Thomas Berry has posted this draft on SSRN (forthcoming, NYU Journal of Law and Liberty). Here is the abstract:
Since the 1964 case of Reynolds v. Sims, states have been constitutionally required under the Equal Protection Clause to draw their legislative districts with equal populations. In the upcoming case of Evenwel v. Abbott, the Supreme Court will decide whether the “population” that must be equalized is total population, voter population, or whichever a state chooses. So far, lower courts have unanimously rejected constitutional challenges to apportionment by total population. Frequently, these courts and other scholars have argued that it would be implausible for the Fourteenth Amendment, which allocates representatives in the U.S. House to the states based on their total populations, to forbid the same practice within a state. I call this argument the “federal analogy.”
This Article represents the first full-length historical examination challenging the conventional wisdom that the federal analogy is a strong argument against a ban on total population-based districting at the state level. Through examination of the debates at the Constitutional Convention and the enactment of the Fourteenth Amendment, this Article demonstrates that the federal rule was created to solve a uniquely federal problem: that states have control over their own standard of suffrage. Thus, under a voter-based federal rule of apportionment, states would have been able to game the system: a state would need only to expand suffrage — say, by lowering its voting age — to obtain additional representation. This is why the total population rule for the U.S. House was created (and, in part, why the electoral college system rather than nationwide popular election of the president was created), to allocate political power to the states in a reasonably fair manner that neither incentivizes nor disincentivizes expanding suffrage.
Eighty years later, debates at the passage of the Fourteenth Amendment show that a voter-based standard was opposed for this same practical concern. In addition, the voter-based system was opposed out of concern for the adequate virtual representation of nonvoting women, and political opposition from eastern states to the possibility of losing relative political power to the heavily-male western states. Further, the Amendment’s now nearly-forgotten Penalty Clause sheds crucial light on the democratic principles behind the amendment. This clause removed disenfranchised former slaves from their states’ congressional apportionment totals, because they were not virtually represented and they were denied the vote indefinitely. Aliens, on the other hand, were kept within apportionment because nearly all at that time became voters within five years of U.S. residency. This represents the greatest change in circumstances between 1866 and today. Now, with aliens occupying a situation of indefinite waits for the vote and no obvious “guardian voter” to virtually represent their interests, the lesson of the Fourteenth Amendment’s Penalty Clause counsels for removing them from apportionment and not allowing others to claim to represent them, just as disenfranchised former slaves were removed.