The Equal Protection Clause of the U.S. Constitution's Fourteen Amendment has been the grounds for most of the contests against unfair representation. Over three decades ago, the U.S. Supreme Court found equality of population an essential element of electoral districting. The "one person, one vote" principle has virtually eliminated all race-based discrimination in drawing electoral boundaries.
The Court has even discarded established county lines and arguments against applying the principle to state legislative bodies. On similar grounds, the Court has ruled that racially segregated facilities, even if comparable, are not equal under a law that explicitly discriminates.
What the Court has not yet done is to consolidate the "separate, but equal" principle with the equality of representation issue, nor to expand the principle to other varieties of difference or deference in apportionment.
The Fair Vote 2K Initiative expands these principles to include any distinctions among voters, whether based on race, national origin, sex, voting history or party registration. By automating the apportionment process, it also excludes distinctions based on the county of residence, rural or urban boundaries and other artificial criteria that enhance or diminish the political power of any person.
The proposed amendment to the California Constitution represents the next and final step toward a full implementation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution to the apportionment issue.
The Supreme Court initially found that the right of suffrage is denied by debasement or dilution of a citizen's vote in a federal election. The Equal Protection Clause, they said, requires substantially equal legislative representation for all citizens in a state, regardless of where they reside. In subsequent decisions2, the Court applied that rule to representation in state assemblies.
Racially based gerrymandering has been found unconstitutional on multiple occasions3, though the Court has wavered as to the degree of gerrymandering allowed to compensate for past discrimination.
California's Proposition 209 eliminated detrimental or deferential treatment based on race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. It did not specifically address apportionment, nor other grounds for affirmative or detrimental treatment.
The U.S. Supreme Court addressed the "separate but equal" issue for school districts and other public facilities decades ago, finding that separate is, by definition, unequal. But it has not directly applied this principle to district apportionment, nor expanded it beyond the most egregious methods of discrimination. The principle nevertheless applies. When the law is differential or deferential by any classification, the people of that class are unequally injured or benefitted.
In district apportionment, there are several classes that have been acceptable differentials, justified by some actual or imagined aspect of their condition. Most common, for many decades, was deference to local county boundaries. This preference was found, at least in many southern states, to be an unworthy impediment to establishing equal population districts.
Both rural and urban areas seek to have their bounds distinguished in the apportionment of state and federal offices. Whether either group benefits, and at whose expense, is an open issue.
Decades ago, when geographic features were major impediments to transportation and communication, they were considered proper and reasonable guides for electoral boundaries. Census tracts still retain the residual elements of both geographic and county boundaries. However, a compilation of multiple tracts to attain the necessary population make these characteristics less relevant in district boundary definitions.
The only remaining issue is whether certain persons are treated unequally due to political considerations in the drafting of district boundaries. There is no doubt that the residents of a district constructed as a "safe seat" will benefit from the likely seniority of their re-elected member. It is also evident that persons in a competitive district enjoy less power and influence than their neighbors. To pretend that the two persons receive an equally treatment under the law is a thin veil of deceit. Therefore, the Initiative excludes previous voting history and registration as a factor in the determination of district boundaries.
That there will be some districts with larger party percentages than others is not relevant, so long as the methodology does not carry an inherent preference or deficiency that intends to cause unequal treatment. The automated method of the Initiative precludes any such intent, instituting truly equal ethnic and political representation in all electoral districts.
Refer: Supreme Court Decisions
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