University of California Hastings College of the Law
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The Importance of Counting All Immigrants for Apportionment and Redistricting
No full textHow are non-citizens counted and accounted for in representation? Section 2 of the Fourteenth Amendment requires that all whole persons residing in a state are to be counted for apportionment and districting. Courts have interpreted Section 2’s requirement to include women (before the Nineteenth Amendment), non-citizens, and people under 18 years old. Yet today, some states are attempting to exclude non-citizens from apportionment and representation by using a citizen population calculus. This stands in contrast to more than 225 years of practice and to nearly all modern legal interpretations of representation. In landmark 1960s cases such as Wesberry v. Sanders and Reynolds v. Sims, the Supreme Court clarified the ideals of equal representation, writing that every district should have the same total population following the decennial apportionment, so that each of the 435 U.S. House districts had almost the exact same total population. As the nation’s immigrant population has increased in the last sixty years, some have argued that only eligible voters should be counted for apportionment, to the exclusion of non-citizens and even children. In 2016, the Supreme Court addressed this question in Evenwel v. Abbott, in which Evenwel challenged Texas’ use of total population and argued instead for the exclusion of non-citizens. The Court upheld Texas’ use of total population. However, it did not go so far as to say that total population is the only population that can be used, thus leaving the door open for states to potentially choose whether to count every individual residing within their borders or to count exclusively adult citizens.
This Essay examines the potential impact of excluding non-citizens in the redistricting process on the composition of districts. We show that, in moving from total population to citizen population, states with large immigrant populations, such as California, Texas, Florida, and New York, would lose Congressional seats. Further, the communities within these states that have a higher concentration of immigrants, many of which are in Los Angeles, San Jose, Houston, Miami, and New York City, would stand to lose seats in their respective state legislatures. It goes without saying that immigrants contribute greatly to their communities, pay taxes, own homes, and have U.S.-born citizen children in school systems, regardless of their own citizenship statuses. As such, immigrants are entitled to political representation as defined in Section 2 of the Fourteenth Amendment, which directs the counting of all whole persons in states. We conclude that using citizen population instead of total population in redistricting and apportionment is inconsistent with U.S. jurisprudence and would result in immigrant communities losing their constitutionally guaranteed representation. We believe the law requires counting the total population and focusing on communities of interest (COI), including immigrant communities, to allow all residents of the United States to be incorporated into the redistricting and line-drawing process to ensure fair representation
Executive Power and Patronage: Lessons from Puerto Rico
No full textConservatives have made reforming the civil service a top priority, and this was exemplified by former President Donald Trump’s open opposition to job protections that federal civil servants enjoy. President Trump and others who advance a unitary executive theory, pledged to reshape the civil service by amassing appointment, disciplinary and removal powers in the president, although this would make a patronage system more feasible. To this end, President Trump issued an executive order that exposed many career federal civil service workers to a spoils system. This came on the heels of other executive orders that reduced existing workplace protections for career workers. Public condemnation of this move was swift because it was regarded as a departure from longstanding merit rules that have been reaffirmed and expanded over time. Since 1883, the United States has evolved an expert, professional and competent civil service, resulting in a reasonably efficient bureaucracy free of political influence. But that could all change if the executive branch could treat career civil servants as at-will employees, and disregard workplace laws, norms, ethics, and hierarchies. This article describes the evolution of merit rules for federal civil servants, and the shift away from a spoils system. It then uses the experience of civil servants in Puerto Rico to show what a patronage system could look like in the federal government, and the policy, service, and economic impacts it will likely have. The article traces Puerto Rico’s patronage mill to its Spanish colonial roots and shows how this system flourishes despite constitutional and statutory rules prohibiting it. The article details a formal patronage apparatus unlike anything ever seen in the federal government, that is codified in internal political party regulations and implemented by public agency heads and party supporters. These regulations require the educating of public sector workers in electoral matters, mobilizing them to support political campaigns, and using them as enforcers of a politically driven civil service bureaucracy. The article shows that despite the existence of merit rules and the widespread condemnation of political discrimination and associated corruption, patron- age flourishes because political elites benefit from a spoils system, and there are no incentives for reform. The two main political parties of Puerto Rico support and promote patronage and have no incentives to internalize the costs of poor policies, corruption, and inefficiencies stemming from patron- age. The Puerto Rico experience demonstrates how a mature patronage sys- tem can become a cultural norm alongside constitutional and statutory merit rules, with very destructive effects on governance and society. Its resurgence in the federal workplace therefore needs to be guarded against, as is its re- moval from Puerto Rican society. To this end, the article offers an account- ability proposal to address patronage in Puerto Rico