Congratulations to Honolulu attorney and law blogger Robert Thomas, whose column on a recent U.S. Supreme Court voting rights case landed a lead mention by the SCOTUSblog.
SCOTUSblog provides wall-to-wall coverage of cases before the U.S. Supreme Court. Thomas’ blog, http://www.inversecondemnation.com, comments on a variety of cases of national and local import.
Thomas called the SCOTUSblog mention “the equivalent of law blogger nirvana.”
His column, What Does Evenwel v. Abbott Mean For “One Person, One Vote”? appeared at casetext.com.
It was a refinement of his own blog post published immediately after the decision.
Here’s the court’s own summary of the case:
Texas, like all other States, draws its legislative dis- tricts on the basis of total population. Plaintiffs- appellants are Texas voters; they challenge this uniform method of districting on the ground that it produces un- equal districts when measured by voter-eligible population. Voter-eligible population, not total population, they urge, must be used to ensure that their votes will not be deval- ued in relation to citizens’ votes in other districts. We hold, based on constitutional history, this Court’s decisions, and longstanding practice, that a State may draw its legislative districts based on total population.
Thomas was quick to tie the decision back to the awkward case of Hawaii, where legislative districts are apportioned based on “permanent resident population,” which excludes most military personnel and students who maintain legal residence elsewhere.
Thomas was lead attorney in a legal challenge to Hawaii’s most recent reapportionment. The plaintiffs in that case sought to force the state to include military personnel and students in the base population for purposes of reapportionment (Congressman Mark Takai was one of the plaintiffs). The challenge was rejected, but Thomas now raises the question of whether this latest Supreme Court ruling will change the outcome in any future case.
Hawaii is the most prominent and extreme. It counts only “permanent residents” and Hawaii “extracted” 108,767 of its Census-counted residents from its last reapportionment population. Like Texas, Hawaii included undocumented aliens (who are counted as residents by the Census), prisoners, felons, and others, but unlike Texas, it excluded active duty military personnel if they elected to pay state taxes in another state. It also excluded military dependents if they were associated with a service member who so elected, and university students who did not qualify to pay resident tuition. Hawaii does so on the avowed basis that it is counting state citizens and protecting their voting power. Which means that to the State of Hawaii, undocumented aliens and felons are all Hawaii citizens, but resident military, dependents, and students who don’t qualify to pay resident tuition are not. This plan resulted in nearly 8% of Hawaii’s actual population being deprived of representation in the state legislature.
The biggest question remaining after the Supreme Court’s decision is how this and similar exclusions will be treated by the courts. The Evenwel opinion cryptically noted that if states rely on “nondiscriminatory population bases,” the choice of whom to include is better left to them. By what standard should future courts evaluate whether a state is not discriminating when it favors voting power over equal representation for all, and chooses to deny some residents the right to be represented equally as recognized by Evenwel?
Congressman Takai issued a press release immediately following the court decision.
“Today, the Supreme Court reaffirmed that states should be using the “one person one vote” methodology, and not excluding anyone during the reapportionment process. Hawaii continues to wrongfully leave out more than 108,000 military members, their families and university students. It is time to bring our reapportionment practice in line with 48 other states, and ensure everyone is included equally,” Takai said.
It’s worth reading through some of this, as the questions will undoubtedly be front and center when reapportionment time rolls around again.