April 28, 2016 — Pepperdine Law professor Derek Muller’s article, “Perpetuating ‘One Person, One Vote’ Errors” has been published in the Harvard Journal of Law & Public Policy.
From “Perpetuating ‘One Person, One Vote’ Errors”:
This Article examines an under-discussed element of the reapportionment cases—the extent to which the parties themselves and the clerks to the Supreme Court Justices resisted advancing the kind of sweeping claims that the Supreme Court ultimately embraced. The Court’s errors in the redistricting cases arose in spite of repeated guidance from the litigants before the Court and the Justices’ own clerks to decide the cases in a narrower fashion or pursuant to existing constitutional standards. Through archival research, this Article demonstrates that all parties were reluctant to redefine all state legislatures under a single (and under-theorized) political definition. The Court took little heed of such modest proposals and instituted sweeping claims about how state legislatures ought to look. The Article then identifies the circumstances in which the Court finally embraced restraint—it permitted States to choose an appropriate population basis for drawing legislative districts, leaving the matter to the sound discretion of the States. The Article identifies a lost footnote in an early draft of Burns v. Richardson that would have articulated the most lucid basis for deferring to the States as they selected the appropriate redistricting population. The Article then reflects on the proposed expansion of these sweeping claims in Evenwel v. Abbott, an attempt to return to the judicial nationalization of state legislatures articulated in Baker and its progeny. The Article calls for an end to these redistricting errors and for greater deference to the States.