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Evenwel v. Abbott voting amicus 940

Evenwel v. Abbott voting amicus 940

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Date Created:August 11, 2015

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No. 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: August 2015
TABLE CONTENTS
TABLE AUTHORITIES ......................................
INTEREST THE AMICI CURIAE .......................1
SUMMARY THE ARGUMENT ............................2
ARGUMENT ...............................................................4 TEXAS SENATE PLAN INFLICTS
CONSTITUTIONAL INJURY TEXAS
CITIZENS DILUTING THEIR VOTING
POWER .....4
II. THE DISPUTE OVER TEXAS
LEGISLATIVE DISTRICTS
JUSTICIABLE .......................................................8
CONCLUSION ..........................................................15
TABLE AUTHORITIES
CASES
U.S. Supreme Court
Baker Carr, 369 U.S. 186 (1962)................... passim
Bartlett Strickland, 556 U.S. (2008). .................13
Brown Thomson, 462 U.S. 835 (1983) ..................14
Bush Vera, 517 U.S. 952 (1996) ............................12
Connor Finch, 431 U.S. 407 (1977).......................14
Gray Sanders, 372 U.S. 368 (1963) ..........4
Hadley Junior College Dist.,
397 U.S. (1970) ..................................................6
Maryland Committee for Fair Representation
Tawes, 377 U.S. 656 (1964) .................................11
Reynolds Sims,
377 U.S. 533 (1964) ...................................... passim
Roman Sincock, 377 U.S. 695 (1964). ...................11
Swann Adams, 385 U.S. 440 (1967) .....................14
White Regester, 412 U.S. 755 (1973) .....................14
WMCA, Inc. Lomenzo, 377 U.S. 633 (1964) ..........10
iii
U.S. Courts Appeals
Garza County Los Angeles, 918 F.2d 763
(9th Cir. 1990) ............................................3,
Reyes City Farmers Branch Tex.,
586 F.3d 1019 (5th Cir. 2009)..............................13
U.S. District Courts
Benavidez City Irving, 638 Supp. 709
(N.D. Tex. 2009) ...................................................13
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. XIV, .......................................2
Tex. Const. art. XVII, ......................................3,
Tex. Const. art. XVII, (repealed) ....................3,
OTHER AUTHORITIES
Daniel Polsby and Robert Popper, The Third
Criterion:
Compactness
Procedural
Safeguard against Partisan Gerrymandering,
Yale Pol Rev. 301 (1991) ..........................12
Derek Muller, Invisible Federalism and the
Electoral College, Ariz. St. L.J. 1237 (Fall
2012) ....................................................................11
Henry Kaiser Family Foundation, Population
Distribution Citizenship Status, available
http://kff.org/other/state-indicator/distribution-bycitizenship-status/ .................................................8
Illegal Immigration, Population Estimates the
United States, 1969-2011, Illegal Immigration
Solutions,
available
http://immigration.procon.org/view.resource.php?r
esourceID=000844 ................................................9
Initiative Referendum Institute the University Southern California, State IR, available
http://www.iandrinstitute.org/
statewide_ir.htm ...3
National Conference State Legislatures, Initiative,
Referendum
and
Recall,
available
http://www.ncsl.org/research/elections-andcampaigns/initiative- eferendum and-recallr
overview.aspx.........................................................3
National Conference State Legislatures, Voting
Nonresidents and Noncitizens, February 27, 2015,
http://www.ncsl.org/ esearch/elections-andr
campaigns/non-resident-and-non-citizenvoting.aspx ............................................................2
Nolan Malone, al., The Foreign-Born Population:
2000, U.S. Census Bureau (Dec. 2003), available
http://www. ensus.gov/prod/2003pubs/c2kbrc
34.pdf .....................................................................9
Thomas Emerson, Malapportionment and
Judicial Power, YALE L.J. (1962) ..............11
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/acsbr1206.pdf .....................................................................9
INTEREST THE AMICI CURIAE
Judicial Watch, Inc. Judicial Watch nonpartisan educational organization that seeks
promote transparency, accountability, integrity
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. particular, amici are
concerned that the Western District ruling allows
the State Texas intentionally dilute the voting
Pursuant Supreme Court Rule 37.6, amici curiae state that counsel for party authored this brief whole part
and that person entity, other than amici curiae and their
counsel, made monetary contribution intended fund the
preparation and submission this brief. The parties have
given blanket consent the filing amicus briefs, and have
filed letters consent with this Court.
power certain citizens compared the voting
power other 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 citizens improperly counting noncitizen
nonvoters when determining the populations
legislative districts. Under the laws all fifty
states, only citizens may vote either statewide
federal elections.2 Texas scheme give weight
nonvoting noncitizens along with lawful voters
contrary the principles embodied citizen voting
laws.
SUMMARY THE ARGUMENT
Texas use total population the sole basis for
measuring equal population its statewide
districting plan creates grossly uneven distribution voters each district. This imbalance violates
the one person, one vote principle first articulated Baker Carr, 369 U.S. 186 (1962). This principle
protects voters from having their votes diluted
malapportionment. does not protect any other
National Conference State Legislatures, Voting
Nonresidents and Noncitizens, February 27, 2015, state
has extended noncitizen voting statewide elections.
http://www.ncsl.org/research/elections-and-campaigns/nonresident-and-non-citizen-voting.aspx See also 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.
abstract representational interests that might
asserted noncitizens nonvoters.
Texas redistricting scheme results vote
dilution because the votes those eligible vote
are given less weight than that electors
another location. Garza County Los Angeles,
918 F.2d 763, 782 (9th Cir. 1991) (Kozinski, J.,
concurring part and dissenting part). The
principles established Baker and its progeny
require Texas redraw its legislative districts.
The Appellants claim justiciable because the
deliberate malapportionment citizens issue
this case resists correction ordinary democratic
means. The size the noncitizen population makes
the citizen malapportionment display Texas
particularly egregious.
Further, Texas has
initiative process referendum system,3 and any
proposed amendment the Texas Constitution
requires legislative referral approved
supermajority two-thirds both houses.4 Thus,
judicial intervention affords the only realistic
See National Conference State Legislatures, Initiative,
Referendum and Recall, available http://www.ncsl.org/
research/elections-and-campaigns/initiative- eferendum andr
recall-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).
Tex. Const. art. XVII, Texas provision for calling
constitutional convention was repealed 1999. Tex. Const.
art. XVII, (repealed).
prospect for Texas voters obtain relief from the
constitutional injury vote dilution.
This
Court
should
enjoin
the
citizen
malapportionment embodied Texas Senate
district plan for the same reason that enjoined the
malapportionment issue Reynolds Sims,
377 U.S. 533 (1964) and related cases. Such
order necessary ensure the sound functioning
our democratic processes.
For these reasons, amici urge the Court
reverse the judgment the Western District.
ARGUMENT TEXAS SENATE PLAN INFLICTS
CONSTITUTIONAL INJURY TEXAS
CITIZENS DILUTING THEIR VOTING
POWER. consistent series landmark rulings, this
Court has held that diluting the efficacy voters
votes malapportionment constitutional injury.
See Baker, 369 U.S. 207-08 (voters had standing assert that gross disproportion
representation voting population was
classification that disfavors them placing
them position constitutionally unjustifiable
inequality vis-a-vis [other] voters Gray Sanders,
372 U.S. 368, 381 (1963) (in statewide primaries
there constitutional way which equality
voting power may evaded. Reynolds, 377 U.S.
568 (in state and local elections, [a] citizen,
qualified voter, more nor less because
lives the city the farm.
However, this Court has not gone far enough
close the loophole that Texas now exploits. Texas
created districts that are equal total population
but decidedly unequal citizen population.
result, the votes some Texas citizens have,
some measures, almost twice the electoral power
the votes other Texas citizens. See Jurisdictional
Statement Juris. Stmnt. No. 14-940 (Feb.
2015) Table (showing maximum voting
power
discrepancy
non-suspense
voter
registration for 2008 1.84). The voting power citizens based Citizen Voting Age Population CVAP varies between Texas Senate districts
more than 1.5 times. Id. The votes those Texas
citizens who are not favored the Texas legislature
are thereby diluted.
This simple tactic allows Texas legislators
argue that they are complying with the
constitutional, one person, one vote, requirement, the very moment that they are weighting the
votes their supporters placing them districts
with greater numbers nonvoting noncitizens. The
ultimate consequence this scheme that
legislators are able enhance their odds winning
reelection without having engage the
bothersome and time-consuming task actually
persuading voters vote for them. The Appellants this case have amply demonstrated the effect
voting power that the result the Texas
legislature tactic citizen malapportionment.
Importantly, Reynolds and its progeny protect
against precisely this kind vote dilution, while
they not protect the kind representational
interests which Texas argues requires only total
population equality. The one person, one vote
principle prevents the dilution citizens voting
power, and has meaning apart from this
purpose. articulated this Court, the principle
requires that each district must established
basis that will insure, far practicable, that
equal number voters that vote for equal number
representatives. Hadley Junior College Dist., 397
U.S. 50, (1970) (emphasis added). The weighting citizens votes that one person has almost twice
the ability elect representatives another citizen vote dilution violation this principle.
minimizing the voting strength substantial
numbers voters, Texas plan disregards true
electoral equality. But electoral equality, and
not representational equality, that the heart
the one person, one vote principle. See Garza, 918
F.2d 784 (Kozinski, J., concurring part and
dissenting part) (one person, one vote protects
right uniquely held citizens, and dilution
that right allow noncitizens share it). Reynolds, this Court described the
constitutional injury arising from malapportionment terms vote dilution, and not representational
interests:
[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.
377 U.S. 562-63. the Court concluded:
[w]eighting the votes citizens differently, any
method means, merely because where they
happen reside, hardly seems justifiable. Id.
563 (emphasis added).
II.
THE DISPUTE OVER TEXAS
LEGISLATIVE DISTRICTS
JUSTICIABLE.
The claims this case are justiciable. Texas
large noncitizen population was deliberately
allocated among Senate districts dilute the
votes some Texas citizens and amplify the votes others. Those citizens who were harmed cannot
obtain remedy through the ordinary workings
the democratic process. Baker and its progeny
already have established that vote dilution caused malapportionment justiciable. Accordingly,
this Court should enjoin the use Texas Senate
districts because they embody and rely citizen
malapportionment.
Further, this Court should
direct that Texas Senate districts apportioned
the basis citizen voting-age population.
Noncitizen populations Texas are significantly
larger than other states, and larger than
previous years.
Texas has one the highest
noncitizen populations the United States
percent total state population tied for second
the U.S., behind only California.5 Indeed, the
number unlawfully present aliens throughout the
U.S. has nearly tripled since Garza, from
approximately 3.4 million 1992 11.5 million
See Henry Kaiser Family Foundation, Population
Distribution Citizenship Status, available http: ff.org/other/state-indicator/distribution-by-citizenship-status/
(last visited February 2015).
2011.6
When Garza was decided there were
approximately million noncitizens living the
U.S. (including both lawfully and unlawfully present
foreign nationals), about 4.4 percent the U.S.
population that time.7 2012 this figure had
doubled approximately million noncitizens
the U.S, roughly percent the current U.S.
population.8
Because its large noncitizen
population, Texas better situated than other
states engage vote dilution means citizen
malapportionment.
Malapportionment general justiciable
precisely because cannot remedied the
ordinary operation the democratic process. This
Court recognized this point when first ventured
into the political thicket address the equal
protection implications malapportioned voting
districts. See Reynolds, 377 U.S. 566.
Illegal Immigration, Population Estimates the United
States, 1969-2011, Illegal Immigration Solutions, available
http://immigration.procon.org/view.resource.php?resourceID=0
00844 (visited Feb. 25, 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 accounting for 59.5 percent the United States
total foreign-born population 19,767,316 1990, about 4.4
percent the U.S. 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. ensus.
gov/prod/2014pubs/acsbr12-06.pdf.
Justice Clark, concurring Baker, explained
that
[t]he 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, 259 (1962) (Clark, concurring). long line apportionment cases following
Baker explicitly referred the absence
democratic remedy justifying the Court
intervention. See Reynolds, 377 U.S. 553
effective political remedy obtain relief against the
alleged apportionment 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 under New York law, 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 have 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. 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 also
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. all these cases, this Court recognized that
the problem malapportionment cannot resolved
simply holding more elections. Legislators who
represent malapportioned districts have incentive alter the electoral system that keeps them
office. Without judicial intervention, legislators will
continue weight the votes their partisan
supporters with impunity. Indeed, legislators gain
the ability select themselves, least degree,
and they acquire this power the voters expense.9
What was true the original malapportionment
cases equally true the citizen malapportionment
that issue this case. The same inability
obtain redress democratic means apparent
Texas. There currently initiative process. Any
proposed amendment the Texas Constitution
requires legislative referral approved
supermajority two-thirds both houses. Tex.
Const. art. XVII, Such referral unlikely
the best circumstances, but all but
unthinkable where the legislators who would have
make the referral are elected from districts where
citizens are deliberately malapportioned. Finally,
Texas provision for calling constitutional
convention was repealed 1999. Tex. Const. art.
XVII, (repealed).
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
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.
Accordingly, judicial intervention warranted,
and this Court should enjoin the use Texas
current Senate districts.
The Court should, moreover, order the Texas
legislature utilize CVAP equalizing district
populations. CVAP the most appropriate standard
because accounts both for citizenship and for the
age-eligible status citizens. Defining the one
person, one vote standard terms CVAP would
prevent the citizen malapportionment engaged
the Texas legislature. also would prevent
legislatures from diluting voters voting power
deliberately creating districts with different age
demographics.
CVAP statistics are recognized and relied upon
voting cases, particular designing remedial
districts under Section the Voting Rights Act,
U.S.C. 10301. See e.g., Reyes City Farmers
Branch Tex., 586 F.3d 1019, 1023 (5th Cir. 2009)
voting majority implies that the majority can
actually vote, the inquiry must take account
both citizenship and voting age. Benavidez City Irving, 638 Supp. 709 (N.D. Tex. 2009) (to
prevail under Section plaintiff must show that possible draw election district
appropriate size and shape where the citizen voting
age population the minority group exceeds 50%
the relevant population the illustrative district.
Bartlett Strickland, 556 U.S. (2008) whether district with minority population
under 50% the CVAP may redress violation question fact... Texas, the current CVAP deviations between
legislative districts vary more than forty percent.
See Juris. Stmnt., No. 14-940 (Feb. 2015)
(showing CVAP deviation 1:1.54, 40.08%
deviation). This population deviation exceeds the ten
percent required for prima facie case
discrimination. Brown Thompson, 462 U.S. 835,
842 (1983) (citing Connor Finch, 431 U.S. 407, 418
(1977); White Regester, 412 U.S. 755, 764 (1973)). this Court has explained: minimis deviations are unavoidable, but
variations 30% among senate districts
and 40% among house districts can hardly deemed minimis and none our
cases suggests that differences this
magnitude will approved without
satisfactory explanation grounded
acceptable state policy. [Thus] variations
from pure population standard might
justified such state policy considerations the integrity political subdivisions,
the maintenance compactness and
contiguity legislative districts the
recognition natural historical
boundary lines.
Swann Adams, 385 U.S. 440, 444 (1967).
The Court can and should order Texas remedy
the imbalance its CVAP populations redrawing
its legislative districts.
CONCLUSION
For all the foregoing reasons, the judgment
the Western District Texas should reversed.
Respectfully submitted,
Robert Popper
Counsel Record
Chris Fedeli
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street SW,
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
August 2015