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Tuesday, November 29, 2011

The Virtual Reality of ‘One-Person, One-Vote’

In Louisiana v. Bryson, the state of Louisiana has asked the U.S. Supreme Court to exclude so-called “non-immigrant foreign nationals” from the federal census count for purposes of interstate apportionment of congressional representatives.  If Louisiana has a shot, this would be an important case.  With a narrower apportionment basis, several states would see an immediate change in their allotment of representatives.  The change would lead to further ripple-effects like the need to re-district a large number of congressional districts, and the need to re-allocate Electoral College votes.  Logically--though the state’s brief does some hand-waving to disclaim the logic--the change would also throw a wrench into the apportionment basis for other purposes (for example, triggering major cuts in federal aid to states that provide services to large undocumented immigrant populations).

 The state’s argument is rickety, however.  By which, I don’t mean to knock the skill of the brief-writers.  I mean it’s hard to imagine a ruling for the state that would not create significant anomalies in light of text, history and past and present practice.  This is not to say it’s impossible for the Court to rule for Louisiana (as if the Court has never before surprised anyone in Election Law).  My interest in Louisiana’s challenge though, lies not in its prospect of success, but in the fact that it can prompt us to be more explicit about the political theory (or lack thereof) that undergirds our apportionment practices.  In particular, I suggest it can help us to see that virtual representation is an important--not at all marginal or archaic--part of American electoral practice.  Yes, virtual representation.  American as apple pie.

Intuitively, it seems that we (or those of us who identify as Americans) are supposed to be against virtual representation in elections.  I know that, if I learned anything in my high school history class about early electoral traditions, it was that the War of Independence was fought in order to reject that dastardly British fiction (as embodied in Parliament’s imperial claim to represent American colonists even in the absence of specifically American members or electors).  Virtual representation probably also sounds suspect on account of the Supreme Court’s ‘one-person/one-vote’ rules for state legislative apportionment and congressional districting (i.e., rules for composing intra-state constituencies rather than the inter-state allocation of representatives that is at issue in Louisiana v. Bryson).  Some of the Court’s early rhetoric and philosophizing about ‘one-person/one-vote’ can misleadingly sound like we have a one-voter/one-vote rule (which, for the most part, we don’t have even for intra-state apportionment).  Yet many sorts of non-voters, both voting-eligible and ineligible are variously counted now, and have been counted for many sorts of apportionment purposes throughout U.S. history.  It seems that there is not much awareness about this virtual dimension of our practice, much less a normative justification for it that might be consistent with our intuitions about the values of actual representation and political equality.

Returning to Louisiana’s challenge to (one corner) of our virtual-representation practice, the case gets in trouble quickly if we press past its vague appeal and look at specifics (only some of which I can touch on).  First, history.  The state’s brief leans heavily on the argument that the category of “non-immigrant foreign nationals” that it seeks to exclude was not counted at the inception of the U.S.  (This “non-immigrant foreign nationals” category encompasses several distinct groups, including, for example, holders of student visas.  But the real numbers game is about illegal or undocumented long-term residents.) 

Perhaps I am missing something, but this argument from ‘history’ seems to be ‘smoke and mirrors’--an ‘argument’ that an artificial group constructed by the immigration law of today did not get counted in the late-eighteenth-century (and perhaps as well at the time of the fourteenth amendment’s ratification) because such an artificial grouping did not previously exist (back when we did not have this immigration law!).  I suppose, as the litigation develops, this could be turned into a real argument by, for example, unearthing evidence that originally there were some foreigners who were conceived to be an illegal presence in the locale and who were deliberately not counted on account of that illegality.  But it is hard for me to imagine that there was any significant eighteenth-century practice that could provide a colorable analogy (at a time when immigration was far more welcomed and when concepts of “persons”, “inhabitants”, “the people”, “citizens” and “voters” did not neatly align).  I think something similar could be said for the 14th Amendment enactment period. 

Second, text.  The state’s brief tries to lessen the facial generality of the word “persons” (used in the apportionment mandate in both Article 1 and the 14th Amendment, section two) by suggesting that the word “persons” was originally equivalent to “inhabitants”, and that some kind of stringent legal residency requirement should be imputed to the latter.  However, judging from the areas I’ve studied (like New Jersey under its 1776 constitution), this substitution (itself questionable) is no help at all.  Originally, in NJ, for example, “inhabitants” was interpreted to be a comprehensive and long-established census category (with the result that, for many years, the constitution’s “inhabitants” language in its voter eligibility clause was taken to mean that the state legislature had no choice but to allow resident “aliens”, free blacks and women to vote when they met the constitution’s property requirement.)  The textual problem for Louisiana gets even tougher when one looks at the fuller text of Article 1 and the 14th amendment (starting with the phrasing of the “whole number of free persons...” and “the whole number of persons in each state”), but I will leave this exploration for another time.

Third, policy.  Louisiana suggests it is bad public policy (and perhaps an equal protection vote-dilution violation) to reward states that allow illegal immigrants with a higher apportionment count.  This political-process argument (about incentives and perhaps also unjust enrichment) requires that we forget that it is Congress that has ultimate control over immigration [a point on which I repeat myself from a May 2010 thread on the Election-Law list-serve].  States do of course make choices that affect immigration levels at least at the margin, but these choices are at the sufferance of Congress.  In fact, some of the states benefiting from a higher apportionment due to undocumented persons are the very states where we now see draconian anti-immigrant policies.  It is also questionable whether apportionment could ever drive a state’s pro-immigration policy given that so many other, more immediate, costs and benefits attach to immigration (e.g., burdens on the public schools, labor benefits to employers).  This lack of a political-process problem is yet more apparent when one compares it to examples of virtual representation where there have been truly perverse incentives (most obviously, the original 3/5ths apportionment rule for slaves by which slave states were rewarded for owning human beings, and perhaps also, the intra-state prison-based gerrymanders of today that we see in some states).

Finally, (and to me, most interesting), the argument from political theory.  The state pushes a Potential Voter Theory for apportionment (suggesting, for example, that children, legal noncitizen “permanent residents”, and the mentally disabled should count because they all could, in theory, become voters either on account of a change in their condition, passage of time, or a change in the law).  Wisely, the state does not go for one of the more restrictive positions that only voters, currently-eligible voters, voting-age populations, or only citizens should count in the apportionment basis (arguments that have been pressed elsewhere in the past couple of years, but that would more dramatically contravene long practice). 

Potential Voter Theory seems a more modest reform, yet it also seems to me to be more difficult, perhaps impossible, to come up with a rationale for why anyone would draw the line in this way at potential voters (thereby including, for example, the person in a coma, the person with an I.Q of 15, the felon serving a life sentence in a state with felony disenfranchisement--all persons who might be made voter-eligible with a state constitutional amendment but not the “non-immigrant foreign national” adult who was brought to this country illegally at age 2, who did not choose this country, who does not know any other way of life, and who could also be made a voter by a state constitutional amendment).   If one is going to insist on a tight correspondence between voters and persons who count for apportionment (a larger choice about which I disagree), Potential Voter Theory seems to lack a coherent route to get there.

Here I cannot make a normative case for the advantages of Virtual Representation Theory over Potential Voter Theory (or Actual Voter Theory or Citizen Theory).   I will just make some quick gestures.  First, many of our instincts about the badness of virtual representation do not apply to the core instances of today (e.g., the past exclusion of competent women from the vote while counting them for apportionment) and to the extent that they do so apply, these may really be arguments about the extent of the suffrage and not apportionment (e.g., felony disenfranchisement).  Second, while it may seem (and be) perverse for, say, an anti-immigrant member of Congress to represent a district built on the ‘apportionment backs’ of immigrants who pay significant taxes while disenfranchised and illegal, it is not entirely perverse even in the extreme case.  This member pursues policies harmful to the interests of those who are virtually represented.  But the member is probably also serving as a representative of these persons in a less controversial way (e.g., bringing infrastructure money to the state that benefits all who live there).  Third (the point I think is most likely to be missed by others), a Louisiana victory in this case would mean that some persons would not be counted for apportionment who could, in theory, be given the right to vote through a state constitutional amendment!  Such enfranchisement of “non-immigrant foreign nationals” is of course nowhere to be seen on the political horizon, but it is nonetheless a key structural point and, to me, one that is a valuable (quaint or romantic?) symbol of the fact that our federal system has been historically open to having some states be more welcoming to immigrants before the nation as a whole is ready (as we’ve seen before in at least two significant periods of alien suffrage).

See: SCOTUS Blog summary of Louisiana v. BrysonJustin Levitt's prediction about the case outcomeNate Persily's blog post on census issues; Greener and Kenney’s LA Times op-ed for citizen-restricted apportionment


Posted by Kirsten Nussbaumer on November 29, 2011 at 07:56 PM | Permalink


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Thanks for the comments Sheldon. They are helpful. (For those who don’t know, Sheldon is engaged in a really interesting project on the constitutional “citizen” concept.)

Some quick responses:

It may be useful to distinguish different varieties of virtual representation (“VR”)--even when we are just talking about apportionment--because thinking about one variety can color how we think about the whole class. It sounds like you are talking specifically about citizenship-based VR whereas I am at times thinking about VR more generally (with some of it arguably not morally unappealing or archaic). In the apportionment context, I am using VR to refer to every “person” in the US (probably also the overseas American) who is not also a federal “voter” but who now gets counted for allocating representatives (whether inter-state or intra-state).

If I remember our 2010 exchange, I think we came to agree that “citizenship” only became such an important line of demarcation after the U.S. founding, and even then, only gradually and unevenly. The concept does already show up in the US constitution as a category of exclusion, by, for example, limiting who can hold public office, but it is not a concept that the constitution uses for many other purposes (purposes that arguably affect many more people) like voter eligibility and apportionment. For apportionment, of course (like the equal protection clauses), we have the broader “persons” not “citizens”.

If we’re talking about a post-founding U.S. where (white male) citizenship was increasingly equated with the enfranchised class, then I agree with your comment about (citizenship-based) VR gradually becoming more of the rule over time. From my own research on the founding period, I believe that “citizen” (despite the fascination of some with classical Rome) was not at all settled as an important or even coherent idea. For your notion of VR and a 19th c republic that becomes increasingly representative all the way down, I think too of work on gender like that of Rebecca Rix who talks about the 19th century competition between family-based republicanism (with male head of household viewed as the political representative for the family unit) and individual-based republicanism (from which the case for women’s suffrage was a more natural extension).

However, from the perspective of other sorts of VR, it may not make sense to talk about VR as a practice that is only rising with the rise in importance of citizenship in the 19th c. A number of late 18th century American (and British) writers (e.g., James Otis) seem to have been well aware of the disconnect between their rhetoric insisting on actual representation vis-a-vis the British while yet holding on to other sorts of VR (e.g., un-enfranchised women and children who were usually considered part of “the people” but most often not “electors”).

In today’s political discourse and election law, by contrast, I think there is much more often complete forgetting about concepts of VR even while we continue to have *practices* of VR. Some VR is normatively unappealing and can be ‘solved’ by expanding the suffrage (i.e., aligning the apportioned and electorate by expanding the electorate). For those with the opposite political sympathies (e.g., a Michelle Bachmann), citizen-based VR might be ‘solved’ by deportation (aligning the apportionment basis with the electorate by reducing the # of “persons”).

But one of the (over-quick) points of my post is that other sorts of VR may not need ‘solving’ or be capable of solving--that VR for at least young children, the very severely mentally incapacitated, and perhaps persons in a transitional immigration context--might be necessary, and moreover, not a ‘necessary evil’ if we took VR more seriously. Maybe at the margins, it would be a boost to community if politicians were socialized to think about their (non-voting) constituents as yet still their constituents.

Relatedly, maybe (far down the road from where we are now politically), we could find ourselves again in a world where some state will want to enfranchise some of its non-citizens before they are citizens for federal purposes. This connects to the apportionment challenge in LA v. Bryson because the remedy sought in that case could (indirectly) transform our constitutional law about suffrage eligibility, making non-citizen suffrage seem nonsensical or at least subject to congressional discretion.

Here is one way in which the alien suffrage ban statute, section 611 of the IIRIRA, enters in because (even if most constitutional scholars today would call it unconstitutional), it too might limit the long-term imaginations of state and local actors if it stays on the books unchallenged (maybe gaining constitutional weight from its longevity).

Re your comment about judicial review of section 611: Your point about what has happened to “persons” in Plyler v. Doe is well taken. (I actually had a picture of the death-of-Plyler poster-child Jessica Colotl in mind when writing the post. See http://en.wikipedia.org/wiki/Jessica_Colotl )

However, if someone were to bring a challenge to section 611, it would be amazing to me if the strong notion of Congress's plenary immigration power could overtake what is at least as much an *Election Law* question, even to the extent of controlling the level of review (Caveat: I am new to the field of immigration law outside of election law generally and 18th c. The Kanstroom book, for example, will be new to me.)

Finally, returning to LA v. Bryson, I don't think others should have to share the sensibility that we may have about immigration to oppose a newly-restrictive constitutional definition of "persons" for apportionment. For reasons of text and history alone (just only touched upon in my post), it seems to me to be the kind of interpretive issue that could unite interpreters of many stripes, maybe even a Michelle Bachmann who cares about text and history.

Thanks again.

Posted by: Kirsten Nussbaumer | Dec 1, 2011 1:46:28 PM

Your post prompts many reflections. Virtual representation seems to have gradually become the rule as states adopted the language of "citizenship" that first appeared in the federal constitution. The republic became representative, all the way down; for the most part only the white, male head of the family had political rights and could own real property. As you say, we know these things but don't talk about them. As to the current nativist movement, the IIRIRA seems unconstitutional in many ways, as it purports to authorize states to discriminate against "aliens" in the provision of public services, and to reverse Plyler v Doe, 457 U.S. 202 (1982) which forbade such discrimination without substantial justification. Immigration and naturalization law are mostly not subject to judicial review, under the doctrine of the Chinese Exclusion Act Cases; as you probably know, an excellent historical account is given in Daniel Kanstroom's excellent book Deportation Nation: Outsiders in American History (2007).

Posted by: Sheldon Novick | Dec 1, 2011 9:52:39 AM

Jeff, thanks for the clip. It is a fun one! (I would also add it is a different issue about proxy voting, legislative abdication of responsibility, or worst-case, multiple votes per legislator if the ones voting aren't accurately representing the absent ones.)

I should also clarify that I was not attacking one-person/one-vote in general, or the application of the principle for areas of election law outside interstate apportionment. I was mainly just trying to point up that our apportionment base has forever been broader than mere voters (or citizens or some other partial grouping). This virtual representation has partly been for unjust reasons like the counting of persons wrongly disenfranchised or worse, enslaved, but it has also been for reasons that are permanent and arguably not unjust--like the counting of persons who don't have voter competence even by the widest standard of universal suffrage, or people who don't now have the competence but will have that competence (young children, just-landed immigrants who may become members of the community).

The counting of nonvoters for apportionment can reasonably be controversial when it has systemic effects that are very biased, or there is some other identifiable harm. But these are arguments that need to made. It can't be ok just to fall back on intuitions that virtual representation is suspect, not what we do here in America (when in fact it is what we have done all along but apparently rarely talk about, much less theorize).

Posted by: Kirsten Nussbaumer | Nov 30, 2011 11:20:59 AM

As you can tell from the clip below, the one-person-one-vote idea gets no love in the Texas legislature...


Posted by: Jeff Yates | Nov 30, 2011 8:03:22 AM

Amendment: I said before that this law appears to ban illegal immigrant suffrage, but really it seems to sweep much broader, even forbidding suffrage for *legal* noncitizen immigrants (see the "any alien" language).

Posted by: Kirsten Nussbaumer | Nov 30, 2011 1:17:12 AM

"Sec. 611. Voting by aliens (a) It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, unless - (1) the election is held partly for some other purpose;(2) aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance; and (3) voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose, but not an opportunity to vote for a candidate for any one or more of such Federal offices."

Posted by: Kirsten Nussbaumer | Nov 30, 2011 1:14:05 AM

Thanks. That is what I thought you were getting at in the end of your post, but I wanted to be sure. What's the provision of IIRIRA?

Posted by: William Baude | Nov 30, 2011 1:05:15 AM

[Please forgive me if I end up posting multiple replies. I've been trying to reply for a while now with none of my text showing up.]

Thanks for the question. It is a good one. (I went too fast at the end of my long post.) You are correct about both the history and the constitutional text. The original article 1, section 2, clause 1 (Elector Qualifications Clause about voter eligibility for the House of Representatives) does indeed "tether" the federal qualifications to the voter qualifications for the most popular legislative branch in each state. The 17th Amendment then uses the same piggy-backing or 'incorporation by reference' arrangement to specify the voter qualifications for the Senate. Post-Civil War Amendments and some Supreme Court cases of course make very important carve-outs from the states' ability to set the voter qualifications. But none of these purports to change the basic structure by affirmatively specifying who has the right to vote. We still have the original tethering or piggy-backing in which the affirmative content of the voter qualifications comes from the states. So for example, there is felony disenfranchisement for some congressional seats but not others, varying by state choice.

Historically, as you remember, we have had non-citizen suffrage in some states and the tethering rule meant that there was therefore a corresponding alien suffrage for some congressional seats. (The most well-known instances occurred in some midwestern states in the 19th century that were eager to encourage immigration, see, e.g., Alex Keyssar, but these better-known examples aren't exhaustive of the history).

It was this constitutional state/Congress tethering and the past history of alien suffrage that I was referencing in my last point. I was trying to say that we couldn't exclude the "non-immigrant foreign nationals" from *apportionment* without forgetting that, in theory, these persons could be *enfranchised* (for the state legislature and thus for Congress). Surely, the Court could never accept that we might have actual voters who don't count for apportionment! I worry this is a point that courts could forget because alien suffrage seems so, well alien, in today's political landscape.

In fact, the strict 1996 immigration law passed by Congress (the Illegal Immigration Reform & Immigrant Responsibility Act) seems to include a ban on illegal immigrant suffrage! [My awareness of the existence of this law, BTW, is only thanks to a Mark Scarberry post on the Election Law list-serve.] I don't know of anyone who thinks this piece of the IIRIRA is constitutional if the (poorly drafted) language really means what it sounds like. But I assume someone must have thought it was constitutional for it to get enacted into law. (Maybe the best bet argument for constitutionality would be to claim some kind of 14th Amendment anti-vote-dilution.) Certainly, some of us think it is no-brainer UNconstitutional--that Congress lacks the power to enact such a ban. Which brings me in a round-about way back to your opening question: No, I don't think there is anything in the Constitution that prohibits states from enfranchising this group (even though such enfranchisement could be countered by congressionally mandated deportation under Congress's immigration power!) More strongly, under caselaw, text and practice, I think it is unconstitutional for Congress to try to take this power away from the states. My views on this are no doubt shaped by my own (idiosyncratic) historical research. But I believe they also comport with the SCT doctrine.

Posted by: Kirsten Nussbaumer | Nov 29, 2011 11:49:41 PM

I am thinking out loud here, but is there anything in the Federal Constitution that would forbid a state from letting some of these "non-immigrant foreign nationals" vote in its elections for Congress? I think I remember that some states did let foreign nationals vote in some elections, and the Constitution tethers federal and state voting qualifications together.

So are "non-immigrant foreign nationals" indeed potentially eligible to vote?

Posted by: William Baude | Nov 29, 2011 10:42:51 PM

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