I have posted an early draft of a forthcoming article in the Harvard Journal of Law & Public Policy, Perpetuating "One Person, One Vote" Errors. It picks up on some of my previous critiques of Evenwel v. Abbott, the redistricting case the Supreme Court will hear next week.

I dug into some of the history of the early redistricting cases, especially Baker v. Carr, Reynolds v. Sims, and Burns v. Richardson. I did a fair amount of archival research at the Library of Congress on these cases. I was somewhat surprised to find that the justices' own clerks were advocating for narrower positions than those ultimately reached by the Court. Time and again, the Court eschewed narrower holdings in efforts to provide a very broad principle of "one person, one vote" that would ultimately compel "that the seats in both houses of a bicameral state legislature must be apportioned on a population basis." Evenwel is a dispute about whether to require still more from state legislatures.

One of the best findings from the archival research includes an omitted footnote from an early draft Burns v. Richardson. In Burns, the Court permitted Hawaii to draw its legislative district on the basis of registered voters rather than total population. But a footnote, later omitted, explained the circumstances that would justify a basis for drawing state legislative districts:

Thus, one State may stress that the role of a representative is to serve the entire community from which he comes, whether or not all its members are or ever will be eligible to participate in the electoral process. It may assume that those who are ineligible to vote will find “representation” in the voting booth through those who are eligible, as children do through their parents, and will find other ways to participate in the political process or share the burdens of government. Another may consider that a representative is more likely to respond to the needs of those who are or may be eligible to vote for him than to the needs of ineligibles. Voters residing in areas of the State where there are unusual percentages of ineligibles might appear from this perspective to have enhanced voting power if a total population distribution were used. . . .

This footnote, which would largely settle much of the dispute in Evenwel, was omitted within two weeks of the final opinion. I have posted a scan of the document on Scribd here. While not the Court's holding, and hardly its dicta, it captured my interest.

Comments on the article are quite welcome!