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

25In Chen, the Fifth Circuit reached the same basicconclusion. While chiding the Supreme Court for being“somewhat evasive in regard to which population must beequalized,” the court found that the pertinent decisions“indicated with some clarity that the choice has politicalovertones that caution against judicial intrusion.” Chen,206 F.3d at 524. The court agreed with Judge Kozinskithat Supreme Court precedent refuted the Garzamajority’s conclusion that use of total population wasconstitutionally required. Id. at 528. But the Fifth Circuitfound “no justification to depart from the position of Daly.”Id. It declined to interpret “the Equal Protection Clauseto require the adoption of a particular theory of politicalequality.” Id. at 527. Like the Fourth Circuit, the FifthCircuit held that “the choice of population figures is achoice left to the political process.” Id. at 523.There can be no question that the circuits are divided.On the one hand, the Ninth Circuit requires state andlocalities within its jurisdiction to use total populationfor purposes of one-person, one-vote compliance. On theother hand, the Fourth Circuit and Fifth Circuit allowstates and localities to choose either total population ora voter-based approach without any judicial check as towhether that choice complies with the Constitution. Theonly thing these circuits appear to agree upon is the needfor further guidance from this Court. Daly, 93 F.3d at1222; Chen, 206 F.3d at 524; Daly, 881 F. Supp. at 221;Garza, 918 F.2d at 785 (Kozinski, J.). The Court can—andshould—provide that guidance by granting this Petition.Indeed, the fact that none of these circuits have adoptedan interpretation of the one-person, one-vote principlethat is faithful to the Constitution and precedent makesthe need for this Court’s guidance all that more urgent.