The Petition Clause and the Constitutional Mandate of Total-Population Apportionment

The Constitution guarantees an equal right to representation for all residents of the nation-citizens and non -citizens, voters and non -voters alike. Yet ongoing political and legal controversies over the appropriate basis for state legislative apportionment and satisfying the "one person one vote" doctrine highlight the uncertainty about how the constitutional commitment to universal representation should be instantiated. Scholars and advocates argue that, at a minimum, the right to equal representation implies a constitutional mandate that state legislative districts be apportioned based on total population, rather than Citizen Voting Age Population or any other less inclusive measure. But leading arguments for that position, based on the Equal Protection Clause and the mechanism of "virtual representation," are seriously incomplete. This Article argues that the Petition Clause of the First Amendment should play a central role in these debates over the institutional design of representative democracy. Specifically, the Petition Clause and the practice of petitioning that it protects provide the link between universal representation and state legislative apportionment. The Petition Clause implies a right of equal access to one's representative, and this in turn requires that legislative districts contain equal numbers of people-voters and non -voters alike.