Mike Kueber's Blog

March 21, 2013

More on the one-person, one-vote principle

I recently blogged about the one-person, one-vote principle as applied to redistricting in San Antonio.  In the post, I pointed out that there are two different legal standards for creating equally populated districts (approximately equal vs. as equal as practicable) and that the City of San Antonio in its 2012 redistricting probably chose the wrong standard.

A few days ago the one-person, one-vote principle came up again in another context in a NY Times article.  The article reports on a pending Supreme Court decision – Lepak v. City of Irving – in which the plaintiff is arguing that districts should be divided on the basis of the number of eligible voters in the district, not the number of residents.  Although the six council districts in Irving have nearly identical numbers of residents, one of the districts (the only minority district of the six) has only half as many voters as the others because it has a large number of children and illegal immigrants, neither of whom are eligible to vote.    

As I was reviewing my previous postings on this subject, I discovered that I had blogged about Lepak almost three years ago in August 2010.  At that time, the case was just starting to work its way through the federal courts.  Now it appears that we will finally get an answer this summer.   

The Lepak decision is obviously important to San Antonio.  Although various reports indicate that Dallas and Houston are much bigger magnets for illegal immigrants, San Antonio’s Southside districts certainly contain a significant number of these people who are not eligible to vote.  Unfortunately, the supporting documents for San Antonio’s 2012 redistricting fail to address the number of illegal immigrants in the respective districts, but they do reveal the voting-age population in each district.  Those numbers show that the lopsided difference between the population-rich Northside districts and the population-poor Southside districts is even starker when narrowing the focus to only voting-age population:

  • The City Council’s 2012 redistricting, which was based on the 2010 census, created ten council districts based on total number of residents, ranging from a low of 126,228 (-4.86 deviation) in District 5 to a high of 139,227 (+4.94 deviation) in District 9, for a total deviation of 9.8% from the “ideal” population of 132k.  The total deviation is much greater when based on the districts’ voting-age population, ranging from a low of 85,284 (-12.16% deviation) in District 4 to a high of 109,612 (+12.90% deviation) in District 8.  Thus, the combined resident-deviation range of 9.8% barely satisfies the maximum legally permissible total of 10%, but the combined voter-deviation range of 25.06% dramatically exceeds it.  

A few days before the first Lepak posting, I blogged about the huge difference in registered-voter totals in the San Antonio districts.  The totals ranged from a low of 50,826 registered voters in District 5 to a high of 94,447 in District 9.

No matter how you slice it – by total population or voting-age population or documented voting-age population or registered voters – a vote on the Northside is significantly diluted compared to the steroid-like votes on the Southside.

February 17, 2012

Equal protection under the laws and same-sex marriage

The Ninth Circuit Court of Appeal, which has already earned enmity of every constitutional conservative in America, recently threw out California’s 2008 voter-approved ban on same-sex marriage (known as Proposition 8).  According to the court, this ban violated the equal-protection constitutional rights of gay men and lesbians in California.  

The U.S. Constitution under the post-Civil War 14th Amendment prohibits the states from denying “to any person within its jurisdiction the equal protection of the law.”  In accordance with longstanding jurisprudence, the Ninth Circuit accurately described as follows the legal standard for determining whether a law denies a person equal protection – “If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relationship to some legitimate end.

In the practical application of this standard, the courts scrutinize a law in three ways:

  1. Strict scrutiny.  Strict scrutiny (if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is “narrowly tailored” to serve a “compelling” government interest. In addition, there cannot be a “less restrictive” alternative available to achieve that compelling interest.
  2. Intermediate scrutiny.  Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is “substantially related” to an “important” government interest.
  3. Rational-basis test.  Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is “reasonably related” to a “legitimate” government interest.

I’ve always been amazed when a court concedes that a law “neither burdens a fundamental right nor targets a suspect class,” yet concludes that the law is essentially irrational – i.e., it is not reasonably related to a legitimate government interest.  Why would a legislature act irrationally?  As Michele Bachmann would say, a court must have a lot of chutzpah to reach such a conclusion.  And the California case is even worse because the law was enacted by the voters through a proposition.  Thus, the Ninth Circuit is saying that the California voters acted irrationally.

It’s no wonder that Newt Gingrich has decided to demagogue the Ninth Circuit; it is an easy target.  But he neglects to consider that our system has a Supreme Court that has full authority to reverse outliers like the Ninth Circuit or Gingrich’s other so-called renegade jurist in San Antonio, Federal Judge Fred Biery.

Incidentally, Biery caught hell for refusing to allow a speaker at a local high school graduation say a prayer, and he was promptly reversed by the conservative 5th Circuit Court of Appeals.  Last week the litigants agreed to settle the matter, and Judge Biery issued an Opinion and Order that concluded with the following personal statement:


During the course of this litigation, many have played a part:

To the United States Marshal Service and local police who have provided heightened security: Thank you.

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.

To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.

To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.

To the lawyers who have advocated professionally and respectfully for their clients’ respective positions: Bless you.

Biery is fortunate that he can vent from the safety of a lifetime appointment.






February 24, 2011

Obama abandons the Defense of Marriage Act

The Defense of Marriage Act (DOMA) was abandoned yesterday by the Obama administration.  Obama’s attorney general Eric Holder announced that he and Obama had concluded the law was unconstitutional because it discriminated against homosexuals without a compelling reason.   

DOMA, which was enacted in 1996 by a bipartisan majority in Congress and a Democratic president, contains two principal provisions:

  1. Grants each state the authority to deny full faith & credit to same-sex marriages granted in other states.
  2. Declares that the federal government will only recognize those marriages between a man and a woman.

Both provisions are being challenged constitutionally in a large number of courts, but yesterday’s decision by the Obama administration applies only to the second provision.  Although the administration reaffirmed that it opposes same-sex marriage and instead favors civil unions, a judicial abrogation of the second provision would likely call into question numerous other laws dealing with employment and family recognition. 

Interestingly, some states-rights conservatives agree that DOMA is unconstitutional.  In their view, each state has the right to define marriage, and the federal government must accept whatever definition a state makes.  That makes sense to me, but that is not the rationale for Obama abandoning DOMA.  Obama is abandoning DOMA because, in his opinion, homosexuals historically have been subjected to significant discrimination, and therefore they are entitled to a heightened level of equal protection under the 14th Amendment.  According to Holder: 

  • After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.   The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.”

Although the announcement by Holder doesn’t describe the equal-protection standards by which laws are scrutinized, there are three of them:

  1. Rational-basis scrutiny – a law is presumed constitutional is there is a rational basis for it.
  2. Intermediate scrutiny – a law (usually relating to gender or some rights under the First Amendment) must further an important government interest in a way that is substantially related to that interest.  
  3. Strict scrutiny – laws that affect fundamental rights or suspect classes must be narrowly tailored and least restrictive means to further a compelling governmental interest.

Historically, federal courts that have considered the question have concluded that classifications based on sexual orientation are subject only to rational basis review.  Holder’s announcement obviously disagrees with that conclusion, but it fails to state whether sexual orientation deserves intermediate or strict scrutiny.  Based on what I have read elsewhere, Holder and Obama have concluded that sexual orientation deserves intermediate scrutiny. 

I agree that homosexuals have been subjected to significant discrimination, and therefore rational-basis scrutiny is inadequate, and the intermediate level of protection seems to be appropriate.  This requires the government to show that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.

Unlike the Obama administration, I think the government has a fighting chance of prevailing on that issue.  In that event, the eventual correction to this problematic provision in DOMA will need to be made by Congress, but unfortunately, that won’t happen as long as Republicans control the House.  However, if Republicans continue discriminating against homosexuals, their control of the House may not be long.

August 6, 2010

Same-sex marriage and California’s Proposition 8

California’s Proposition 8 proposed prohibiting same-sex marriage by amending the CA constitution to provide, “Only marriage between a man and a woman is valid or recognized in California.”  Prop 8 became law in November of 2008 when it was approved by 52% of the voters.  Earlier this week, a federal judge in San Francisco held that Prop 8 was an unconstitutional denial of due process and equal protection under the 14th Amendment.  The holding in Perry v. Schwarzenegger, Brown, et al. was a pleasant surprise to many same-sex proponents who had concluded that the issue should be resolved in one state at a time instead of obtaining a decision in federal courts that would have nationwide implications.  Their state-by-state efforts for same-sex marriage had been successful in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia.

Prop 8 was defended in the litigation by a private party because Governor Arnold Schwarzenegger and Governor-to-be Attorney General Jerry Brown declined to do so.  In fact, Attorney General Brown conceded that the law was unconstitutional.  Despite their personal disagreement with the law, it is shocking that neither politician was willing to defend something that a majority of the voters approved. 

The private-party Defendant of Prop 8 appears to have put on a half-hearted defense, “eschewing all but a rather limited factual presentation.”  While the plaintiffs presented eight lay witnesses and nine expert witnesses, the defendants presented only two expert witnesses.  Essentially, the Defendant of Prop 8 merely repeated the explanation that had been provided to voters on the ballot:

  • “Proposition 8 is simple and straightforward. * * * Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle. * * * It protects our children from being taught in public schools that same-sex marriage is the same as traditional marriage. * * *.”

I don’t question bare-bones defense strategy because I have some experience trying to accomplish things on a shoe-string budget.  The Prop 8 proponents probably didn’t think it would be cost-effective to present facts to a judge who was predisposed to disregard their facts.  

Federal Judge Vaughn Walker, a Bush-41 appointee who is rumored to be a homosexual, ultimately (a) found that all of the Plaintiffs’ witnesses were credible and neither of the Defendant’s witnesses was, and (b) ruled that there was no legitimate government interest in prohibiting same-sex marriage.  The decision was based on equal protection and due process under the 14th Amendment.

  • “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

Under the Due Process analysis, Judge Walker first rejected the Defendant’s argument that same-sex marriage was a new right and accepted the Plaintiffs’ argument that it was an off-shoot from the existing freedom to marry.  This is important because the U.S. Supreme Court has already declared that the freedom to marry is a fundamental right and, therefore, any limitation placed on this right is subject to strict scrutiny.  Under strict scrutiny, the state must present evidence that showing that the law is narrowly tailored to a compelling government interest.  Judge Walker noted that the government Defendants (Schwarzenegger and Brown) declined to advance such arguments, and held that the private-party Defendant not only failed to meet the heavy burden of production to show that Prop 8 was narrowly tailored to meet a compelling government interest, but also didn’t even produce enough evidence to withstand a rational-basis review.

Under the Equal Protection analysis, Judge Walker suggested, without holding, that any classification relating to sexual orientation was the same as a classification relating to sex.  This is important because the U.S. Supreme Court has already held that any law that classifies by sex is a suspect classification and must be subjected to strict scrutiny – i.e., narrowly tailored to a compelling government interest.  Judge Walker did not make this holding because it was not necessary:

  • “As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.  Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.”

Instead of applying a strict-scrutiny standard, Judge Walker made his holding based on a rational-basis standard:

  • “The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.  The guarantee of equal protection coexists, of course, with the reality that most legislation must classify for some purpose or another.  When a law creates a classification but neither targets a suspect class nor burdens a fundamental right, the court presumes the law is valid and will uphold it as long as it is rationally related to some legitimate government interest.  The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational. Even under the most deferential standard of review, however, the court must insist on knowing the relation between the classification adopted and the object to be attained.  The court may look to evidence to determine whether the basis for the underlying debate is rational.”  (Citations omitted.)

Judge Walker correctly notes in his opinion that law enacted by proposition, just as law enacted by legislation, must be reviewed by courts to ensure the rights of minorities are not trampled upon.  One wonders, though, what role Judge Walker’s lifetime appointment made in this decision.  Can you imagine an elected judge declaring that the California voters had no rational interest in prohibiting same-sex marriage?  This might be a good argument for keeping judges off the ballot.

Another interesting aspect of this decision concerned whether the liberal domestic-partner law in California should satisfy the needs of same-sex couples.  Although I never noticed Judge Walker using the analogy, I kept thinking of the “separate, but equal” arguments that were used in earlier Civil Rights cases.  “Separate, but equal” arguments were horribly flawed with respect to civil rights, but I wouldn’t be surprised to see the conservative majority on the U.S. Supreme Court conclude that the domestic-partner law in California is an acceptable substitute for same-sex marriage.

July 24, 2010

One man, one vote in San Antonio?

Filed under: Issues,Law/justice,Politics — Mike Kueber @ 5:19 am
Tags: , , , ,

The concept of “one man, one vote” is a fundamental democratic principle in the United States, but when you look at recent City Council election returns in San Antonio, you might wonder whether the concept is being ignored. 

There are ten City Council districts in San Antonio.  Attached below are the election returns in the two most recent elections, plus the number of registered voters in each district:

      2009          2007                Registered

      votes          votes                voters            

  1. 6,670         5,534               56,337            
  2. 4,442         3,471               57,193
  3. 3,611         2,493               57,692
  4. 3,912         3,896               56,831
  5. 5,153         3,164               50,826
  6. 6,272         5,130               75,871
  7. 10,251       9,242               75,855
  8. 10,487       11,627             86,557
  9. 11,972       8,629               94,447
  10. 8,514         9,140               79,818

Obviously, the voters in Districts 7-10 have diluted votes because 40,000 voters elect four councilpersons whereas the voters in District 1-6 have steroid votes because 25,000 voters elect six councilpersons.  There are two factors that lead to this defective electoral process:

Ten-year interval between adjustments

The council districts are drawn every ten years, following the decennial census, to comply with the City Code, which requires the districts “shall be as nearly equal in population as practicable.” Because the growth in each district varies dramatically, the population in each district will vary significantly  by the end of the ten-year interval.  The last drawing of district boundaries occurred in 2002, following the 2000 census, and the population variations in that census were astounding: 

2000 Census Total Population
District   Total Population % of Total
1   97,161 9%
2   94,737 8%
3   97,630 9%
4   119,713 10%
5   85,600 7%
6   112,066 10%
7   110,888 10%
8   164,391 14%
9   137,201 12%
10   123,190 11%

Districts 7-9 had approximately the same number of people as did Districts 1-6, and District 8 had almost twice as many people as District 5.  Incredibly, the 2002 drawing of district boundaries did not completely correct the inequity.  Whereas each re-drawn district should have contained 115,000 people, re-drawn District 6-8 actually contained 120,000 people (+4% deviation) and Districts 2-5 contained 111,000 people (-4% deviation).  I am assuming that 4% is an acceptable deviation for most courts, but it doesn’t make sense in San Antonio for the plus-deviations to be assigned to the high-growth districts and minus-deviations to be assigned to the low- or negative-growth areas.  That only exacerbates the inequity.  When new district boundaries are drawn in 2012, based on the 2010 census, the minus-deviations should be assigned to the high-growth districts.    

Apportioning is based on number of people, not number of voters

If each vote is to have the same weight, apportioning should be based on the number of voters in a district, but historically it has been based on population.  This practice is becoming more problematic, not only because voter registration is dropping significantly in various parts of the country, but also because there are becoming huge numbers of illegal inhabitants in certain parts of the country. 

A sound basis for apportioning based on population can be found in the U.S. Constitution.  Article I provides – “Representatives … shall be apportioned among the several States … according to their respective Numbers….”  The Constitution goes on to require that Congress count “the whole number of persons in each State… in such manner as they by Law shall direct.”  Furthermore, key Supreme Court decisions usually refer to “population,” “people,” or “inhabitants,” even though courts have indicated in dicta the need for equity among voters: 

  • “And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted….  With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live….”  Reynolds v. Sims, 377 U.S. 533(1964).
  • “Whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.”  Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U.S. 50 (1970).

In the short term, it makes sense for Congress to instruct the decennial census to distinguish between legal and illegal residents.  The Constitution appears to give the Congress such latitude, and there is no good reason for granting representation to people who are in this country illegally.

In the long term, I think it would be a good idea to amend the Constitution to apportion districts based on prior voting numbers.  This not only would most closely resemble the ideal of one-man, one vote, but would also encourage people to register and vote.

June 25, 2010

Bad law – stuck on stupid

“Bad facts make bad law” is an old adage taught in law school.  It means that a court’s opinion is often dictated, not by legal reasoning, but rather by the ultimate result that the court wants.  In other words, the court first decides which party should win and then writes an opinion that leads to that result.  Bush v. Gore is often mentioned as an example of this.  

Bad law also results when a judicial decision is based essentially on the court’s preferred public policy, not on legal principles.  This is sometimes called “legislating from the bench,” and a good example is the landmark affirmative action case, Grutter v. Bollinger, 539 U.S. 306 (2003).  In Grutter, Justice O’Connor approved reverse discrimination by a university, but warned:

  • “Race-conscious admissions policies must be limited in time….  The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Although the Supreme Court is bound by the concept of precedent, the Grutter opinion supports the proposition that earlier decisions should be revisited when the historical context changes or underlying assumptions are shown to be incorrect.  Nearly 30 years ago – in Plyler v. Doe, 457 U.S. 202 (1982) – the United States Supreme Court declared that Texas must provide a free public education to children who were illegal immigrants.  I suggest that, based on historical developments, the well-intended Plyler decision should be revisited and reversed because it improperly restricts the ability of states to discourage illegal immigration.   

Plyler struck down a Texas statute that attempted to prevent children who were illegal immigrants from attending public schools.  The Court found that where states limit the rights afforded to people (specifically children) based on their status as aliens, this limitation must be examined under an “intermediate scrutiny” standard to determine if it complies with the Equal Protection clause in the 14th Amendment.  A law satisfies “intermediate scrutiny” if it furthers a substantial goal of the State.  (“Strict scrutiny” is applied to laws that involve “suspect classes” or a “fundamental right” and requires that the law be precisely tailored to serve a compelling government interest.  All other laws require only that the classification at issue bears some fair relationship to a legitimate public purpose.)

The Supreme Court in Plyler determined that a law that tended to deny the education of illegal immigrants deserved intermediate scrutiny because of the Court was concerned about the creation of a permanent underclass:

  • “Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial ‘shadow population’ of illegal migrants – numbering in the millions – within our borders.  This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents.  The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”

This language from the Court clearly suggests that its motivation is to ameliorate the consequences of a dysfunctional federal government and its ineffectual immigration policy. 

The Court in Plyler went on to explain why the Texas law fails to further a substantial goal of the state:

  • “First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc.  The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that ‘charging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,’ at least when compared with the alternative of   prohibiting the employment of illegal aliens.”
  • “Second, while it is apparent that a State may ‘not . . . reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools,’ appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State’s ability to provide high-quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State.  As the District Court in No. 80-1934 noted, the State failed to offer any ‘credible supporting evidence that a proportionately small diminution of the funds spent on each child [which might result from devoting some state funds to the education of the excluded group] will have a grave impact on the quality of education.’  And, after reviewing the State’s school financing mechanism, the District Court in No. 80-1538 concluded that barring undocumented children from local schools would not necessarily improve the quality of education provided in those schools.  Of course, even if improvement in the quality of education were a likely result of barring some number of children from the schools of the State, the State must support its selection of this group as the appropriate target for exclusion.  In terms of educational cost and need, however, undocumented children are ‘basically indistinguishable’ from legally resident alien children.”

Both dot points above contain examples of a court substituting its judgment for the judgment of legislators.  The most jarring were the assertions that “few if any illegal immigrants come to this country… to avail themselves of free education” and that “charging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens.” 

With the benefit of hindsight, these judicial assertions seem ludicrous and laughingly simplistic.  Jobs are not the only magnet for illegal immigrants.  America also offers free education and medical care, reduced crime, and freedom.  It takes a lot of chutzpah for the Supreme Court to criticize legislators for ineffectively controlling immigration, while brazenly shooting-down a good-faith effort by Texas legislators to address the problem.

When the government response to Hurricane Katrina was floundering, a John Wayne-like character appeared on the scene and took charge.  Among Lt. General Russel Honore’s most famous comments was, “We aren’t stuck on stupid.”  I believe that our evolving Supreme Court knows more than it did in 1982, and Texas should give it another chance.  Let’s pass a law that addresses education and employment of illegal immigrants, and then give the Supreme Court a chance to show that it isn’t stuck on stupid.