petitioned the U.S. Supreme Court to grant ... - Election Law Blog

22principle. Id. at 774. Rather, the court concluded thatbecause “the government should represent all the people,”Reynolds and its progeny “recognized that the people,including those who are ineligible to vote, form the basisfor representative government.” Id. The Ninth Circuitthus held that total population was the “appropriatebasis for state legislative apportionment.” Id. It foundthat using voter population instead of total population toequalize voting districts would cause “serious populationinequalities across districts,” which, in turn, would resultin “[r]esidents of the more populous districts [having]less access to their elected representative” in violationof the Equal Protection Clause. Id. at 774. The courtalso concluded that using voter population would violatethe Petition Clause of the First Amendment by denyingnon-voters fair access to elected officials. See id. at 775(“Interference with individuals’ free access to electedrepresentatives impermissibly burdens their right topetition the government.”). In the Ninth Circuit, then,states and localities must use total population.Judge Kozinski dissented. In his view, the majority’srationale not only turned Reynolds on its head, butadopted an unsustainable conception of the FourteenthAmendment under which the purported right of “access”to elected officials by non-voters trumps the equalprotectionrights of eligible voters. Id. at 781-85 (Kozinski,J., concurring in part and dissenting in part). He concludedthat the Fourteenth Amendment protected the rightsof voters. Id. at 782 (“[T]he name by which the Courthas consistently identified this constitutional right—oneperson, one vote—is an important clue that the Court’sprimary concern is with equalizing the voting power ofelectors, making sure that each voter gets one vote—not