530-33 (1969)
87. repeatedly invoking "the constitutional command to provide equal representation for equal numbers of people," but also stating at one point that this very principle is "designed to prevent debasement of voting power and diminution of access to elected representatives".
88. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006)
89. Vieth v. Jubelirer, 541 U.S. 267 (2004)
90. Davis, 478 U.S. 109.
91. For instance, although all three forms of vote dilution involve claims by individual voters, all these claims are resolved by evaluating the interests of the relevant group.
92. See Gerken, supra note 37, at 1681-89.
93. See, e.g., Thornburg v. Gingles, 478 U.S. 30, 56 (1986)
94. explaining that an inquiry into racially polarized voting is necessary "to ascertain whether minority group members constitute a politically cohesive unit and to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidates".
95. See, e.g., Lani Guinier, The Representation of Minority Interests: The Question of Single-Member Districts, 14 CARDOZO L. REV. 1135, 1135 (1993)
96. discussing, and decrying, "the particular bias toward winner-take-all single-member electoral districts common in the United States".
97. See, e.g., 2 U.S.C. § 2c (requiring single-member districts for Congress).
98. See BRUCE CAIN, JOHN FEREJOHN & MORRIS FIORINA, THE PERSONAL VOTE: CONSTITUENCY SERVICE AND ELECTORAL INDEPENDENCE (1987)
99. arguing that legislators, especially in the United States, devote substantial effort to advancing local "allocative" interests-pork-and helping individual constituents.
100. Cain, Ferejohn, and Fiorina argue that single-member districts in which the voters choose among individual candidates for specific offices by name, as in the United States, produce the strongest incentives for constituency service and electoral independence-that is, for candidates and elected officials to side with local interests over party.
101. See id. at 214-24.
102. This effect is compounded by an unusual feature of the American system: U.S. voters separately elect many different officeholders, multiplying their opportunities to split their tickets, choosing different parties' candidates for different offices.
103. See id. at 214.
104. Richard Briffault, Bush v. Gore as an Equal Protection Case, 29 FLA. ST. U. L. REV. 325, 362 (2001)
105. arguing that the reapportionment revolution began with claims of "geographic discrimination", or "the problem of state laws favoring voters in some areas over voters in other areas".
106. Gerken, supra note 7, at 1422 n.38
107. "[T]hese cases were originally litigated as traditional equal protection claims based on the assumption that these two groups had different interests.".
108. see, e.g., Swann v. Adams, 385 U.S. 440, 446 (1967)
109. "[B]esides unequally populated legislative districts. [a]ppellants also claim that the legislative plan discriminates invidiously by underrepresenting the populous urban counties and by overrepresenting the sparsely settled rural counties. ".
110. W.M.C.A., Inc. v. Simon, 370 U.S. 190, 191 (1962)
111. (per curiam) (remanding a claim of "invidiously discriminatory geographic classification").
112. Baker v. Carr, 369 U.S. 186, 273 (1962)
113. (Frankfurter, J., dissenting) (quoting the complaint as challenging a "purposeful and systematic plan to discriminate against a geographical class of persons").
114. Cf. James A. Gardner, Liberty, Community and the Constitutional Structure of Political Influence: A Reconsideration of the Right To Vote, 145 U. PA. L. REV. 893, 921 (1997)
115. describing Wesberry and Reynolds as "a kind of Gomillion for urbanites".
116. Lani Guinier & Pamela S. Karlan, The Majoritarian Difficulty: One Person, One Vote, in REASON AND PASSION: JUSTICE BRENNAN'S ENDURING INFLUENCE 207, 219 (E. Joshua Rosenkranz & Bernard Schwartz eds., 1997)
117. noting that because malapportionment "stymied the interests of voters in the burgeoning cities and suburbs" in favor of "extremist politicians from underpopulated and disenfranchised 'Black Belt' regions [of the South who] were at the forefront of massive resistance, much of the Supreme Court's workload was an indirect consequence of malapportionment's hold on state political processes".
118. Md. Comm. for Fair Representation v. Tawes, 377 U.S. 656, 674 n.19 (1964).
119. The Court in Tawes invokes this "strangle hold" language almost in passing. As a descriptive matter this observation was so obviously true as to be unremarkable.
120. The "strangle hold" language also underscores a related point: the gross malapportionment that preceded one person, one vote did not just privilege some numerical groups over others, but also locked those group-based inequalities into place, creating a "lockup" of the democratic process.
121. See Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643, 668-70 (1998).
122. See Thornburg v. Gingles, 478 U.S. 30, 36-37 (1986)
123. citing a set of factors probative of a violation under section 2 of the Voting Rights Act.
124. Cf. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 121 (1980)
125. "[A]dministrability is its long suit, and the more troublesome question is what else it has to recommend it.".
126. This is the flip side of an important criticism of one person, one vote: that the doctrine thwarts regional government by preventing the formation of regional bodies on which each locality has a distinct and perhaps equal voice, notwithstanding differences of population.
127. See Richard Briffault, Who Rules at Home?: One Person/One Vote and Local Governments, 60 U. CHI. L. REV. 339, 401-19 (1993).
128. For better and worse, one person, one vote treats numerical groups that happen to straddle or crisscross the borders of localities as no more or less entitled to representation than numerical groups whose edges match those local borders.
129. Cf. Chad Flanders, How To Think About Voter Fraud (And Why), 41 CREIGHTON L. REV. 93, 115 (2008)
130. arguing that to decide what counts as vote dilution, "we need a theory of which groups matter".
131. The concept of virtual representation has played a number of roles in American political life, from the colonists' supposed representation in the British Parliament to the longstanding virtual representation of women and children by male heads of household.
132. For our purposes here, we can define virtual representation simply as the state of being counted as a constituent yet not enfranchised as a voter.
133. In the case of incarcerated felons, the crucial question is how to define the community that is to virtually represent them. The argument from the priority of the local, sketched above, provides some reasons why we might believe felons' own communities, rather than their places of incarceration, might make for a more plausible form of virtual representation.
134. See supra text accompanying notes 45-47.
135. In addition, counting felons in their places of incarceration, rather than in their own communities, gives politicians more power to manipulate the population of districts by building, expanding, or closing prisons in those districts.
136. See infra notes 63-64 and accompanying text.
137. But these are arguments for another day.
138. Garza v. Cnty. of L.A., 918 F.2d 763, 774 (9th Cir. 1990).
139. See Levinson, supra note 5, at 1285
140. "Interestingly enough, the [Garza] court did not include in its originalist litany perhaps the best example for its point-the Three-Fifths Clause.".
141. U.S. CONST. amend. XIV, § 2
142. "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.".
143. This appears to be the only operative part of Section 2 of the Fourteenth Amendment, the rest of the Section having never been enforced. The "whole number of persons in each State" language seems an awfully clear example of the "Constitution of Settlement"-one of those parts of the Constitution that lays down a rule that structures our politics rather than offering an invitation to conversation and interpretation.
144. See SANFORD LEVINSON, FRAMED: AMERICA'S FIFTY-ONE CONSTITUTIONS AND THE CRISIS OF GOVERNANCE 17-27 (2012)
145. contrasting the "Constitution of Settlement" with the "Constitution of Conversation," the open-textured clauses that generate legal conversation and argument.
146. However, this language did not stop the State of Louisiana from filing a remarkable complaint in the Supreme Court of the United States in November 2011.
147. see Complaint, Louisiana v. Bryson, No. 220140 ORG (U.S. Nov. 14, 2011), available at http://sblog.s3.amazonaws.com/wp-content/uploads/2011/11/Louisiana_v_Bryson.pdf, attempting to unsettle the "whole number of persons" rule and exclude illegal immigrants from the census count.
148. Louisiana argued that both the Equal Protection Clause (citing Sims) and Article I, Section 2 (citing Wesberry) protect "the weight of a citizen's vote," and that therefore, it amounts to vote dilution to apportion congressional districts based on total population, including illegal immigrants, since districts then contain different numbers of "voters.".
149. Id. at 31-35.
150. The Court ultimately denied Louisiana's motion to file this complaint. Louisiana v. Bryson, _ S. Ct. _ (March 19, 2012).
151. The argument of this Essay provides some reasons to doubt whether disparities of this kind do any real constitutional work at all-let alone so much work that courts should unsettle a provision as clear as "the whole number of persons in each State.".
152. U.S. CONST. amend. XIV, § 2
153. see Kalson v. Paterson, 542 F.3d 281, 289 n.16 (2d Cir. 2008)
154. (Calabresi, J.) ("In light of the fact that Article I apportions seats between states based on total population and not on the basis of the number of voters, it would seem to follow that apportionment within a state must also be based on total population.").
155. Conversely, if within-state apportionment were to be based on CVAP, it would seem only fair to apportion representatives among states on the same basis and to redistribute to other states the extra representatives that states like Texas receive on account of persons who would no longer be counted as part of the basis of apportionment. However, squaring this result with constitutional text presents serious difficulties.
156. See supra note 59.
157. U.S. CONST. amend. XIV, § 1
158. see Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)
159. aliens are persons entitled to full protection of the Equal Protection Clause.
160. Garza, 918 F.2d at 775
161. aliens' equal protection rights include political rights, even if aliens cannot vote or hold certain offices.
162. See Burns v. Richardson, 384 U.S. 73, 92 (1966)
163. "Use of a registered voter or actual voter basis. [would be] susceptible to improper influences by which those in political power might be able to perpetuate underrepresentation. ".
164. For example, speeding up or slowing down the processing of applications for naturalization in advance of the census could have large effects.
165. See Adam B. Cox & Eric A. Posner, The Rights of Migrants: An Optimal Contract Framework, 84 N.Y.U. L. REV. 1403, 1450 n.149 (2009).
166. More generally, immigration law changes that affect the mix of legal statuses of newcomers, or of those already here, can have substantial effects-albeit after a significant delay-on the future citizen population.
167. See id. at 1447-53.
168. In certain cases, such as the large military base at issue in Burns v. Richardson, 384 U.S. 73, a government decision such as the choice to deploy or transfer troops may have large direct effects on census counts.
169. More generally, immigration policy affects total population figures, and myriad government policies have some impact on where people live or on the number of children born.
170. Debates about undercounts and sampling affect the census itself, as do debates about counting Americans overseas.
171. See Nathaniel Persily, The Law of the Census: How To Count, What To Count, Whom To Count, and Where To Count Them, 32 CARDOZO L. REV. 755, 783-86 (2011)
172. see also supra note 59
173. discussing Louisiana's challenge to the 2010 census.
174. Related to this problem of political manipulation is the problem of accuracy. As the Court has noted, "the census data provide the only reliable-albeit less than perfect-indication of the districts' 'real' relative population levels.".
175. Karcher v. Daggett, 462 U.S. 725, 738 (1983).
176. Mixing census data with other data in order to estimate variables that are not part of the census-especially citizenship-raises significant questions about data quality and overall accuracy.
177. See Persily, supra note 64, at 774-82.
178. See CITIZENS AGAINST GOV'T WASTE, 2006 CONGRESSIONAL PIG BOOK SUMMARY 47, http://www.cagw.org/assets/pig-book-files/2006/2006pigbooksummary.pdf.
179. In addition, children, aliens, and others sometimes seek assistance from their representatives.
180. Constituency service is truly an individual interest. It is not an interest in the "weight" of a vote, but it is an interest that one person, one vote helps equalize, assuming that the number of constituents affects the quality of service.
181. Thus, to this "equal pork" argument one might add a related "equal constituency service" argument.
182. See generally CAIN, FEREJOHN & FIORINA, supra note 47, at 50-76
183. arguing that legislators, especially in the United States, devote significant energies to helping individual constituents with their dealings with government.
184. Proponents of using CVAP in one person, one vote cases also make a different point: that racial vote dilution cases under the Voting Rights Act themselves commonly make use of CVAP, and so one person, one vote cases should as well.
185. See, e.g., Brief Amicus Curiae of Edward Chen and the Project on Fair Representation in Support of Appellants at 15-16.
186. Perry v. Perez, No. SA-11-CV-788, 2011 WL 5904716 (W.D. Tex. Nov. 25, 2011), vacated, 132 S. Ct. 934 (2012)
187. "[U]sing CVAP would harmonize the one-person, one-vote inquiry with the test for evaluating [racial] vote dilution claims under Section 2 of the VRA." (internal citations omitted).
188. CVAP is not the only possible starting point for racial vote dilution analysis and it may not be the best.
189. See Persily, supra note 64, at 781-82
190. arguing that VAP is a better starting point than CVAP because of the questionable accuracy of available citizenship data.
191. Nonetheless, racial vote dilution cases under the VRA commonly use CVAP in several contexts.
192. These include (a) determining which districts offer minority groups an opportunity to elect their candidates of choice, and similarly (b) the threshold inquiry under section 2 into whether any such district(s) can be drawn. In both of those contexts, CVAP is one step in a process of predicting the actual voters who are expected to turn out in a district and pick a winner, which we must predict in order to know which group, under polarized conditions, would have the opportunity to elect the candidates of its choice.
193. One person, one vote is different: it involves no such inquiries into which groups will win or lose, who will be in the majority and who in the minority, in any given district. Instead of imagining an electorate divided and polarized, one person, one vote works from the premise that each geographically defined group has some interests in common, and that those interests will be represented regardless of who votes.
194. Thus, the use of CVAP in racial vote dilution cases in these outcome-predicting contexts is no guide to the proper basis of representation for one person, one vote.
195. More problematic and interesting is the use of CVAP in yet a third Voting Rights Act context: judging "proportionality," or the relationship between a minority group's share of the districts and its share of the relevant population.
196. See Johnson v. De Grandy, 512 U.S. 997, 1013-16 (1994)
197. introducing proportionality, and basing a finding of proportionality on a baseline of voting age population.
198. Using CVAP to establish a baseline for a proportionality comparison seems in at least some tension with using total population as the basis of representation in one person, one vote cases.
199. The reasons for this difference, and whether it is justified for these two layers of the law to frame the problem of equal representation differently, are topics for another day.
200. See Grant M. Hayden, Resolving the Dilemma of Minority Representation, 92 CAL. L. REV. 1589, 1627 (2004)
201. "[L]egislatures and, if necessary, courts should be able to manipulate both the shape and the relative population of the district in order to strengthen minority political participation.".
202. Cf. Georgia v. Ashcroft, 539 U.S. 461, 495-97 (2003)
203. (Souter, J., dissenting) (noting that if section 5 protects majority-minority, coalition, and "influence" districts, with no rule for balancing these competing objectives, it creates no administrable constraint on jurisdictions' choices).
204. Cf. JOHN RAWLS, A THEORY OF JUSTICE 36-40 (rev. ed. 1999)
205. explaining, analogously, how a lexical ordering of moral principles allows a theory to avoid "intuitionistic" balancing.