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96 N.Y.U. L. Rev. Online 1 (2021)

handle is hein.journals/nyulro96 and id is 1 raw text is: THE CONTINUED RELEVANCE OF THE EQUAL
ACCESS THEORY OF APPORTIONMENT
J. COLIN BRADLEY*
The one person one vote doctrine contains a core ambiguity: Do states need to equalize
the voting strength ofvoters in each district? Or do they need to equalize the total number
ofpeople in each district? This difference matters when demographic trends lead to large
numbers of noncitizens living in some districts but not others. When that happens,
equalizing the total population across districts leads to large differences in the number
of voters in each district, and differences in the voting power of voters across districts.
In 1990 the Ninth Circuit held in Garza v. County of Los Angeles that the First and
Fourteenth Amendments together require states to equalize the total population across
districts, no matter the distribution of noncitizens and other ineligible voters. But that
approach has not caught on, and recently the Supreme Court signaled that it thinks
the Garza approach is inconsistent with the leading Supreme Court precedent of Burns
v. Richardson, which allowed Hawaii to equalize the number ofregistered voters rather
than the total population across districts. This Essay provides a reading
of Burns according to which it holds that the goal of apportionment is to fairly distribute
representatives across the to-be-represented population the group of more or less
permanent residents who belong to the political community and that sometimes the
total population reported in the Federal Census is an inaccurate measure of this.
Thus, Burns should not stand  as an  obstacle to a modern    acceptance of
the Garza approach if the Court is forced to revisit these issues after the 2021
redistricting of state legislatures.
INTRODUCTION..............................................................................................1
I THE GARZA EQUAL ACCESS THEORY..........................................................6
II BURNS IS NOT INCONSISTENT WITH GARZA ...............................................8
A .  Chen  v. City  of H ouston  ........................................................ 8
B. Burns v. Richardson and the To-Be-Represented Population.....9
C. The Limits of Defining the To-Be-Represented Population........11
CONCLUSION ...............................................................................................13
INTRODUCTION
In 2016 the US Supreme Court decided Evenwel v. Abbott, a case in
* Copyright © 2021 by J. Colin Bradley J.D. Candidate, 2021, New York University School
of Law; M.A., 2018, Princeton University Department of Philosophy; B.A., 2014, University of
Chicago. I would like to thank Professors Sam Issacharoff, Burt Neuborne, and Rick Pildes for
many discussions of these themes, and for reviewing previous drafts. I would also like to thank
Natasha Merle and Deuel Ross of the NAACP Legal Defense and Educational Fund for introducing
me to a number of these issues. Thanks also to the editors of the New York University Law Review
for careful and helpful edits, and to Eleanor Gordon-Smith for constant encouragement and support.

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