Aaron Hernandez's family may not be able to sue NFL over concussion-related issues

Aaron Hernandez was a former tight end for the New England Patriots. He was accused of murder, convicted, and committed suicide while in prison. It was just disclosed that he, a 27-year-old man, suffered from severe chronic traumatic encephalopathy, associated with concussions among football players. His family has filed a lawsuit against the National Football League.

But, they probably can't do that. (Well, I suppose they can file a lawsuit, but they probably can't win it.)

The NFL negotiated into a class action settlement a few years ago, and refined it, to settle all concussion-related and head injury-related lawsuits among its players. The payout would total about $1 billion, all told, with the bulk of it cash to former players.

It extends to all player who were retired as of July 7, 2014--Mr. Hernandez last played in 2012, so he'd fit this definition.

Players (and their families) had an opportunity to opt out of the settlement, but, as far as I can tell, Mr. Hernandez never did.

The biggest value to the NFL includes the preclusive effect of the settlement--that is, as a condition of handing out cash to former players and their families, the plaintiffs must agree not to sue the NFL for any related lawsuits. Section 18 of the settlement agreement includes broad provisions, typical of a class action settlement, precluding litigation over any concussion-related or head injury-related lawsuit.

In short, Mr. Hernandez's family probably can't successfully sue because their claims are all wrapped up in the concussion class action settlement. Because they didn't opt out, they're bound by it. So go class action litigation and settlements.

There are some challenges pending to the adequacy of the class action settlement, but those challenges have been losers so far, and I find it difficult to believe they'll succeed. There is a chance, too, that Mr. Hernandez's family might find a creative way to attack the judgment. But I think those are probably unlikely to succeed. Class action settlements have significant preclusive consequences, and the Hernandez lawsuit is simply a high-profile demonstration of what those consequences look like.

UPDATE: I've read reports that some believe Mr. Hernandez is not covered because he was not "retired." That is, he was young and, if he had been found not guilty, could have returned to seek a contract. The definition of "retired" almost assuredly covers him in at least two respects (and I've excerpted the relevant portion below). First, the New England Patriots cut him in 2013, and he was no longer seeking active employment. Second, he may have been deemed to have "informally" retired once he was cut from the team and facing criminal charges. I find it hard to believe that does not fit the definition. Indeed, some additional reporting suggests that just such a finding of CTE would make it easier for his family to collect from the class action settlement.


Would Jesus oppose partisan gerrymandering?

The title may be slightly glib, but a biblical allusion caught my attention as I was reading the briefs in Gill v. Whitford, the partisan gerrymandering case before the Supreme Court. The reference appeared in the amicus brief of Heather Gerken, Jonathan Katz, Gary King, Larry Sabato, and Sam Wang--an impressive lineup, to be sure! The biblical references occur in a passage about the ubiquity of the principle of symmetry:

While modern discrimination law is replete with examples of symmetry standards, the principle’s roots are ancient. One finds, for instance, examples in Judeo-Christian ethics, Genesis 13:8-9; Matthew 7:12. The notion of turning the tables is so powerful that it is a canon of literature, William Shakespeare, A Mid-Summer Night's Dream; William Shakespeare, Twelfth Night; Mark Twain, The Prince and the Pauper (1881), music, W.S. Gilbert & Arthur Sullivan, H.M.S. Pinafore (1878), and moral philosophy, John Rawls, A Theory of Justice 73-78 (rev. ed. 1999). This measure of fairness is deployed across cultures. See Cinderella Across Cultures (Martine Hennard Dutheil de la Rochère et al. eds. 2016); Heather K. Gerken, Second Order Diversit, 118 Harv. L. Rev. 1099, 1146 & n.124 (2005) (discussing Japanese tradition). Even children rely on the time-honored strategy of “I cut, you choose.”

So, no, the brief is not about whether Jesus would support or oppose partisan gerrymandering. Instead, it is a biblical allusion to the principle of symmetry.

Matthew 7:12 is the "Golden Rule": "So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets."

Unfortunately, I think this gets symmetry wrong--the Christian faith, rightly understood, including the Golden Rule, is quite asymmetrical.

Consider the Golden Rule itself: it is to do to others as you would wish they would do to you. There is no expected return from others. Indeed, there is a likelihood that others would not reciprocate. But there is no expectation of anything in return for those who adhere to the Golden Rule. The command from Jesus is to do without any expectation of anything in return. The Golden Rule can be misconstrued as anticipating or expecting some kind of mutual respect toward one another. It isn't that, as much as we might want everyone to respect one another. Instead, it is about the radical self-giving of the Christian to all others--giving, without expecting anything in return.

The brief offers the simple summary of symmetry: "Partisan symmetry is a deeply intuitive standard for measuring discrimination. It asks a simple question: what would happen if the tables were turned?" But, I think, the Gospels are replete with expectations for the Christian tradition of asymmetrical treatment and expectations.

From earlier in the Sermon on the Mount in Matthew 5, for instance, Jesus expressly rebukes a "turn the tables" standard: "You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also. And if anyone would sue you and take your tunic, let him have your cloak as well. And if anyone forces you to go one mile, go with him two miles. Give to the one who begs from you, and do not refuse the one who would borrow from you."

This, of course, doesn't mean that principle of governance can't be dictated by norms like symmetry. The brief is correct that symmetry has an extensive legal and non-legal tradition. (Indeed, the "eye for an eye" reference was omitted, surely a strong symmetrical standard!) And it might be that in establishing rules pertaining to representative government, symmetry is a sensible standard.

But, it is to suggest something slightly more modest. Biblical allusions can be a valuable device in making a persuasive argument. But precision of understanding biblical claims is, perhaps, just as important.

Tribe, Chemerinsky explain why their own Emoluments Clause lawsuit against Trump should be dismissed

I don't have terribly strong thoughts on the Foreign Emoluments Clause. I don't have strong thoughts on whether the Clause applies to the President (but I left open the possibility in an article I published in 2015). If the Clause does apply to the President, I don't have strong thoughts on what an "emolument" might include. And I certainly don't have strong thoughts on whether Donald Trump's business activity, as a matter of fact, is prohibited under the Clause.

But after learning that a lawsuit was poised to be filed by "a team of prominent constitutional law scholars," alleging that Mr. Trump is in violation of the Clause, my first question was: do these scholars have standing to bring such a claim?

In order to answer my question, I thought I'd check to see what these scholars had to say--at least, what they had to say before November 8, 2016.

The plaintiff in this case is a group called the Citizens for Responsibility and Ethics in Washington ("CREW"). Before a plaintiff can bring a claim, it's pretty basic Federal Courts stuff to note that the plaintiff must have standing to bring the lawsuit. That includes a particularized injury. A "generalized grievance" is not enough--that's something appropriate for resolution in Congress, not the courts.

While litigation under the Foreign Emoluments Clause is pretty rare, we at least have some good precedent under the Legislative Emoluments Clause to inform what constitutes a "generalized grievance."

Erwin Chemerinsky, the dean of the University of California-Irvine, is representing the plaintiff. Here's what he described about standing under the Legislative Emoluments Clause in his Federal Jurisdiction treatise:

Laurence Tribe, a Harvard professor, is another attorney representing the plaintiff. Here's his description in the third edition of his treatise on Constitutional Law:

There are many ways that the Foreign Emoluments Clause might be enforced. One obvious path would be impeachment, if Congress found that Mr. Trump was in violation. Another, as Andy Grewal has suggested, might creatively occur in a judicial setting after Mr. Trump leaves office.

But these hornbook examples from Professors Chemerinsky and Tribe demonstrate the high likelihood that this case will be dismissed. Simply put, there's nothing that distinguishes CREW from an ordinary citizen--there's no particularized injury, and their injury is simply a generalized grievance that the public at large shares. The resolution for such a dispute, then, does not lie with the judiciary.

UPDATE: Josh Blackman has more here.

How recounts in presidential elections work under Pennsylvania, New Hampshire law

Tonight, or this morning, a number of elections are particularly close. From my own guess, I think the margins in Pennsylvania (20 electoral votes) and New Hampshire (4 electoral votes) look to be the closest. In the event that these elections prove to be decisive in a presidential candidate's quest to secure 270 electoral votes, recounts are likely. (Of course, if a candidate concedes, or if the margins become unrealistically large, or if there are still more tipping point states, or there are others, this prediction is sure to be wrong!)

Many recount procedures begin administratively through the Secretary of State or an election board. It's worth noting with any contested election that usual basis for filing a claim is in state court. For all the attention given to federal causes of action, the ordinary act of recounting is typically reserved to state courts. In Florida in 2000, the federal issues were raised as a counter to the procedures implemented by state courts; they were not originally federal causes of action. It's likely, then, that we would expect basic recount procedures to arise in state court; federal claims could arise in that context. It's less likely that claims would originally be filed in federal court, but there are plausible scenarios where it might happen (and where federal courts would not abstain from exercising jurisdiction, another issue!), but I'll focus on the state-based claims at the moment.

It's also worth noting that after Bush v. Gore, the key deadline this year is December 13. That's the date set by federal law for presuming the regularity of the election results in Congress. Most opinions in Bush v. Gore recognized that this deadline was an important date for a state to meet (although some disputed how important or what procedures should take place in the late days before that deadline). Any litigation, then, would occur with an eye toward that date.

Below are the general timing and triggers for basic recounts, but there are obviously many more conditions and opportunities that can arise beyond these. But as we hardly know if there will be challenges, much less here, I'll stick with a couple of bare outlines of order and timing.


An automatic recount is triggered under Pennsylvania law if the margin of victory is one-half a percentage point or less. (25 Pa. Stat. § 3154(g)(1)(ii)) (There is no recount if the losing candidate requests no recount.) The Secretary issues an order by 5 pm ET November 17. (25 Pa. Stat. § 3254(g)(2)) The recount and recanvass must be finished by noon ET November 29. (25 Pa. Stat. § 3254(g)(5)) (Some more background is here.)

New Hampshire

There are no "automatic" recounts in New Hampshire, but parties can petition for a recount if the margin is less than 20%. (N.H. Rev. Stat. § 660:1) (Some more background is here.) A candidate must file a petition by November 11. The process to recount must begin by November 16. (N.H. Rev. Stat. § 660:4)

In which I confess I have little concern that an 8-member Supreme Court is asked to resolve a presidential election dispute

There have been many who've expressed great concern that an 8-member Supreme Court would be asked to resolve a dispute this presidential election, and that dividing 4-4 would be a nightmare. I confess, I have little concern for this scenario. Indeed, on Twitter, I went so far as to say "zero concern." I'd like to build on that here.

As a predicate, it's worth noting that I have a strong sense that courts should often refrain from entering the political thicket in election law matters. The contours of that can vary, of course. But I've written on disputes concerning Mary Landrieu's residency and Ted Cruz's eligibility; weighed in on Evan Bayh's residency and moves to pull Donald Trump's name from the ballot; and written academic commentary on judicial involvement in presidential and congressional elections, including the 2016 presidential election, and the redistricting process. Consistently, across these cases, regardless of partisan benefit, I've suggested judicial involvement is not preferred and the political process is better. I do not always think so, and the context of a case before the Court would affect my views, of course, but I have tended to prefer political solutions to judicial ones in election disputes, particularly in presidential elections, and even more particularly where there is some specific authority lodged in Congress to resolve such disputes (more on that soon).

First, the issue, I think, is more often a stalking horse for the pending nomination of Judge Merrick Garland to replace Justice Antonin Scalia. "#WeNeedNine" enthusiasts ardently claim the Senate should confirm the President's nominee. I make no claims regarding that process here--there are, of course, good reasons for the Senate to consider a president's nominee and ensure that the statutory number of seats on a court are filled. Instead, I simply examine the potential complications of an 8-member Supreme Court. (And while this line of argumentation is more a consequentialist claim, I find the stronger basis for argument to be more normative claims about the nomination process, advising and consenting, timing of judicial nominees in election years, and so on. More on the consequentialism claim--which I think is fairly low, anyway--in a bit. )

Second, even in the event of a 9-member Supreme Court, there are still risks of an 8-member Court tasked with hearing a dispute this presidential election--specifically, because Justice Ruth Bader Ginsburg made comments about Donald Trump and this presidential election that may invite a call for her to recuse in such a dispute. Indeed, an 8-member Court would make a recusal case easier, because it would then become a 7-member, and odd numbered, Court. But, again, given how little attention has been given to this component, it strikes me that concerns are, again, more as a stalking horse for another issue (i.e., the nomination of Judge Garland), rather than addressing concerns about what might happen in a disputed presidential election.

Third, Bush v. Gore was truly extraordinary, and unusual, for a presidential election. There's a kind of fascinated anticipation of an apocalyptic disaster that would lead to such a dispute recurring. But perhaps I'm simply more realistic about the odds of such a scenario recurring. I think the chances are exceedingly small--even if it's happened before, and even if this election is ostensibly close, and even if we have heard loud rhetorical cries of "rigged" elections that would inspire litigation.

In part, it's because there must be an election where sufficient electoral votes are in dispute because of a sufficiently close margin in those jurisdictions. When it's a single state, like Florida in 2000, that would be the tipping point of the election, and the margin of error is close enough to call for a recount, is the limited situation where such disputes are likely to arise. While New Mexico in 2000, in which Gore's margin of victory was 0.061%, was also quite close, flipping that state would be meaningless, and, therefore, why litigation was not a concern there. So part of the reason I have little--or zero--concern is because I do not believe the election will be particularly close in enough jurisdictions to matter. Of course, such predictions are sure to go wrong, but it's a reason my concern remains low.

Fourth, the legal claims would have to be of the type that would change the outcome of the election. Even a margin of 0.1% is a fairly fantastic deficit to overcome in even the most generous of recount regimes. It is almost impossible to win a recount in a close election simply because of the sheer volume of things that must cut the loser's way. Litigation may be likely, then, in a close election. But litigation that in any sense would likely succeed is even far less.

Fifth, even if there were a factual scenario along the lines of Bush v. Gore, of a tipping-point jurisdiction with a narrow margin of victory, lower courts, and parties, would know much more about what to anticipate ahead of that dispute. For instance, December 13 is the "safe harbor" date for states to submit their slates of electors with presumed regularity under the Electoral Count Act, a point that drew a great deal of attention in Bush v. Gore. Remedies would be geared with greater speed toward that date than in the past and alleviate the very late concerns.

Sixth, in the event the litigation began in state court, as it did in Bush v. Gore, and a state supreme court offered the final word on an issue in state, it's not immediately obvious that the Supreme Court would feel the need to weigh in. It's not clear that some of the more moderate member of the Court, or those with a longer view of the Court's institutional role, such as Chief Justice John Roberts, Justice Anthony Kennedy, or Justice Stephen Breyer, would advocate for hearing a petition from that state court. True, it happened in 2000. But it might be the case that they would simply leave the lower court judgment alone, regardless of the partisan impact, and, if other members of the Court acted in a more partisan fashion, then there would not be enough votes to grant certiorari.

Seventh, in the event a case came before the Court that failed to heed the lessons in previous litigation, it would assume that the Court would split in a 4-4 fashion along partisan lines (and assuming Justice Ginsburg does not recuse). While we deeply politicize all issues on the Court these days, especially when thinking about issues with overtly partisan outcomes, it's not obvious that the posture of the case would lend itself toward obvious partisan outcomes, and history shows that few cases are ever decided by an equally-divided court. So it is not obvious that even a consequentialist concern is sufficient to give rise of notable worry.

Eighth, even in the event the Court sends the case back by a 4-4 vote... what, exactly, is the harm? That a state supreme court or a federal appellate court has had the last word on a federal issue? They have had the last word on many such issues, even in many election cases. The fact that this is a presidential election somehow means that people expect, or long for, the Supreme Court to weigh in. But perhaps the narrative could differ, if only someone would advocate for a different narrative! That is--lower courts, and state courts, decide important issues all the time, and the Supreme Court does not frequently intervene in those disputes. That's okay, and, perhaps, good!

It is also complicated by the fact that, in all likelihood, the outcomes in 50 of the 51 jurisdictions sending electors to Congress, whereas this one last jurisdiction--and the tipping point jurisdiction--is in dispute. The fact that one state effectively decides the presidential election has great rhetorical impact. But it is, in reality, what has also independently happened in those many other less-controversial states that matters just as much. And it is really about this one state's resolution of its election--even if it has a national impact. Many election have a "national impact"--consider Al Franken's victory in Minnesota in 2008 after extensive litigation that ensured that Democrats would control 60 seats in the Senate, a filibuster-proof majority. That also had a "national impact," and the United States Supreme Court didn't weigh in. Yes, it's not the presidential election, but an element of analogy still stands.

Ninth, even if the lower court ruling stands, it is unlikely that a Supreme Court ruling from nine justices would actually affect the outcome. Recall, of course, that if the case is a close issue, there's, say, something in the neighborhood a 50% chance that the Court affirms the lower court. (And in the event it isn't a close issue, then it wouldn't even deadlock at 4-4, as raised in the seventh point above.)

Tenth, Congress is always in a position to ignore what the Court said anyway! Congress has power to count the electoral votes. It has provided for a mechanism to handle objections to the counting of electoral votes. Objections were raised in 2000 and 2004, and Congress sorted it out. Congress resolved disputed and competing slates of electors in 1960 most notably, but also at other times. And while some have suggested that the Electoral Count Act is unconstitutional, in the event it were ever challenged, everyone agrees that Congress has the power to count, and to develop the process for counting, electoral votes.

Reserving to Congress the power to resolve a disputed presidential election is emphatically the textual commitment of the Constitution. It lays out mechanisms for Congress to choose the president in the event no one secures a majority, most obviously. But in the event it is faced with competing slates of electors, or a question about the results, it is in a position to handle this process--perhaps it didn't handle it very well after 1876, and perhaps it wouldn't handle it after this year's election, but it is worth taking seriously Congress's role without devolving to the judiciary.

In sum, I recognize that there is, of course, the chance for a perfect storm--for a narrowly-contested election in a tipping-point jurisdiction (or jurisdictions) that leads to federally-disputed litigation demanding Supreme Court involvement, where the Court takes the case and is evenly divided by a 4-4 margin. But I have simply concluded that that chance is exceedingly small; and, in the event it occurs, is not terribly noteworthy given that lower courts are quite capable, the low likelihood a ninth justice would affect the outcome, and that Congress always retains the power to review the results regardless of judicial involvement.

I hardly consider myself a pollyanna--I anticipate litigation, of course, and heated rhetoric, and sore losers, and some series of apocalyptic claims of "rigged," "suppression," "fraud," "intimidation," and the like, whether right or wrong, over the next few days. But it's simply that, when I assess the contingencies I laid out above, I have little concern that an 8-member Supreme Court is asked to weigh in on a disputed presidential election.

Tenth Circuit reverses course, finds no standing for legislators in Guarantee Clause challenge

It's been quiet in the ongoing saga of Kerr v. Hickenlooper, a Guarantee Clause challenge to Colorado's requirement that legislative tax increases be approved by popular vote. The United States Supreme Court remanded the case in light of Arizona State Legislature v. Arizona Independent Redistricting Commission, which concluded that the state legislature of Arizona did have standing to bring a challenge to the authority of an independent redistricting commission. As I noted a year ago, "This, I think, portends poorly for the legislators" bringing the claim here, because they brought their claim as individual legislators, not as the institution of the state legislature.

Sure enough, on remand, the Tenth Circuit concluded the same on Friday. "We now conclude that these individual legislators lack standing because they assert only an institutional injury." The opinion tracks the argument in Arizona State Legislature--and, in my view, the argument that should have been successful even before that case.

Has Congress been improperly counting prisoners in the Census since 1790?

Following up on yesterday's take on the Rhode Island "prison gerrymandering" case, a few more thoughts come to mind.

The district court linked apportionment to redistricting (as the Supreme Court in Evenwel did), identifying women, children, slaves, and other non-voters as appropriately included within the apportionment base. The court went on

The inmates . . . share none of the characteristics of the constituencies described by the Supreme Court. They don't have a stake in the Cranston public school system and they are not receiving constituent services, such as help with public-benefits bureaucracies. They are not making requests of and suggestions to Cranston elected officials (or if they are, they are receiving no response), nor are they receiving "the protection of government," at least not from Cranston elected officials.

The Census Bureau has, since 1790, counted prisoners as residents of the place where they are incarcerated. When Congress apportions members of Congress to the states, it includes those prison populations--even if a number of the prisoners come from out-of-state.

Does this mean Congress has been unconstitutionally apportioning members of Congress since 1790? That prisoners should have been counted as residents of their home states for the last 220 years, and Congress has simply got it wrong this whole time?

Surely, the swift rejoinder to this claim is that very few long-term prisoners were included in a Census, much less out-of-state prisoners, until recently. But this was the same claim raised by the plaintiffs in Evenwel--that the United States had a very small non-citizen population until recently, a claim that was soundly rejected.

Further, the analogy of apportionment to redistricting grows even worse when one considers redistricting itself--where should prisoners be included for redistricting purposes?

Suppose one makes the claim that prisoners should be located as residents of the address they resided at before being incarcerated. Does this somehow cure the concerns raised by the district court? Suppose you are an incarcerated prisoner in Cranston who was originally residing in Providence. Do you suddenly "have a stake in the Providence public school system"? Do you "receiv[e] constituent services"?

The dangerously overbroad language from the district court would effectively make prisoners invisible! If they are constitutionally forbidden from being considered members of the political community where they are incarcerated, surely considering them members of the political community where they last resided is even more attenuated. It risks making prisoners invisible, uncounted members of any political community.

Instead, the better claim--and it is not a terribly good constitutional claim at that--is that this artificial concentration of non-voters into a single location is suboptimal for other voters in adjacent districts, and an attempt should be made to more naturally redistribute those non-voters in some way.

But this is not a constitutional claim. It is simply a way--perhaps a better way--of drawing districts. But the Supreme Court's decision in the "one person, one vote" cases imposed a one-size-fits-all requirement to redistricting. And rhetoric in cases like this Rhode Island prison gerrymandering case further complicate any meaningful understanding of what that mantra means.

The revival of the Three-Fifths Clause in a Rhode Island prison gerrymandering case

A federal district court handed down a memorandum and order for summary judgment in Davidson v. City of Cranston, a case concerning "prison gerrymandering" in Rhode Island. The court concluded that the city improperly drew districts that included all of the incarcerated individuals in a prison into a single district, distorting representation and voting strength in other districts.

One might have concluded that the Supreme Court's recent decision in Evenwel v. Abbott mandated this case come out the other way. There, the Court permitted Texas to use total population in drawing its districts, even if it included non-citizens (i.e., non-voters) in its population base. Had the case come out the other way and some voter- or citizen-based measure been required for drawing districts, prison gerrymandering may well have ended.

As Adam Liptak and others noted, a win for Texas in Evenwel would deeply undermine constitutional arguments against prison gerrymandering. After all, prisoners are people ineligible, just like non-citizens or children. They're drawn into districts with the rest of the total population. Instead, one must come up with a political theory for excluding this set of non-voters from redistricting, but not other sets of non-voters.

In a recently-published article in the Harvard Journal of Law & Public Policy, Perpetuating "One Person, One Vote" Errors, I highlight the deep problems that arise when courts attempt to insert ever more-detailed theories of political representation into the constitutional doctrine of "one person, one vote." Mercifully, I remarked, the decision in Evenwel leaves some discretion to the states (and cities) in redistricting.

But the decision in Davidson takes away some of this discretion. And it does so using bizarre support from the Three-Fifths Clause. It even suggests prisoners are less worthy of representation than slaves.

To start, one has to make a pair of logical inferences to get from the Court's theoretical findings in Evenwel (and its predecessors) to this case. As I explained at the George Washington Law Review Docket, the Court linked the theory of apportionment of congressional representatives to the reason for drawing equal numbers of people in congressional districts, and then linked that finding to the reason for drawing equal numbers of people in other non-federal districts. It opens with this theory of apportionment--how many congressional representatives should each state get? As the Davidson court explained:

In its review of the drafting history of the Constitution and later the Fourteenth Amendment, the Supreme Court repeatedly stresses the prevailing view that women, children, slaves, tax-paying Indians, and non-land-holding men (in some areas) all deserved representation - though none of these groups could vote.

That syncs with the Court's holding in Evenwel:

In other words, the basis of representation in the House was to include all inhabitants - although slaves were counted as only three-fifths of a person - even though States remained free to deny many of those inhabitants the right to participate in the selection of their representatives. Endorsing apportionment based on total population, Alexander Hamilton declared: "There can be no truer principle than this - that every individual of the community at large has an equal right to the protection of the government."

One must appreciate a serious concern here--the Three-Fifths Clause. By including slaves (albeit fractionally) in the apportionment base, the South would receive dramatically more political power in the House than if slaves counted as zero-fifths.

But one should not seriously claim that the Three-Fifths Clause somehow means that slaves were virtually represented by their masters--that voters in the South somehow were protecting slaves through their votes! Instead, as I've pointed out in another piece, one justification commonly raised by the Founders for including slaves in the apportionment base was a notion that it was a proxy for wealth. Population (and slave total) meant roughly the wealth in an area; and more wealthy (or more "productive") areas should have more political power.

Such political theory likely would not garner much support today--indeed, it has been expressly rejected in the "one person, one vote" line of cases. (This is also a major reason Justice Alito wrote separately in Evenwel--he viewed the apportionment question as distinct from the question of drawing districts.) But the only way for "one person, one vote" to work is if one adopts a kind of theory of "virtual representation," where the elected representatives serve the entire population of the region, regardless of whether they are eligible to vote. (Indeed, the Court in Evenwel expressly made this point concerning children.)

The district court's next findings, then, are fairly breathtaking:

The inmates . . . share none of the characteristics of the constituencies described by the Supreme Court. They don't have a stake in the Cranston public school system and they are not receiving constituent services, such as help with public-benefits bureaucracies. They are not making requests of and suggestions to Cranston elected officials (or if they are, they are receiving no response), nor are they receiving "the protection of government," at least not from Cranston elected officials.

Really? First, descriptively, this is false at almost all levels. A quick look at Kramer v. Union Free School District No. 15 offers myriad ways (in the right-to-vote context) someone can "have a stake" in the public school system--merely being "interested in" the school board as a resident may be enough, or the note that "[a]ll members of the community have an interest in the quality and structure of public education," which may have "grave consequences to the entire population." Prisoners may write letters to representatives--even if they are not, they are able to do so. It may well be that these are still pretty weak reasons for including prisoners in a district; but that is a far cry from saying that they are constitutionally forbidden from being included in a district.

Second, it rather brazenly suggests that eighteen-century slaves were better represented, and better deserving of representation, than twenty first-century prisoners. How else is one supposed to construe the phrase that "the inmates . . . share none of the characteristics" of "slaves"? It turns the Three-Fifths Clause into a rather favorable view of representation. Justice Alito's concurring opinion in Evenwel is perhaps wise guidance on the Three-Fifths Clause. But its failure to carry a majority of the Court leads to curious decisions such as this.

It may well be the case that Rhode Island and other states should include incarcerated persons in the districts where they last resided. It makes sense to me, as a political matter. As an administrative matter, it also seems to be sensible to include the easy total of the prisoners in the prison where they reside. Indeed, that's how the Census counted them in 2010! It becomes a fairly significant task, then, to create a new population total for redistricting, one that the Census Bureau does not provide. (Indeed, this was a major claim raised in Evenwel.)

But for a federal court to make the claim that slaves were favorably represented in apportionment while prisoners ought never be included in redistricting is a deeply problematic claim. The "one person, one vote" line of cases cannot sustain such decisions of representation equality or political theory, which are best left to the political process.