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In the recently decided Benavidez v. City of Irving et al., the plaintiff challenged the at-large system of electing city council members in Irving, Texas, charging that it was racially discriminatory. Manuel Benavidez argued that Hispanics, although comprising more than 40 percent of Irving’s population, could not be elected to the city council because, among other reasons, whites voted as a bloc to defeat the candidate Hispanic voters preferred. Because of this, the lawsuit alleged, the only way Hispanics could ever win a city council seat was to scrap the current system for one that created single-member council districts—one of which would be drawn with carefully targeted boundaries so that it would likely elect a Hispanic.
Benavidez’s claims were based upon Section 2 of the Voting Rights Act, which, like the Constitution’s Fifteenth Amendment, prohibits election practices or procedures that discriminate on the basis of race and ethnicity. For the last two decades, most of the cases arising under Section 2 have been challenges to at-large voting districts like Irving’s. All told, the Department of Justice, as well as a handful of racial advocacy groups, has successfully brought dozens of these challenges to court in the last few years, especially as Hispanic immigration has surged in Florida, Texas, California, New York, and other states.
As some legal scholars have noted, voting is a zero-sum game; if the weight of one vote increases, the weight of another vote necessarily decreases.
In Benavidez, the plaintiff’s claims relied on Thornburg v. Gingles, a 1986 U.S. Supreme Court case that established a three-part test to determine if at-large systems like the one Irving used violate Section 2. According to Gingles, single-member districts must be created when, first, the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; second, the minority group votes as a cohesive bloc; and third, the white majority votes as a bloc to defeat the minority group’s preferred candidate.
One of Irving’s principal legal defenses was to claim that, while there were enough Hispanics to create a Hispanic-majority city council district, about 60 percent of those Hispanics were not citizens. This fact, the city asserted, meant the first Gingles test was not fulfilled and therefore, the current at-large system was legal.
This argument fell on deaf ears. After a four-day bench trial, the judge in Benavidez found all three Gingles factors present, so he enjoined the city from holding elections until a new system was put in place. With elections looming, Irving—now facing a $600,000 legal bill—moved to settle with the plaintiffs rather than appeal. City council elections using the new districts will take place this May.
Like Irving’s new city council districts, there are hundreds of voting districts throughout the country today that have an unfair balance between citizen and non-citizen populations.
In retrospect, the city’s decision to settle turned out to be a hasty mistake. Shortly after the agreement had been struck, in a nearly identical Section 2 case from Farmers Branch, Texas, the Fifth Circuit Court of Appeals held that courts must consider only the citizen voting-age population for the first Gingles test.
Today, through no fault of its own, the City of Irving is stuck with a new system of governance that is clearly flawed. Yet the story isn’t over. In fact, its intrigue has just begun. Here’s why.
A few days ago, 11 Irving residents filed a new lawsuit, Lepak v. City of Irving, challenging the constitutionality of the new single-member council plan. Interestingly, the lawsuit does not maintain that the city needs to undo the Benavidez settlement and reinstitute the old at-large system. Rather, the plaintiffs argue that the newly created District No. 1, the court-mandated “Hispanic” district, is unconstitutional because it does not comply with the Fourteenth Amendment’s long-held requirement of “one person, one vote.” District No. 1, the plaintiffs argue, has approximately 13,029 citizens of voting-age population, while in Districts Nos. 5 and 6, there are approximately 22,932 and 23,884 citizens of voting-age population, respectively. This disparity has created a citizen voting-age population deviation as great as 83 percent between some of the districts. Because of this, the votes of citizens living in District No. 1 are worth nearly twice as much as the votes of citizens residing in Districts Nos. 5 and 6.
The votes of citizens living in District No. 1 are worth nearly twice as much as the votes of citizens residing in Districts Nos. 5 and 6.
These facts lead to an important legal question: Is it constitutional to undersize the citizen population in the Hispanic district, while oversizing the citizen population in non-Hispanic ones? In other words, should 13,000 citizens get a city council member, while in a neighboring district it takes almost 24,000 citizens to get one?
Nearly two decades ago, a three-judge panel of the Ninth Circuit Court decided Garza v. County of Los Angeles, a case much like Benavidez in facts and outcome. In Garza, however, a skillful dissent by Judge Alex Kozinski laid out the competing principles between apportionment by population on the one hand, and by citizen population on the other. Apportionment by raw population, Kozinski asserted, embodies the principle of “representational equality”; it assures that all persons living within a district—whether eligible to vote or not—have roughly equal representation in the governing body.
Apportionment by eligible voters, conversely, serves the principle of “electoral equality.” This principle recognizes that electors—persons eligible to vote—are the ones who hold the ultimate political power in our democracy. Kozinski’s dissent continues:
The principle of electoral equality assures that, regardless of the size of the whole body of constituents, political power, as defined by the number of those eligible to vote, is equalized as between districts holding the same number of representatives. It also assures that those eligible to vote do not suffer dilution of that important right by having their vote given less weight than that of electors in another location. Under this paradigm, the fourteenth amendment protects a right belonging to the individual elector and the key question is whether the votes of some electors are materially undercounted because of the manner in which districts are apportioned.
Between the competing doctrines, Kozinski comes down on the side of electoral equality which, if applied to Irving’s new city council districts, renders them unconstitutional. If “one person, one vote”—the cornerstone of our nation’s most enduring egalitarian principles—has any meaning, the citizen population gaps between Irving’s new districts must not be this glaringly wide. As some legal scholars have noted, voting is a zero-sum game; if the weight of one vote increases, the weight of another vote necessarily decreases.
Is it constitutional to undersize the citizen population in the Hispanic district, while oversizing the citizen population in non-Hispanic ones?
The Supreme Court has long held that, other than for a state’s congressional districts, population deviations between voting districts may be slightly imbalanced, but not by more than 10 percent. Yet the court has never defined a critical variable in this equation, namely, the relevant “population” that should be used in crafting voting districts, whether in the course of regular, periodic redistricting or in the case of Section 2 lawsuits like the one in Irving.
A decade ago, the Supreme Court declined to take up a case from Houston that would have addressed this issue. Justice Clarence Thomas, however, thought otherwise, writing separately that the Court has never determined the relevant population that jurisdictions must equally distribute among their districts. He would have taken the case for argument, noting that there is a split in the appellate circuits over who gets counted, and “as long as we sustain the one-person, one-vote principle, we have an obligation to explain to States and localities what it actually means.”
Like Irving’s new city council districts, there are hundreds of voting districts throughout the country today that have an unfair balance between citizen and non-citizen populations. It would be ironic—and fitting—if Manny Benavidez’s success in imposing single-member city council districts in Irving turned out to catalyze fixing this problem nationally.
Edward Blum is a visiting fellow at the American Enterprise Institute. He is also the director of the Project on Fair Representation, a not-for-profit legal defense fund providing counsel to the plaintiffs in Lepak v. City of Irving, Texas.
Image by Darren Wamboldt/Bergman Group.
Hundreds of voting districts throughout the country have an unfair balance between citizen and non-citizen populations. We may fix that problem soon.
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