Arizona appeals court reverses conviction of voter who voted in both Colorado and Arizona in 2010

Arizona law prohibits any voter from "knowingly vot[ing] more than once at any election." Ariz. Rev. Stat. § 16-1016(2). Carol Hannah sent a mail-in ballot in Colorado for the Colorado elections, and she subsequently voted in person in the Arizona general election held November 2, 2010. She was found guilty at a jury trial.

On appeal, in State v. Hannah, 2015 WL 4538536 (Ariz. Ct. Ap. July 28, 2015), the court noted that this was not prohibited by the statute, even though the elections were held on a single day pursuant to federal law:

The State argues the Arizona and Colorado elections held on November 2, 2010 were part of one election, relying on congressional regulations that designate a specific day to select candidates for Congress and the President in a singular, regular election. See 2 U.S.C. § 1 (setting the day for “the regular election held in any State” to choose Senators); 2 U.S.C. § 7 (establishing “the day for the election” of Representatives and Delegates to Congress); 3 U.S.C. § 1 (setting date for “every election” of President and Vice President).

We recognize the elections held on the first Tuesday following the first Monday of November in every even-numbered year are sometimes referred to as “national elections” because they, collectively, include the selection of all the members of the House of Representatives and one-third of the members of the Senate. However, these state elections are held on the same day as a matter of administrative and practical convenience in an attempt "'to remedy more than one evil arising from the election of members of Congress occurring at different times in the different States.'" Foster v. Love, 522 U.S. 67, 73 (1997) (quoting Ex parte Yarbrough, 110 U.S. 651, 661 (1884)). But, within that singular time constraint, each state conducts a separate election for the selection of its Senators and Representatives as constitutionally provided. See U.S. Const. art. I, § 4, cl. 1 (reserving to the states the authority to prescribe the time, place, and manner of holding elections for its Senators and Representatives); United States v. Classic, 313 U.S. 299, 311 (1941) (stating that under the Elections Clause, “the states are given, and in fact exercise wide discretion in the formulation of a system for the choice by the people of representatives in Congress”).

Thus, the elections held in Arizona and Colorado on November 2, 2010, although occurring on the same day, were separate and discrete elections, held in two different states. While the evidence is sufficient to permit a finding that Hannah cast a ballot in both Arizona and Colorado on November 2, 2010, the evidence is insufficient to show Hannah voted “more than once in any election,” such that her vote received more weight than that of any other citizen, where there is no evidence that any candidate appeared on both ballots and 2010 was not a presidential election year. The evidence is therefore insufficient to support a conviction for illegal voting in violation of A.R.S. § 16–1016(2), and we reverse the conviction.

Of note, however, is that other problems may exist with Hannah's decision to vote in two states:

Although we reverse Hannah's conviction, we do not mean to imply that voting in elections held in two separate states on the same date is otherwise proper or lawful. Such conduct raises serious questions regarding whether Hannah was a qualified voter in both Arizona and Colorado in November 2010. However, the State does not dispute Hannah was qualified to vote in the Arizona election, and Hannah was not charged with casting a vote while not qualified to do so. See A.R.S. § 16–1016(1) (“A person is guilty of a class 5 felony who ... [n]ot being entitled to vote, knowingly votes.”). Whether Hannah was qualified to cast a ballot in the Colorado election is a matter for Colorado to address in the interpretation and application of its own law. We likewise express no opinion as to whether Hannah's conduct constitutes a violation of federal law. See, e.g., 52 U.S.C. § 10307(e) (prohibiting voting more than once in a federal election).

It's an interesting little statutory interpretation question with a constitutional dimension, and it invites scrutiny and more careful drafting of other kinds of double-voting laws in an age where early voting is increasingly widespread.

Quick thoughts on Arizona State Legislature v. Arizona Independent Redistricting Commission

Sixteen months ago, I highlighted a largely-unnoticed case in which Arizona's state legislature challenged a delegation of power over its power to draw congressional districts from itself to an independent redistricting commission, a delegation that occurred via ballot initiative. I noted the three-judge panel district court's decision, was the first to mention Paul Clement's involvement in the case, and had a few thoughts from oral argument. Now have a decision (PDF).

The opinion written by Justice Ginsburg, in a 5-4 vote, affirmed the three-judge panel and permits the independent redistricting commission. (This vote total is deceptive: two justices would have dismissed the case for lack of jurisdiction, effectively allowing the law to remain on the books; so, in theory, 7 justices agreed with the result in some remote way, but only 5 agreed on the merits of the constitutional claim.)

First, the case permits the legislature to have standing, distinguishing it from Raines v. Byrd, in which individual members attempted to assert standing. This, I think, portends poorly for the legislators suing in Hickenlooper v. Kerr, the Guarantee Clause case I've written about before.

Second, the opinion spends a substantial amount of time emphasizing that federal statute permits the exercise of power here. But that only addresses half the question: the other half the constitutional question, because if Congress lacked the power to authorize such an exercise of power, then the statute would fall, too.

Third, on the Elections Clause issue, the bulk of the analysis turns on a generous definition of the word "legislature," including the power to delegate authority:

To restate the key question in this case, the issue centrally debated by the parties: Absent congressional authorization, does the Elections Clause preclude the people of Arizona from creating a commission operating independently of the state legislature to establish congressional districts? The history and purpose of the Clause weigh heavily against such preclusion, as does the animating principle of our Constitution that the people themselves are the originating source of all the powers of government.

...

As well in Arizona, the people may delegate their legislative authority over redistricting to an independent commission just as the representative body may choose to do.

Fourth, Chief Justice Roberts pens the principle dissent relying on several core arguments: that the word "Legislature" relating to the election of Senators is instructive; the definition of the legislature; etc.

But, he also writes about the power of delegation, with some doubt:

The majority concedes that the unelected Commission is  not “the Legislature” of Arizona. The Court contends instead that the people of Arizona as a whole constitute “the Legislature” for purposes of the Elections Clause, andthat they may delegate the congressional districting authority conferred by that Clause to the Commission. Ante, at 25. The majority provides no support for the delegation part of its theory, and I am not sure whether the majority’s analysis is correct on that issue. But even giving the Court the benefit of the doubt in that regard, the Commission is still unconstitutional.

Fifth, the sides dispute the functionalist definition of "legislature." From Justice Ginsburg:

THE CHIEF JUSTICE, in dissent, features, indeed trumpets repeatedly, the pre-Seventeenth Amendment regime in which Senators were “chosen [in each State] by the Legislature thereof.” Art. I, §3; see post, at 1, 8–9, 19. If we are right, he asks, why did popular election proponents resort to the amending process instead of simply interpreting “the Legislature” to mean “the people”? Post, at 1. Smiley, as just indicated, answers that question. Article I, §3, gave state legislatures “a function different from that of lawgiver,” 285 U. S., at 365; it made each of them “an electoral body” charged to perform that function to the exclusion of other participants, ibid. So too, of the ratifying function. As we explained in Hawke, “the power to legislate in the enactment of the laws of a State is derivedf rom the people of the State.” 253 U. S., at 230. Ratification, however, “has its source in the Federal Constitution” and is not “an act of legislation within the proper sense of the word.” Id., at 229–230.

Constantly resisted by THE CHIEF JUSTICE, but well understood in opinions that speak for the Court: “[T]he  meaning of the word ‘legislature,’ used several times in the Federal Constitution, differs according to the connection in which it is employed, depend[ent] upon the character of the function which that body in each instance is called upon to exercise.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 434 (1932) (citing Smiley, 285
U. S. 355). Thus “the Legislature” comprises the referendum and the Governor’s veto in the context of regulating congressional elections.

Chief Justice Roberts also addresses the functionalism argument of "legislature":

As a matter of ordinary language and common sense, however, a difference in function does not imply a difference in meaning. A car, for example, generally serves a transportation function. But it can also fulfill a storage function. At a tailgate party or a drive-in movie, it may play an entertainment function. In the absence of vacancies at the roadside motel, it could provide a lodging function. To a neighbor with a dead battery, it offers an electricity generation function. And yet, a person describing a“car” engaged in any of these varied functions would undoubtedly be referring to the same thing.

Sixth, the Court struggles with congressional election precedent (more on this later--I have much to say!). It examine Baldwin v. Trowbridge, as Congress examined whether to seat someone elected pursuant to the state legislature's rules or the constitutional rules. From Justice Ginsburg:

The House Elections Committee, in a divided vote, ruled that, under the Elections Clause, the Michigan Legislature had the paramount power.

As the minority report in Baldwin pointed out, however,the Supreme Court of Michigan had reached the opposite conclusion, holding, as courts generally do, that state legislation in direct conflict with the State’s constitution is void. Baldwin, H. R. Misc. Doc. No. 152, at 50. The Baldwin majority’s ruling, furthermore, appears in tension with the Election Committee’s unanimous decision in Shiel just five years earlier. (The Committee, we repeat,“ha[d] no doubt that the constitution of the State ha[d]fixed, beyond the control of the legislature, the time for holding [a congressional] election.” Shiel, H. R. Misc. Doc. No. 57, at 351.) Finally, it was perhaps not entirely accidental that the candidate the Committee declared winner in Baldwin belonged to the same political party as all but one member of the House Committee majority responsible for the decision.

And from Chief Justice Roberts:

The House Elections Committee explained that the Elections Clause conferred power on “the Legislature” of  Michigan to prescribe election regulations. “But,” the Committee asked, “what is meant by ‘the legislature?’ Does it mean the legislative power of the State, whichwould include a convention authorized to prescribe fundamental law; or does it mean the legislature eo nomine, as known in the political history of the country?” Id., at 47. The Committee decided, and the full House agreed,that “the Legislature” in the Elections Clause was the “legislature eo nomine”—the legislature by that name, a representative body.

...

The report cites a Michigan Supreme Court precedent that allegedly reached a contrary result, but that case turned entirely on state constitutional questions arising from a state election—not federal constitutional questions arising from a federal election. . . . In any event, to the degree that the two precedents are inconsistent, the later decision in Baldwin should govern

[n.3] The majority’s suggestion that Baldwin should be dismissed as an act of partisanship appears to have no basis, unless one is willing to regard as tainted every decision in favor of a candidate from the same party as a majority of the Elections Committee.

Seventh, Justice Scalia (joined by Justice Thomas) writes that this is not within the Article III power of the courts, particularly citing the shaky foundation of Coleman v. Miller as a basis for asserting authority over the case. And Justice Thomas (joined by Justice Scalia) noted that this case is not truly about deferring to state ballot initiatives, as the Court has felt comfortable striking down such regulations before.

Not many surprises in the opinions, I don't think. But, there is much to delve into in the months ahead.

Scalia, Roberts discuss the Elections Clause in dueling King v. Burwell opinions

King v. Burwell (PDF) is a statutory interpretation case about health care exchanges, but the Elections Clause makes an appearance.

From Justice Scalia's dissent:

To see the error in this reasoning, one need only consider a parallel provision from our Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Art. I, §4, cl. 1 (emphasis added). Just as the Affordable Care Act directs States to establish Exchanges while allowing the Secretary to establish “such Exchange” as a fallback, the Elections Clause directs state legislatures to prescribe election regulations while allowing Congress to make “such Regulations” as a fallback. Would anybody refer to an election regulation made by Congress as a “regulation prescribed by the state legislature”? Would anybody say that a federal election law and a state election law are in all respects equivalent? Of course not. The word “such” does not help the Court one whit.

And Chief Justice Roberts's response in footnote 2:

The dissent argues that the phrase “such Exchange” does not suggest that State and Federal Exchanges “are in all respects equivalent.” Post, at 8. In support, it quotes the Constitution’s Elections Clause, which makes the state legislature primarily responsible for prescribing election regulations, but allows Congress to “make or alter such Regulations.” Art. I, §4, cl. 1. No one would say that state and federal election regulations are in all respects equivalent, the dissent contends, so we should not say that State and Federal Exchanges are. But the Elections Clause does not precisely define what an election regulation must look like, so Congress can prescribe regulations that differ from what the State would prescribe. The Affordable Care Act does precisely define what an Exchange must look like, however, so a Federal Exchange cannot differ from a State Exchange.

Challenges implementing federal automatic voter registration

Last week, Hillary Clinton proposed automatic voter registration at a campaign event. I'd like to focus less on the wisdom of such a proposal and more about the challenges that would confront an actual piece of legislation. Fortunately, we have that bill, H.R. 2694, the Automatic Voter Registration Act. It was introduced yesterday, June 9, by David Cicilline of Rhode Island, and currently has 42 co-sponsors (all Democrats).

The bill would amend the National Voter Registration Act of 1993 for automatic voter registration of anyone who registers with a state's department of motor vehicles for a driver's license, unless that person opts out. The following information would be collected:

(a)(2)(A) The individual’s legal name.

(B) The individual’s age.

(C) The individual’s residence.

(D) The individual’s citizenship status.

(E) The individual’s electronic signature.

I pause to wonder what this means for the myriad other things that come along with voter registration. Some states ask for your party affiliation; would all automatically-registered voters simply not be affiliated with a party (and perhaps be ineligible to vote in a state primary unless they took the affirmative step to affiliate)? Many states forbid ex-felons from voting (which is probably less problematic for 16-year-olds applying for driver's licenses but could impact other applicants). Would automatic registration force states to ignore ex-felon status?

Indeed, the proposed law would actually abolish Section 5 of the current NVRA, which requires states to provide a form that would include "the minimum amount of information necessary to (i) prevent duplicate voter registrations; and (ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process." (That form has led to some recent litigation of note.) So it appears that the "federal form" would no longer exist under such a proposal, and a smaller quantum of information would be provided for registration.

Of course, another sticky point is citizenship status. Some states have moved away from requiring proof of citizenship status to obtain a driver's license, and others have sought more aggressive citizenship investigation in their own states. The law would qualify the collection and use of this information:

(3) Restriction on use of information on citizenship status. A State may not use any identifying information regarding an individual’s citizenship status which is transmitted under this subsection for any purpose other than determining whether the individual is eligible to vote in elections for Federal office.

It would allow states to collect information on citizenship status, but then forbid them for using that information for any reason other than voter registration.

And the final twist is that this law, like others, would only apply to federal elections. Arizona disapproved of the federal form so strongly regarding its own proof of citizenship that it developed a federal-only ballot for those acting pursuant to the Election Assistance Commission's directive, and a ballot for its state and federal elections for those who could also comply with state law apart from the EAC. There's some risk that an undertheorized--or, perhaps, simply unpopular--"automatic" voter registration that affects only federal races would prompt states to create a dual track for ballots. (Whether that could be mitigated with conditional federal funding or other types of incentives is another matter.)

Again, the purposes of this discussion is not to address the underlying merits of automatic voter registration. Instead, it's simply to highlight some of the challenges that may exist in actually implementing it at a federal level--and, with an actual bill now before Congress (with, admittedly, little likelihood of enactment), it's a point for some actual discussion.

Notable pending election law bills in the 114th Congress

Here's the list of notable election law bills in the 114th Congress. ("Notable," in that I've decided they're notable?) It does not include any proposed constitutional amendments.

Two trends notable among these notables. First, none have made it out of committee. Second, I'd guess a majority are have serious constitutional doubts anyway, so maybe it's better that way?

H.R. 12: Voter Empowerment Act of 2015 (introduced March 19, 2015, by John Lewis; 178 co-sponsors). "To modernize voter registration, promote access to voting for individuals with disabilities, protect the ability of individuals to exercise the right to vote in elections for Federal office, and for other purposes."

H.R. 20: Government By the People Act of 2015 (introduced January 21, 2015, by John Sarbanes; 147 co-sponsors). "To reform the financing of Congressional elections by broadening participation by small dollar donors, and for other purposes."

H.R. 154: Close the Floodgates Act (introduced January 6, 2015, by Derek Kilmer; 87 co-sponsors). "To repeal the provisions of the Consolidated and Further Continuing Appropriations Act, 2015, which amended the Federal Election Campaign Act of 1971 to establish separate contribution limits for contributions made to national parties to support Presidential nominating conventions, national party headquarters buildings, and recounts."

H.R. 367: Campaign Sunlight Act of 2015 (introduced January 14, 2015, by Theodore Deutch; 7 co-sponsors). "To amend the Federal Election Campaign Act of 1971 to require the Federal Election Commission to establish and operate a website through which members of the public may view the contents of certain political advertisements, to require the sponsors of such advertisements to furnish the contents of the advertisements to the Commission, and for other purposes."

H.R. 411: Streamlined and Improved Methods at Polling Locations and Early (SIMPLE) Voting Act of 2015 (introduced January 20, 2015, by Steve Cohen; 27 co-sponsors). "To amend the Help America Vote Act of 2002 to promote early voting in elections for Federal office and to prevent unreasonable waiting times for voters at polling places used in such elections, and for other purposes."

H.R. 412: To reduce Federal spending and the deficit by terminating taxpayer financing of presidential election campaigns (introduced January 20, 2015, by Tom Cole; 1 co-sponsor).

H.R. 425: Stop Super PAC-Candidate Coordination Act (introduced January 21, 2015, by David Price; 6 co-sponsors). "To amend the Federal Election Campaign Act of 1971 to clarify the treatment of coordinated expenditures as contributions to candidates, and for other purposes."

H.R. 599: Stop Targeting of Political Beliefs by the IRS Act of 2015 (introduced January 28, 2015, by Paul Ryan; 13 co-sponsors). "To prohibit the Internal Revenue Service from modifying the standard for determining whether an organization is operated exclusively for the promotion of social welfare for purposes of section 501(c)(4) of the Internal Revenue Code of 1986."

H.R. 714: Leadership PAC Limitation Act (introduced February 4, 2015, by Michael Capuano; 2 co-sponsors). "To amend the Federal Election Campaign Act of 1971 to prohibit the conversion of leadership PAC funds to personal use."

H.R. 871: Formerly Incarcerated Voter Registration Act of 2015 (introduced February 11, 2015, by Hakeem Jeffries; 1 co-sponsor). "To amend title 18, United States Code, to direct the Bureau of Prisons to provide certain voting information to Federal prisoners upon their release from prison."

H.R. 885: Voting Rights Amendment Act of 2015 (introduced February 11, 2015, by Jim Sensenbrenner; 64 co-sponsors). "To amend the Voting Rights Act of 1965 to revise the criteria for determining which States and political subdivisions are subject to section 4 of the Act, and for other purposes."

H.R. 951: State Sovereignty in Voting Act (introduced February 12, 2015, by Matt Salmon; 4 co-sponsors). "To amend the National Voter Registration Act of 1993 to permit a State to require an applicant for voter registration in the State who uses the Federal mail voter registration application form developed by the Election Assistance Commission under such Act to provide documentary evidence of citizenship as a condition of the State's acceptance of the form."

H.R. 1346: Redistricting Transparency Act of 2015 (introduced March 10, 2015, by Jim Cooper; 19 co-sponsors). "To require States to carry out Congressional redistricting in accordance with a process under which members of the public are informed of redistricting proposals and have the opportunity to participate in the development of such proposals prior to their adoption, and for other purposes."

H.R. 1347: John Tanner Fairness and Independence in Redistricting Act (introduced March 10, 2015, by Jim Cooper; 14 co-sponsors). "To prohibit States from carrying out more than one Congressional redistricting after a decennial census and apportionment, to require States to conduct such redistricting through independent commissions, and for other purposes."

H.R. 1518: Let It Go Act (introduced March 19, 2015, by Mark Takano; 1 co-sponsor). "To amend the Federal Election Campaign Act of 1971 to provide for a limitation on the time for the use of contributions or donations, and for other purposes."

H.R. 2143: EMPOWER Act (introduced April 30, 2015, by David Price; 1 co-sponsor). "To amend the Internal Revenue Code of 1986 to reform the system of public financing for Presidential elections, and for other purposes."

H.R. 2173: Redistricting Reform Act of 2015 (introduced April 30, 2015, by Zoe Lofgren; 35 co-sponsors). "To require States to conduct Congressional redistricting through independent commissions, and for other purposes."

H.R. 2392: Restoring Important Voter Eligibility Requirements to States Act of 2014 (introduced May 18, 2015, by John Culberson; 1 co-sponsor). "To amend the National Voter Registration Act of 1993 to require an applicant for voter registration for elections for Federal office to affirmatively state that the applicant meets the eligibility requirements for voting in such elections as a condition of completing the application, to require States to verify that an applicant for registering to vote in such elections meets the eligibility requirements for voting in such elections prior to registering the applicant to vote, and for other purposes."

H.R. 2501: Citizens’ Districts Preservation Act (introduced May 21, 2015, by Dana Rohrabacher; 15 co-sponsors). "To require certain States to retain the Congressional redistricting plans in effect as of the first day of the One Hundred Fourteenth Congress until such States carry out a redistricting plan in response to the apportionment of Representatives resulting from the regular decennial census conducted in 2020."

S. 212: LINE Act of 2015 (introduced January 21, 2015, by Barbara Boxer; 3 co-sponsors). "A bill to amend the Help America Vote Act of 2002 to ensure that voters in elections for Federal office do not wait in long lines in order to vote."

S. 229: Democracy Is Strengthened by Casting Light On Spending in Elections Act of 2015 (introduced January 21, 2015, by Sheldon Whitehouse; 42 co-sponsors). "A bill to amend the Federal Election Campaign Act of 1971 to provide for additional disclosure requirements for corporations, labor organizations, Super PACs and other entities, and for other purposes." (See also H.R. 430.)

S. 366: Senate Campaign Disclosure Parity Act (introduced February 4, 2015, by John Tester; 37 co-sponsors). "A bill to require Senate candidates to file designations, statements, and reports in electronic form."

S. 457: Civil Rights Voting Restoration Act of 2015 (introduced February 11, 2015, by Rand Paul; 1 co-sponsor). "A bill to secure the Federal voting rights of non-violent persons when released from incarceration." (See also H.R. 1556.)

S. 772: Democracy Restoration Act of 2015 (introduced March 18, 2015, by Ben Cardin; 10 co-sponsors). "A bill to secure the Federal voting rights of persons when released from incarceration." (See also H.R. 1459.)

S. 1088: Voter Registration Modernization Act (introduced April 27, 2015, by Kirsten Gillibrand; 5 co-sponsors). "A bill to amend the National Voter Registration Act of 1993 to provide for voter registration through the Internet, and for other purposes."

S. 1139: Same Day Registration Act (introduced April 30, 2015, by Amy Klobuchar; 1 co-sponsor). "A bill to amend the Help America Vote Act of 2002 to require States to provide for same day registration."

Could Evenwel v. Abbott end prison gerrymandering? And other potential implications

The Supreme Court agreed to hear Evenwel v. Abbott, a challenge to Texas's state legislative redistricting plan, which draws districts on the basis of total population and not on a voter-based metrics (such as citizen voting-age population). There are important, fundamental constitutional problems with this case, which I've raised briefly elsewhere. But I want to focus on the impact of the case if petitioners succeed--because, of course, sadly, few want to spend time on what the Constitution says, or how theories of representative government change, and most just want to figure out what's in it for which groups.

Ostensibly, the case, narrowly viewed, would shift power away from voters residing in districts with a large number of non-citizens and toward districts with a large number of citizens. That's, at least, the superficial reason for the challenge in Texas. Given that ostensible fact that disproportionately more Latino voters reside in districts with non-citizens, that would theoretically mean a dilution of their political power if other voters were added to their districts. And given that Latino voters tend to favor Democratic candidates, this would tend to advantage Republicans.

This is probably, at best, partially right, and, at worst, mostly wrong.

Recall that Latino voters often qualify for majority-minority districts under Section 2 of the Voting Rights Act. The baseline there is voters, not simply population. To the extent that Latino voters have secured districts under Section 2, they will not suddenly be disempowered if districts must be drawn to include solely voters; instead, it is likely that, at least in regard to Section 2 districts, the effects would be less pronounced than immediately reported, and perhaps even marginal. (This, of course, assumes that Latino voters are residing in Section 2-drawn districts, and that the Supreme Court continues to interpret Section 2 as it has.) It might be the case that Latino voters would lose a marginal district or so if they were unable to muster sufficient voters in newly-redrawn districts. But they could also add previously-marginalized Latino voters in non-majority-minority districts to shore up a district that might otherwise have been lost under a new rule. And that means the partisan impact might be less than otherwise projected, too. (I'm sure very careful political scientists will have more to say about the more nuanced impact of such policies in the months ahead.)

But there are other alterations that such a lawsuit might bring, all depending on the fashioning of the remedy. To name a few.

• Districts with a felon prison population would lose political power. While a few states count prisoners as inhabitants of their last place of residence before prison, most include them as members of the population where they currently reside. That, obviously, can create districts, especially in the state's lower chamber of the legislature, with a significant number of ineligible voters. And these prisons tend to be in fairly rural areas (PDF)--or, areas that tend to have more Republican voters. A couple of million felons reside in these extremely concentrated areas--prisons, after all, are probably amount the most concentrated non-voting demographic you can find--and the practice of "prison gerrymandering" might be found unconstitutional.
• Districts with a disenfranchised ex-felon population would lose political power. To the extent a decision gets so granular as to exclude even ex-felons in redistricting in states that disenfranchise them, we'd have to look at where the couple of million ex-felons reside. And if most ex-felons are in largely concentrated in urban areas, then we'd expect a loss of political power for those urban dwellers as voters are added to their districts--which might benefit Republicans more than Democrats.
• Districts with a large number of children would lose political power. Children under the age of 18 are ineligible to vote in every state, with a couple of very marginal exceptions. But they are currently included in redistricting schemes. Localities that have more children would lose out; localities with aging populations would likely gain power. Whether this benefits any particular group is debatable. But to the extent there's a "fertility gap," in that Republicans tend to have more children than Democrats, it likely would also diminish Republican power. (Further complicating this analysis, of course, is that minorities tend to have children at higher rates than whites.) Taking California congressional districts as an example (assuming the case would be extended to congressional districts, but it's a useful data point because of the ease of obtaining Census data), the results are stark. There are just 91,000 under-18 residence in CD-12 (held by Nancy Pelosi, Democrat), but almost 227,000 children in CD-21 (David Valadao, Republican). Thousands of voters would be shifted out of districts like Pelosi's and into districts like Valadao's. (Further, it might also be the case that the shift from child-filled districts to elderly or childless districts would result in more substantive changes in political outcomes, including shifting of spending away from education toward end-of-life care or sustaining pensions.)
• Robust expansion of the Census Bureau's duties. If such granular data is required before states can draw districts, the Census is going to have a much bigger job. As it is, there have been instances where conservatives have opposed the existing breadth of the Census survey.

These are, of course, projections and guesses and possible results. But they are much deeper than the original "Latino loss, Republican gain" picture originally suggested. (I've written about the "invisible federalism" that underlies the political structure of the Electoral College, for example, as a result of our system of apportionment of representatives, includes some meaningful choice in jurisdictions about voters and non-voters.)

These potential ramifications come with an extremely important caveat (which, of course, I save until the end). It's not entirely clear what a system of redistricting based on "voters" would necessarily look like. The appellants in Evenwel seem to offer at least three possibilities before the three-judge panel: citizen voting-age population, total voter registration, and "non-suspense" voter registration. If the Court did decide that voters was the proper metric, but allowed flexibility within that regime, then redistricting would change based on citizenship status and age, but not felon prison population; however, a more narrow holding, or a state choice to use something narrow, would impact prison gerrymandering.

But even under the most generous Supreme Court interpretation in favor of appellants, I find it hard to believe that states would be allowed to continue to include vast numbers of imprisoned ineligible voters contained in a very tiny geographic area. And (regardless of the merits of this or any other impact on redistricting) that, I think, would be a fairly significant impact of Evenwel--and certainly not the one that either appellants or most commentators have really identified.

My commentary on Evenwel v. Abbott at the Online Library of Law and Liberty

I have a piece at the Online Library of Law and Liberty today on Evenwel v. Abbott, a challenge to Texas's state legislative redistricting system that draws districts on the basis of total population instead of voters. It concludes:

Texas, along with the other 49 states, has remained free to adopt one of several theories of representative government within the confines of Reynolds v. Sims. But Evenwel threatens not only to deprive the states of their authority to do so, but also to impose a standard that is squarely at odds with the structural design of the Constitution: representative government includes representation of all persons, not simply voters.

Scholarship on "natural born citizen"

The Katyal & Clement piece on the meaning of "natural born citizen," which I recently covered on this blog, has received some attention. Perspectives from Michael Ramsey, David Upham, and Peter Spiro contain a wealth of information. Check them out!

Rand Paul, Ben Cardin re-introduce ex-felon enfranchisement bills (with one glaring error)

Last year, I discussed Senator Rand Paul's proposal to enfranchise some ex-felons in some elections, and Senator Ben Cardin's broader proposal.

Both have reintroduced their bills this year: Mr. Paul's is S. 457, and Mr. Cardin's is S. 772. Neither changes a word, except for the years introduced.

That's disappointing at the basic level that my (obviously wise and salient) critiques were never addressed in the new drafts of the bill. That's largely, I suppose, because the drafts aren't "new," but simply recycled from last term--and, probably more significantly, because this little blog is more for sorting out my own thoughts than for rewriting federal legislation.

That said, both bills include a glaring error.

Recently I noted that Representative Jim Sensenbrenner's reintroduction of the Voting Rights Amendment Act contained no "substantive" changes. That said, it did include a procedural change: it amended all references to prior election law provisions to reflect their new home in Title 52.

Mr. Paul's and Mr. Cardin's bills, unfortunately, contain the old Title 42 references when referring to other election law provisions in the federal code.

Kudos to Mr. Sensenbrenner's staff for careful attention given to the reintroduction of his election law bill.