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29present apportionment satisfies the Equal ProtectionClause,” id. at 93, but that using total population, in lightof the high concentration of military and other transientpersons on Oahu, would have been “grossly absurd anddisastrous,” id. at 94 (quotation omitted). Burns is onlyexplainable as rejecting total population as a mandatorybasis for redistricting.At base, reliance on total population as the startingpoint for reapportionment is plainly unconstitutional whenit leads to a grossly unequal distribution of eligible voters.In many cases, the use of total population will sufficientlyprotect the Fourteenth Amendment rights of voters as“eligible voters will frequently track the total populationevenly.” Chen, 206 F.3d at 525. But where, as here, largenumbers of persons ineligible to vote are concentratedin certain geographic locations, supra at 9-10, the use oftotal population does not fairly protect the voters’ right toan equally weighted vote. Gaffney v. Cummings, 412 U.S.735, 746 (1973) (“[I]f it is the weight of a person’s vote thatmatters, total population … may not actually reflect thatbody of voters whose votes must be counted and weighedfor the purposes of reapportionment, because ‘censuspersons’ are not voters.”).In Chen, which the lower court was bound to followin this case, the Fifth Circuit sought to avoid this issueby concluding that the choice between total populationand eligible voters is a political question that is thereforejudicially unreviewable. Chen, 206 F.3d at 525. But theFifth Circuit’s political-process approach is no moreviable than the “access” theory that currently reignsin the Ninth Circuit. This question has been settled formore than 50 years. As noted above, Baker held that the