Civil and Human Rights

Blum off the rose? Court won’t consider scrapping “One Person, One Vote.”

The Supreme Court today wisely declined to take up Lepak v. City of Irving, a wild punch of a case that would have threatened to pervert the basic democratic principle of “One Person, One Vote.”

The Court’s announcement is good news for voting rights advocates, and bad news for Edward Blum, the conservative agitator behind several recent challenges to major civil rights laws. While two of Blum’s high-profile efforts have made the Supreme Court’s docket this year—the Fisher v. University of Texas affirmative action case and the Shelby County v. Holder voting rights case—the Lepak challenge appears to have been a bridge too far for the justices.   

At issue in Lepak was whether state and local governments should be constitutionally required to draw voting districts according to the geographic distribution of eligible voters, rather than the distribution of the population itself, with youth, non-citizens and other non-voters included in the count as they have been since time immemorial. Though the Constitution clearly states –twice, and decisively—that it’s persons who must be equally represented on electoral maps, Blum and the plaintiffs here argued that high concentrations of non-citizen immigrants in certain areas were effectively undermining the voting power of voters in more homogenous districts of adult citizens.

David Gans broke down the history behind the core constitutional ideal of equal representation for all persons last week:

Both at the Founding and following passage of the Fourteenth Amendment, the American people wrote into the Constitution the fundamental principle of equal representation for all persons.  For good reason, no court in the history of American law has ever accepted Blum’s argument. 

Article I, Section 2 of the Constitution established the principle that “[r]epresentatives … shall be apportioned among the several states … according to their respective numbers.”  The idea championed by our Founding Fathers was that “equal numbers of people ought to have an equal n[umber] of representatives.”  After the abolition of slavery and the despised Three-Fifths Clause that added to the political power of the slave states, the Fourteenth Amendment affirmed the principal of equal representation for all persons, requiring that “[r]epresentatives shall be apportioned  among the several states according to their respective numbers, counting the whole number of persons in each State.”… 

Importantly, the Framers of the Fourteenth Amendment specifically considered and rejected proposals to use the number of voters as opposed to the number of people as the basis for representation.  The Framers recognized that “women, children, and other non-voting classes may have as vital an interest in the in the legislation of the country as those who actually deposit the ballot.”  As Senator Jacob Howard explained during debates over the Fourteenth Amendment, “Numbers, not voters … ; this is the theory of the Constitution.”  Blum’s argument that voters, not persons, are the true basis of a representative democracy is one that has been consistently rejected throughout our Constitution’s history.

Despite this setback, Blum will continue to be in the news this spring in conjunction with his more successful campaigns, and no doubt appearing with more headline grabbing cases before the courts in the future.  Hopefully, today’s decisive action is an indication that Court is starting to tire of his antics.

Learn more about the constitutional history at work in Shelby County and Fisher.

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