Skip to content

Judicial Watch • Evenwel v Abbott 940 Amicus Texas Voting

Evenwel v Abbott 940 Amicus Texas Voting

Evenwel v Abbott 940 Amicus Texas Voting

Page 1: Evenwel v  Abbott 940 Amicus Texas Voting

Category:Legal Document

Number of Pages:17

Date Created:March 5, 2015

Date Uploaded to the Library:March 30, 2015

Tags:Evenwel, population, malapportionment, Equal, constitutional, Const, citizens, Western, protection, Amicus, Illegal Immigration, texas, Supreme Court, states, district, court


File Scanned for Malware

Donate now to keep these documents public!


See Generated Text   ∨

Autogenerated text from PDF

No. 14-940 THE
Supreme Court the United States
_________
SUE EVENWEL, AL.
Appellants,
GREG ABBOTT, AL.
Appellees.
_________ Appeal from the United States District
Court for the Western District Texas
_________
BRIEF AMICI CURIAE JUDICIAL
WATCH, INC. AND ALLIED EDUCATIONAL
FOUNDATION SUPPORT APPELLANTS
_________
Robert Popper
Counsel Record
Chris Fedeli
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
Dated: March 2015
TABLE CONTENTS
TABLE CONTENTS .............................................
TABLE AUTHORITIES ......................................
INTERESTS THE AMICI CURIAE .....................1
SUMMARY ARGUMENT.....................................2
REASONS FOR NOTING PROBABLE
JURISDICTION ..........................................................3
CITIZEN MALAPPORTIONMENT RAISES JUSTICIABLE ISSUE BECAUSE
INFLICTS HARM THAT CANNOT
REMEDIED THE POLITICAL
PROCESS. ........................................................3
II.
CITIZEN MALAPPORTIONMENT
PRESENTS SUBSTANTIAL AND FUNDAMENTAL CONSTITUTIONAL QUESTION WHICH SHOULD RESOLVED
NOW.. ...............................................................9
CONCLUSION ..........................................................12
TABLE AUTHORITIES
CASES
Baker Carr, 369 U.S. 189 (1962) .................. passim
Burns Richardson, 384 U.S. (1966). .................9
Bush Vera, 517 U.S. 952 (1996) .............................6
Chen City Houston, 532 U.S. 1046 (2001) .........9
Chen City Houston, 206 F.3d 502
(5th Cir. 2000), cert. denied,
532 U.S. 1046 (2001) ..........................................10
Daly Hunt, F.3d 1212 (4th Cir. 1996) ..............10
Davis Mann, 377 U.S. 678 (1964) ..........................5
Garza County Los Angeles,
918 F.2d 763 (9th Cir. 1990),
cert. denied, 498 U.S. 1028 (1991). ....................10
Hadley Junior Coll. Dist. Metro.
Kansas City, Mo.,
397 U.S. (1970) ................................................9
Maryland Committee for Fair
Representation Tawes,
377 U.S. 656 (1964) ..............................................5
Reynolds Sims, 377 U.S. 533 (1964) ........... passim
iii
Roman Sincock, 377 U.S. 695 (1964) .....................5
WMCA, Inc. Lomenzo, 377 U.S. 633 (1964) ...........5
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. XIV, .....................................2
TEX. CONST. Art. XVII, ........................................7
TEX. CONST. Art. XVII, (repealed). .......................7
RULES
SUP. CT. ..............................................................1
OTHER AUTHORITIES
Daniel Polsby and Robert Popper, The Third
Criterion: Compactness Procedural Safeguard
against Partisan Gerrymandering, YALE POL
REV. 301 (1991) ..........................................................6
Derek Muller, Invisible Federalism and the
Electoral College, ARIZ. ST. L.J. 1237
(Fall 2012) ..................................................................2
Henry Kaiser Family Foundation, Population
Distribution Citizenship Status, available
http://kff.org/other/state-indicator/distribution-bycitizenship-status/ ....................................................12
Illegal Immigration, Population Estimates the
United States, 1969-2011, Illegal Immigration
Solutions, available http://immigration.procon.org/
view.resource.php?resourceID=000844 ...................11
Initiative Referendum Institute the University Southern California, State IR, available
http://www.iandrinstitute.org/statewide
_ir.htm. ....................................................................7
National Conference State Legislatures, Initiative,
Referendum and Recall, available
http://www.ncsl.org/research/elections-andcampaigns/initiative-referendum-and-recalloverview.aspx ..............................................................7
Nolan Malone, al., The Foreign-Born Population:
2000, U.S. Census Bureau (Dec. 2003), available
http://www.census.gov/prod/2003pubs/
c2kbr-34.pdf ..............................................................11
Thomas Emerson, Malapportionment and Judicial
Power, YALE L.J. (1962) ....................................5
Yesenia Acosta, Luke Larsen, and Elizabeth
Grieco, Noncitizens Under Age 35: 2010 2012,
American Community Survey Briefs (Feb. 2014),
available http://www.census.gov/prod/2014pubs/
acsbr12-06.pdf ..........................................................11
INTERESTS THE AMICI CURIAE
Judicial Watch, Inc. Judicial Watch nonpartisan educational foundation that seeks
promote transparency, integrity, and accountability government and fidelity the rule law.
Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and
has appeared amicus curiae this Court
number occasions.
The Allied Educational Foundation AEF
nonprofit charitable and educational foundation
based Englewood, New Jersey. Founded 1964,
AEF dedicated promoting education diverse
areas study. AEF regularly files amicus curiae
briefs means advance its purpose and has
appeared amicus curiae this Court
number occasions.
Amici believe that the decision the U.S.
District Court for the Western District Texas (the
Western District raises important issue
constitutional law concerning reapportionment and
individual voting rights which should heard
this Court. particular, amici are concerned that
the Western District ruling will allow the State
Pursuant Supreme Court Rules 37.2 and 37.6, amici state
that all parties received timely notice the intent file this
brief, and all parties granted consent. addition, counsel
for party authored this brief whole part; and
person entity, other than amici and their counsel, made
monetary contribution intended fund the preparation and
submission this brief.
Texas intentionally assign unequal value the
votes different citizens. Such result denies
Texas citizens the one person, one vote guarantee the Equal Protection Clause the Fourteenth
Amendment. U.S. CONST. amend. XIV, Amici
are troubled the fact that Texas devaluing the
votes certain its citizens improperly
including noncitizen nonvoters when determining
the equal population legislative districts. Under
federal law and the laws all states, only
citizens may vote federal elections.2
Texas
scheme give weight nonvoting noncitizens along
with lawful voters contrary the principles
embodied citizen voting laws.
SUMMARY ARGUMENT
The issue this appeal justiciable and not
reserved the political branches. was true with
the first generation apportionment cases resolved the 1960s, the deliberate malapportionment
citizens issue this case infringes voting rights way that, its nature, resists correction the
ordinary operation democratic processes. The
intervention this Court essential uphold
Appellants constitutional rights.
This appeal presents substantial and unsettled
question regarding the appropriate metric use See generally Derek Muller, Invisible Federalism and the
Electoral College, ARIZ. ST. L.J. 1237, 1275-1276 (Fall 2012) Today, every state prohibits noncitizens from voting federal
elections. Federal law, too, prohibits aliens from voting
federal elections.
when applying the fundamental constitutional
principle one person, one vote. This Court
guidance necessary prevent the tactical,
partisan use citizen malapportionment dilute
the votes American citizens.
For these and other reasons, amici urge the
Court note probable jurisdiction and set the case
for oral argument.
REASONS FOR NOTING PROBABLE
JURISDICTION
CITIZEN
MALAPPORTIONMENT
RAISES
JUSTICIABLE
ISSUE
BECAUSE INFLICTS HARM THAT
CANNOT REMEDIED THE
POLITICAL PROCESS.
This appeal presents the Court with
opportunity close longstanding loophole the
one person, one vote principle first articulated
Baker Carr, 369 U.S. 186 (1962). Closing this
loophole will prevent state legislators from
deliberately disenfranchising their own citizens
method exemplified Texas current Senate district
plan. This method involves holding total district
populations constant while varying the number
age-eligible registered voters. More simply put,
entails the strategic placement noncitizen
populations certain districts order dilute the
voting power citizen populations. This practice
violates the Equal Protection Clause and this Court
precedent, and should prohibited.
District malapportionment any kind falls into category electoral violations that are justiciable
precisely because they cannot remedied the
ordinary workings the democratic process. This
Court recognized this point when first ventured
into the political thicket address the equal
protection implications voting districts.
See
Reynolds Sims, 377 U.S. 533, 566 (1964). long line apportionment cases explicitly
identified the lack political remedies
justification for the Court intervention. Justice
Clark, concurring Baker Carr, explained that
the majority the people Tennessee have practical opportunities for exerting their
political weight the polls correct the
existing
invidious
discrimination.
Tennessee has initiative and referendum. The majority the voters have been
caught legislative strait jacket.
[T]he legislative policy has riveted the
present seats the Assembly their
respective constituencies, and the votes
their incumbents reapportionment any
kind prevented. The people have been
rebuffed the hands the Assembly; they
have tried the constitutional convention
route, but since the call must originate the
Assembly it, too, has been fruitless.
369 U.S. 186, 258-59 (1962) (Clark, concurring);
see Reynolds, 377 U.S. 553-54 effective
political remedy obtain relief against the alleged
malapportionment the Alabama Legislature
appears have been available. initiative
procedure exists and constitutional amendments
require three-fifths the members both houses the legislature WMCA, Inc. Lomenzo, 377
U.S. 633, 651-52 (1964) adequate political
remedy obtain relief against alleged legislative
malapportionment appears exist New York.
initiative
procedure
exists,
and
existing
malapportionment would affect elections any state
constitutional convention); Maryland Committee for
Fair Representation Tawes, 377 U.S. 656, 669-70
(1964) (several reapportionment bills failed pass
because opposition legislators from the less
populous counties, constitutional amendment was
unavailable, practical matter and seats
constitutional convention would based the
allocation seats the allegedly malapportioned
General Assembly. Davis Mann, 377 U.S. 678,
689 (1964) adequate political remedy obtain
legislative reapportionment appears exist
Virginia. initiative procedure provided for
under Virginia law. Roman Sincock, 377 U.S.
695, 706 (1964) repeated attempts reapportion
the legislature call constitutional convention
failed, [n]o initiative and referendum procedure
exists Delaware, and two-thirds both houses two consecutive state legislatures required
order amend the State Constitution. see Thomas Emerson, Malapportionment and Judicial Power, YALE L.J. 65, (1962) The problem
malapportionment one which peculiarly fits such
judicial role. For the usual methods which
majority can constitutionally gain its ends are
blocked.
The citizen malapportionment issue this
case has the same characteristics the general
malapportionment issue Baker and its progeny,
and judicial intervention justified here the
same grounds.
The creation districts with
massively unequal populations age-eligible
registered voters (albeit with the same total
populations) allows legislators weight the votes their supporters placing them districts with
fewer voting citizens. Legislators thereby acquire
the undemocratic ability increase their odds
winning elections without having actually appeal voters. Indeed, legislators gain the ability
choose themselves, least some degree; and they
acquire this power the voters expense.3
Like the first generation malapportionment
claims
addressed
Baker,
citizen
The pathology and illegitimacy self-constitutive
assemblies was discussed the context gerrymandering
Daniel Polsby and Robert Popper, The Third Criterion:
Compactness Procedural Safeguard against Partisan
Gerrymandering, YALE POL REV. 301, 305 (1991) The
members partially self-constituted legislature depend
degree upon one another rather than upon their constituents
for their tenure office. Whatever representation means,
cannot possibly mean that. See also Bush Vera, 517 U.S.
952, 963 (1996) (the result districts drawn protect
incumbents seems not one which the people select their
representatives, but which the representatives have selected
the people. (citation omitted).
malapportionment systematically distorts the
outcomes elections and immune correction
through normal democratic processes. Legislators
who depend for their electoral success the
weighted privileged votes their specially
distributed partisans cannot expected ever
equalize that distribution. was true Tennessee 1962 and
Alabama, New York, Maryland, Virginia, Delaware,
and other states 1964, voters Texas currently
have effective political remedy. Texas has
initiative process.4 Any proposed amendment the
Texas Constitution requires legislative referral
approved supermajority two-thirds both
houses. TEX. CONST. Art. XVII, Texas provision
for calling constitutional convention was repealed 1999. TEX. CONST. Art. XVII, (repealed).
This case presents justiciable question which
requires this Court involvement. 1962 and
1964, judicial intervention necessary correct
electoral imbalance that will not fixed holding
elections.
This imbalance inflicts grave constitutional
injury. Texas created districts that are equal total
population but decidedly unequal citizen
See National Conference State Legislatures, Initiative,
Referendum and Recall, available http://www.ncsl.org/
research/elections-and-campaigns/initiative-referendum-andrecall-overview.aspx (visited March 2015); Initiative
Referendum Institute the University Southern California,
State
IR,
available
http://www.iandrinstitute.org
/statewide_ir.htm (visited March 2015).
population. result, Texas apportionment
effectively gives some its citizens approximately
1.8 votes while others have only vote. See
Jurisdictional Statement Juris. Stmnt. No. 14940 (Feb. 2015) (showing maximum voting
power discrepancy 1.84). The nature the
injury here was well described this Court
another occasion:
[I]f State should provide that the votes
citizens one part the State should
given two times, five times, times
the weight votes citizens another part the State, could hardly contended
that the right vote those residing the
disfavored areas had not been effectively
diluted. course, the effect state
legislative districting schemes which give the
same number representatives unequal
numbers constituents identical.
Overweighting and overvaluation the
votes those living here has the certain
effect dilution and undervaluation the
votes those living there. The resulting
discrimination against those individual
voters living disfavored areas easily
demonstrable mathematically. Their right
vote simply not the same right vote
that those living favored part the
State.
Reynolds, 377 U.S. 532-33. the Court
concluded, [w]eighting the votes citizens
differently, any method means, merely because where they happen reside, hardly seems
justifiable. Id. 533 (emphasis added).
II. CITIZEN
MALAPPORTIONMENT
PRESENTS
SUBSTANTIAL
AND
FUNDAMENTAL
CONSTITUTIONAL
QUESTION
WHICH
SHOULD
RESOLVED NOW. Appellants have demonstrated, this case
presents substantial question. This Court should
note probable jurisdiction and set this case for oral
argument. See Juris. Stmnt. 12-16.
Indeed, this case would satisfy even the higher
standard used for certiorari. Id. 16-25. Since
this Court first considered the issue the
appropriate metric for the one person, one vote
standard almost years ago, the issue has
remained controversial. See Burns Richardson,
384 U.S. (1966). Subsequent precedent suggests
that the issue the proper population measure has
not been clearly resolved. See Hadley Junior Coll.
Dist. Metro. Kansas City, Mo., 397 U.S. 50, n.9
(1970); Chen City Houston, 532 U.S. 1046, 1047
(2001) (Thomas, dissenting from denial
certiorari) Having read the Equal Protection
Clause include one-person, one-vote
requirement have left critical variable
the requirement undefined. have never
determined the relevant population that States and
localities must equally distribute among their
districts.
The Fifth Circuit, while acknowledging that the
propriety under the Equal Protection Clause
using total population rather than measure
potential voters presents close question,
concluded that, given the lack more definitive
guidance from the Supreme Court this eminently
political question has been left the political
process. Chen City Houston, 206 F.3d 502, 528
(5th Cir. 2000), cert. denied, 532 U.S. 1046 (2001);
accord, Daly Hunt, F.3d 1212, 1227 (4th Cir.
1996) the absence clear pronouncement
from the Supreme Court this issue, North
Carolina could choose total population and the
district court should have respected its choice
contrast, the Ninth Circuit treated the issue
justiciable but held that the one person, one vote
principle requires the use total population. Garza County Los Angeles, 918 F.2d 763, 774 (9th Cir.
1990), cert. denied, 498 U.S. 1028 (1991). Yet Judge
Kozinski, separate opinion, argued strongly that
voter population was the appropriate standard
instead. Id. 782 (Kozinski, J., concurring part
and dissenting part).
This critical issue the heart this Court
Equal Protection jurisprudence should finally and
unambiguously resolved. Indeed, this issue more
pressing than was when Chen and Garza were
decided, given the considerable growth the
noncitizen population.
Noncitizen populations the U.S. are
significantly larger today, especially Texas. The
number unlawfully present aliens has nearly
tripled the U.S. since Garza, from approximately
3.4 million 1992 11.5 million 2011.5
Furthermore, 1990 there were approximately
million total noncitizens living the U.S. (including
both legal residents and unlawfully present) about
4.4 percent the U.S. total 1990 population
approximately 248 million.6 contrast, 2012
this figure had doubled approximately million
Out total 2012
noncitizens the U.S.7
population 311 million, this means that roughly
percent the modern U.S. population lacks
citizenship about people. This
substantial increase the past years.
Furthermore, well established that Texas has
one the highest noncitizen populations the
United States, percent its total state
Illegal Immigration, Population Estimates the United
States, 1969-2011, Illegal Immigration Solutions, available
http://immigration.procon.org/view.resource.php?resourceID=00
0844 (visited March 2015).
Nolan Malone, al., The Foreign-Born Population: 2000,
U.S. Census Bureau (Dec. 2003), page Table available
http://www.census.gov/prod/2003pubs/c2kbr-34.pdf
(showing
noncitizens accounted for 59.5 percent the United States
total foreign-born population 19,767,316, which translates
approximately 11,761,553 noncitizens, about 4.4 the U.S.
total 1990 population 248,709,873). Yesenia Acosta, Luke Larsen, and Elizabeth Grieco,
Noncitizens Under Age 35: 2010 2012, American Community
Survey Briefs, (Feb. 2014), available http://www.census.
gov/prod/2014pubs/acsbr12-06.pdf.
population tied for second the U.S., behind only
California.8
Accordingly, the opportunity for legislators
resort the tactical use noncitizen populations
dilute the voting power citizens greater than
ever.
CONCLUSION
For the foregoing reasons, amici respectfully
request that the Court note probable jurisdiction and
set this case for oral argument.
Respectfully submitted,
Robert Popper
Counsel Record
Chris Fedeli
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
March 2015
See Henry Kaiser Family Foundation, Population
Distribution Citizenship Status, available http:
//kff.org/other/state-indicator/distribution-by-citizenship-status/
(visited March 2015).