Marquee Case On The Docket: Evenwel v. Abbott

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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60 Responses

  1. LeeEsq says:

    There are some good or at least clever legal arguments being made by Evenwel but this still seems like a case of hyper-Constitutional Hardball and super-gerrymandering to favor Republican voting districts. The fact that the Republican dominated state of Texas is deciding to fight this hard is evidence that many conservative and Republicans want nothing to do with Evenwel’s argument. The last time something comparable happened was just after Prohibition, when states refused to redistrict after the 1920 census because it mean an instant dilution or outright repeal of the recently won battle for Prohibition from the dry standpoint.

    The most sensible thing that the Court could do was to refuse to hear the case because it is a political question, the dodge that the Court usually takes when these types of questions come up. Since it is already late for the Political Question dodge, the Court should affirm the status quo because the bulk of the texts regarding electoral districts and voting rights refer to people rather than people eligible to vote.Report

  2. aaron david says:

    ” It seems all but inevitable to me that we’ll be revisiting this same issue ten years from now – as inevitable as the likelihood that by then, the membership of the Court will have changed substantially.”

    Do you think they will just punt, take the path of least friction so to speak, as they know that many of them will be gone in a few years?Report

    • Burt Likko in reply to aaron david says:

      Yes, and that’s what concerns me. The path of least resistance leaves open for a later date the availability of multiple metrics. Whether those other metrics favor Republicans or Democrats in the long run is not easy to predict. A generation from now, Republicans might wish for a gross population metric but be faced with the legacy of a case that, in 2015 or 2025, blows that metric up.Report

    • LeeEsq in reply to aaron david says:

      Texas politics is dominated by the Republican Party and based on the actions of the Texas government in response to the case, even they think that Evenwel’s lawsuit is going too far. Part of this might be because Evenwel is attacking an act of the Texas government but I suggest part of it is at least because her argument is too much for the Republicans in control of Texas politics and they realize that this could very well blow up in their face latter.Report

      • Mo in reply to LeeEsq says:

        @leeesq This could be the case. Something like this would disproportionately impact Hispanic Texans. Texas has a deep well of Hispanic Republicans and likely do not want to have a Prop 187 type destruction of the party.Report

  3. Michael Cain says:

    Thank you, Burt, I didn’t realize how much I missed these summaries until I’d read this one.

    The political power of rural America went into terminal decline ~1880, when the federal government ran out of high-quality farmland that it could give away. They’ve been granted a bit of a respite lately by “self district packing” by the urban areas in a bunch of middle-sized states. I think that’s only a temporary thing, as the urban areas continue to outgrow the rural ones everywhere. Consider the case of Nebraska as an extreme example: when the Unicameral there is redistricted after the 2020 census, 25 of the 49 members will be elected from just three of the state’s 99 counties. Some of my acquaintances in rural Nebraska are already expressing concern.

    The Supreme Court is the most extreme example of this. The Court is overwhelmingly made up of people who went to college at one of the Ivies and whose adult life has been spent in the northeast urban corridor. I worry that this may be a Bad Thing (this is probably the only subject that Justice Thomas and I have ever agreed on). I subscribe to the unorthodox view that one of the things that motivates CJ Roberts is that his court not be caught on the wrong side of history. Combine that with the Court members’ urban bias, and you get a prediction that Texas wins, with a possibility that total population becomes the only acceptable metric.

    From a completely different direction, the motivation for this case — which is not the same thing as which national groups may jump on the bandwagon — could be entirely local. During the last drought, the Texas legislature set up a water projects bank using a portion of the state’s emergency fund (which had gotten embarrassing large due to high oil prices). It was commonly understood that the real purpose of the bank was to fund projects that would collect and store water in rural East Texas for transport to the rapidly growing urban areas. Urban Democrats and suburban Republicans passed it, over almost unanimous opposition from rural Republicans. Ms. Evenwel’s (and the Titus County Republican Party’s) entire motivation may be based on that.Report

    • Morat20 in reply to Michael Cain says:

      It’s been rather..interesting…to read about rural complaints. Over the last few years, I’ve read a number of stories from politicians or voters in rural districts that boil down to “We keep getting outvoted because the majority lives in non-rural districts, and that’s wrong”.

      I’ve seen solutions ranging from secession (Colorado, I think), to changing state legislative rules to allocate reps not by population but by county or square miles, to outright weighting rural votes to make sure there’s parity.

      Most of it is dismissed, but I’ve been hearing it more and more. One man, one vote only counts if you’re a majority. Otherwise, there’s a problem that needs to be fixed…Report

      • Michael Cain in reply to Morat20 says:

        Secession movements motivated by “escape from the tyranny of the urban/suburban majority” in Colorado, California/Oregon, and Maryland that I know about in the last few years. I got to ask questions at a seminar where one of the panel members was the treasurer from the Colorado organization. He was well-versed in the legal constraints involved in creating a new state. He was also aware of what kind of budget the new state could support, but regarded no Medicaid, no higher-ed, K-12 education reduced to a bare minimum set of classes, and fewer paved highways as features, not bugs.Report

        • Saul Degraw in reply to Michael Cain says:

          So he is a nut especially in regards to K-12.Report

          • There’s a line somewhere between “nut case” and “representative of a significant minority opinion.” There are parts of the country where a back-to-basics limited-choice approach to K-12 education is mainstream — teach fewer things but teach them better.

            I thought he was a nut case, or at least ignorant, on other subjects. A state can choose not to participate in Medicaid. They don’t get to make that choice about SNAP (formerly food stamps). So the new state would have to have a bureaucracy and an approved computer system to handle client intake, send out the money, perform federally required audits, etc. Similarly for unemployment insurance — a state doesn’t have to have a conforming program, but there are steep federal tax consequences for employers if the state doesn’t.Report

        • The thing about such efforts is that there is both Constitutional authority and historical precedent for one part of a state seceding from its mother state, so long as it remains within the Union of the United States of America. Although it was a messy process. That’s a little different than a proposal which (coincidentally to the efforts of people sympathetic to Ms. Evenwel?) was recently under discussion within the Texas Republican Party.Report

      • LeeEsq in reply to Morat20 says:

        One possible solution to the issue of rural and urban/suburban representation would be to get rid of geographic representation through electoral districts. Lots of countries manage to have representative legislatures sensitive to the needs of many or most of their citizens without resorting to electoral districts and first past the post voting. A significantly responsive civil service usually takes over the need for having a person in the legislature for a particular area.Report

        • Burt Likko in reply to LeeEsq says:

          At various points throughout U.S. history, 39 states have had at-large Congressional seats. Since 1965 and the passage of the Voting Rights Act, state use of at-large representation has been considered inherently suspect as racially biased: white voters historically have been the majority and they vote in higher proportion than black voters; thus, in a state where black or black-sympathetic candidates are thought to be unacceptable to the white majority, in an at-large district, a black or black-sympathetic candidate doesn’t have a chance.

          With predictable and regrettable policy results. Observe the role of white southern Democrats in the Senate, elected at-large from their entire states, as the most prominent veto point preventing, delaying, or moderating the passage of civil rights laws in the 1950’s and 1960’s. It took a Southern Democrat of remarkable political ability, acting under a unique cocktail of personal principle and personal ambition, to find a way to break up the logjam his colleagues created.

          Which doesn’t mean that at-large representation necessarily can’t be a part of the toolbox now. But bear in mind you’re laboring against an ugly history with such a proposal.Report

          • Will Truman in reply to Burt Likko says:

            I oppose the idea, but at large representation with FPTP vs at large with proportional representation are world’s apart.Report

          • LeeEsq in reply to Burt Likko says:

            What Will said. Non-geographic representation does not work with FPTP but it does work with proportional forms of voting because the party selects a list of people who will fill the seats. If they get a third of the vote than the first third of the list gets seats.Report

        • Road Scholar in reply to LeeEsq says:

          I think it could work as long as each voter only gets to cast exactly one vote for one candidate. If anything, the results could very well skew anti-majoritarian.Report

    • Saul Degraw in reply to Michael Cain says:

      Rural v. Urban is a long-standing fight in the United States and possibly human civilization itself. There are serious concerns where rural places can be dominated by urban landscapes but there can be also naked power grabs by rural locations at the expense of the majority of urban and suburban voters. Why should urban and suburban voters subsidize people who want a rural existence? You see this in New York over transportation budget fights. Cuomo called MTA’s budget request “bloated.” Yet he is willing to spend tens or hundreds of millions on a small little subway to airport extension and NYC-Metro money basically keeps upstate NY on life support.

      I think Lee is more right than wrong. This is a naked hyperpartisan power grab by rural Republicans and it is telling that even hyper-Republican Texas does not want to go along.

      I don’t see why power should be transferred to rural locations. They already probably have more power than they should anyway because of old-school districting and gerrymanders.Report

    • Stillwater in reply to Michael Cain says:

      I subscribe to the unorthodox view that one of the things that motivates CJ Roberts is that his court not be caught on the wrong side of history.

      I don’t think you’re alone in holding that belief Michael. See, for example, his “argument” in the Sebelius tax v penalty case.

      That said, I don’t know that there’s a “right side of history” in this case. It seems purely political, in my view, without any deeper social significance, and therefore purely an exercise in nutpicking. Prima facie, it seems like the burden is on those who’d change the calculus from “persons” to “eligible voters” on objective (rather than political) grounds, and while I think that argument can be made, it strikes me as running counter to the spirit as well as the text of the constitution.

      Seems to me the only leverage upon which this case can turn, as Burt pointed out, is that VRA requirements are measured by eligible voters and not persons, and reconciling that discrepancy will, it seems to me, drive most of the Justices decision-making.Report

  4. Jaybird says:

    This is one of those problems with Permanent Apportionment.

    We need to have a number larger than which a state cannot have a single representative represent. 30,000 is the number that made sense to the founders, but I’d be cool with entertaining others within the same ballpark (an order of magnitude or thereabouts).

    You get more than this number? WHAM, new representative. Fewer? FOOD FIGHT and get rid of one.

    This would have the additional benefit of cutting gerrymandering off at the knees.

    So if you have an issue? Call your representative. Odds are, the new one knows a hell of a lot more about you and yours than the current one does. He probably knows your town and, if you live in a city, the big cross streets near your street.Report

  5. Saul Degraw says:

    Great post Burt.

    I am largely on Lee’s side of the analysis. This seems like rural America trying to forestall its death. These is a very old dynamic in American politics and goes all the way back to Jefferson arguing with Hamilton. There is a long pastoral streak in American politics where rural Americans view themselves as they real and serious folk. Even liberals can fall into this trap. I’ve known rural liberals prone to calling country folk “real folk.” I always wonder what makes country people more “real” than urban or suburban people.Report

  6. Tod Kelly says:

    Looking outside the courtroom, I predict whatever conversation occurs on this topic will bolster my theory that, for the vast majority at least, the argument of limiting courts to strict text is a strategy and not a value.Report

  7. Kim says:

    Texas as the hallmark of Gerrymandering?
    I bet it isn’t half as bad as Pennsylvania, where you really do have more like a 50/50 split, based on the Presidential… and yet the State Legislature is so heavily tilted towards the Republicans… a fair districting would eliminate 1/3rd of the Republicans in the Legislature, and a “tilted-D” would eliminate two thirds.Report

  8. The legalities may be interesting, but this come down to Republican vs. Democratic seats in Congress and state legislatures. It’s going to be 5-4 in the obvious way, and all the high-minded legal arguments we see (present company very much excepted) are going to be a thin tissue of BS over the real issue.Report

    • Saul Degraw in reply to Mike Schilling says:

      Maybe but it is interesting to note that very Republican Texas does not support the plaintiff in this case.Report

    • The Texas GOP has not filed an amicus brief. Neither, for that matter, has the Texas Democratic Party.

      A group of Texas Democrats elected to the state senate have filed an amicus opposing Evenwel’s argument, but they do not identify themselves as Democrats. Nor do the Tennessee Republican legislators who filed an amicus supporting Evenwel.

      No other politicians or parties, on either side of the aisle, have directly participated in the briefing at all. Proxies and advocacy groups are doing nearly all the work on both sides here.Report

      • A group of Texas Democrats elected to the state senate have filed an amicus opposing Evenwel’s argument, but they do not identify themselves as Democrats. Nor do the Tennessee Republican legislators who filed an amicus supporting Evenwel.

        How many of the amicus briefs in Shelby County identified themselves as partisan?Report

    • Kolohe in reply to Mike Schilling says:

      I don’t think it’s a slam dunk that one policy or another always helps one side or another. The elephant in the room on this is obviously the 3/5 compromise, and the whole point of that is each side wanted people to count in some ways but not in others (but were mirror images on which cases they wanted people to count or not).Report

    • If the question the Court chooses to answer is “Must states use something other than total population figures in districting?” — which is what I understand plaintiffs are asking — then there aren’t five votes to toss most of the districting plans in the country in an election year. If the Court chooses to answer the question “May states use something other than total population figures in districting?” then maybe, but I don’t think that’s what plaintiffs are asking. Although I could see five votes for the idea that elected officials don’t represent acres or trees, but do represent all the people who live in their district, young and old, citizen and not, so total population is the only metric.Report

  9. Dand says:

    Would switching from persons to eligible voters benefit Republicans? Children are note eligible voters and I’d surprised if the ratio of eligible voters to persons wasn’t higher in Greenwich Village than in suburban Utah. Such a standard would benefit white and black urban and rural (since the population there tends to be old) areas at the expense of Hispanic and suburban areas.Report

    • Saul Degraw in reply to Dand says:

      There are a lot more people in urban areas but a lot more of those people are not eligible to vote for a variety of reasons: They are minors, immigrants (documented and undocumented), and felons. The actual number of eligible voters is higher in rural areas. Yes San Francisco has many more people than plaintiff’s district but the number might be much smaller when you look at American citizens over the age of 18.Report

      • Dand in reply to Saul Degraw says:

        That would depend on the type of urban area; a Hispanic heavy urban area would have low eligible voters to population ration while a gentrified urban area would have a very high eligible voter to population ratio.Report

        • Mo in reply to Dand says:

          And a rural farming area would likely have a low eligible voters to population ratio.Report

        • Saul Degraw in reply to Dand says:

          I think you are estimating the number of gentrifiers as being citizens. My girlfriend and many of her friends are techie gentrifiers. They are also here on Visas and Green Cards. NYC has a lot of immigrants at all levels of socio-economics. There are also a lot of people in NYC who say they live elsewhere. Lots of people might have a studio apartment in NYC but their real residence is in another state like PA or CT. They commute into the city on Sunday-Wednesday and go home on Thursday night.Report

          • Dand in reply to Saul Degraw says:

            I just compared data from Lakeview, Chicago and South Jordan Utah, in Lakeview 12% of the population is under 20 while in South Jordan 39% were under 20. 21% of Chicago residents are foreign born and that number is certainly lower in Lakeview. So the eligible voter to population ration is almost certainly higher in Lakeview than South Jordan.Report

            • Mike Schilling in reply to Dand says:

              I’d expect Utah to be a wild outlier as far as % of the population under voting age. No time right now to look up the actual numbers, but from what in observed when I lived in SLC, marrying young and having lots of kids is the norm. And that figures to be, if anything, more true in rural areas.Report

              • Dand in reply to Mike Schilling says:

                I agree, I just think that the effects of switching to an “eligible voters” standard are more complex than some people suggest.Report

              • Mike Schilling in reply to Dand says:

                Agreed, there would be lots of unexpected local effects.Report

              • Kazzy in reply to Dand says:

                I don’t even know how we gather that information. And would be shocked in particular at Republicans supporting its collection.Report

              • As far as median age, yeah, they’re an outlier on the low end. I’m not sure how much the rural part matters. 80% of the population is in the five Wasatch Front counties, and the lion’s share of the state’s population growth is there as well — much of it from inward migration from other states, not high birth rate.

                I would speculate that the story in Utah would be much the same as the behind-the-scenes story I’ve heard about in Texas — the rural Republicans in Texas are effectively in federal court trying to pry power from the hands of the suburban Republicans in Texas.Report

          • Dand in reply to Saul Degraw says:

            I just looked up Manhattan community board 2’s demographics and 8.8% of the population is under 18 and 75% of the population is non Hispanic white; I’d be shocked if the eligible voter to population ratio isn’t higher there than in South Jordan.

            I apologize for multiple posts.Report

  10. Kazzy says:

    If I’m understanding correctly, we have the following situation…

    Area A:
    5000 Residents
    2500 Eligible voters
    1500 Registered voters
    1000 Actual voters

    Area B:
    5000 Residents
    4000 Eligible voters
    3500 Registered voters
    3000 Actual voters

    The question seems to be whether Areas A and B should have the exact same number of representatives based on their equal population -OR- some divergence in the number of representatives based on the various discrepancies in “voters” (with different discrepancies based on different ways of counting “voters”).

    If I recall, Democrats argued against the raw resident count in certain areas because of how prisoners were counted. If Ruralia housed a prison of which 80% of the inmates were from Urbania, this artificially boosted the population of Ruralia with folks barred from voting*.

    But to me, that is a slightly different issue. Ignoring the specifics (e.g., the politics), it would seem fairest to me to base representation on population as the decisions made by representatives are (potentially) felt by all residents, regardless of their voter status. Now, SCOTUS is not necessarily charged with some abstract notion of fairness but rather interpreting and enforcing various “rules”, so I can’t weigh in on that.

    * Though it boggles my mind that we strip these people of their right to vote. And that we continue to deny them this right after release. Like, that makes no fucking sense to me. But it is what it is, I guess…

    ETA: I think we can square the circle of the current issue with inmates by simply not counting them when determining population counts. This isn’t without fault but it removes all sorts of perverse incentives. Trying to trace them back to where they did/would live seems to error prone. Were we to actually offer them the right to vote, than I think you could include them in the population.Report

    • KatherineMW in reply to Kazzy says:

      * Though it boggles my mind that we strip these people of their right to vote. And that we continue to deny them this right after release. Like, that makes no fucking sense to me. But it is what it is, I guess…

      I agree. Felon disenfranchisement is fundamentally anti-democratic. They live in the country, they are citizens, and they are paying or have paid their debt to society. Committing a crime doesn’t make you cease to be a member of the country.

      And in combination with the War on Drugs and other disproportionate targeting of black and Hispanic people by law enforcement, it’s pretty transparently a deliberate form of racial discrimination.

      In Canada, even people who are currently imprisoned can vote. (In answer to the first question this raised in my mind – their votes are counted towards the district where they lived before their imprisonment, not the district where they are imprisoned.)Report

    • DavidTC in reply to Kazzy says:

      Though it boggles my mind that we strip these people of their right to vote.

      I have, hilariously, often argued the exact same thing as this lawsuit, or maybe the exact opposite thing.

      Not that we should base representation on registered voters…but on *possible* voters. At the *state* level. I.e., kids don’t count in state population, unless you let kids vote. You don’t let people convicted for crimes vote, well, you don’t get to count them as voters.

      However, that can’t be done even with a constitutional amendment. (Can’t reduce the representation of any state without its consent.)

      Her logic, however, is strangely ass-backwards. But here’s a funny outcome: What if the courts said ‘You have a point, less people voting in other districts does dilute the vote in yours compared to theirs’, and ordered *Texas to make sure that more people in those other districts voted*? Mandated that it run registration drives and GOTV in Democratic districts.

      Which would, of course, solve her complaint, although certainly not in the way she wanted.Report

  11. Patrick says:

    This is one of those cases where I can’t hardly wait to see Scalia’s opinion… because the nakedly partisan outcome he would likely prefer ideologically is clearly at odds with the plain reading of the text of the Constitution… and I’m always darkly amused to see if he chooses to follow his loudly exclaimed school of Constitutional interpretation, or if he jettisons it quietly by just signing on to another judge’s opinion, or if he totally pretzels a logic bomb trying to square a circle.

    I’m betting on squaring a circle in this case, because I figure he had to be one of the four voting to get the case on the docket, so he had to have an idea about what he wanted going in. But I could be wrong…Report

  12. Dand says:

    Here’s a map that allows you to see how every district in the country at both the federal and state level will be effected.

    eyeballing the map it looks like my guess was right, in Texas changing the standards would benefit Republicans, in Utah it would benefit DemocratsReport

    • Dand in reply to Dand says:

      Deos anyone know what the story behind State House District 63 is? It looks like I gentrified urban district, but it’s represented by a Republican?Report

    • Dand in reply to Dand says:

      In Massachusetts I don’t think it would make much of a partisan difference, it would hurt the poor urban area the most but the least effected areas would be the gentrified parts of Boston and the rural area in western Mass., both of which are strongly democratic.

      In New Hampshire it would benefit the democratic rural northern part of the state at the expense of the suburban southern part of the state.Report

  13. Don Zeko says:

    How did I take this long to see the poem subtitle to this post on the front page? Two thumbs up.Report

  14. Kolohe says:

    Related, the Supremes ordered a federal court to hear a Maryland case on gerrymandering that the court had previously dismissed..Report

    • Yhwh in reply to Kolohe says:

      It’s a very odd case as it’s brought by a registered Democrat and Democrat lawyer against a Democratic party controlled state legislature. If the Supreme Court or a district court rules against the state it could easily be used as precedent against many Republican states.Report

  15. Patrick says:

    So apparently Scalia didn’t offer one question.

    This is so mind-boggling to me, I’m having a hard time interpreting that as anything but a huge sulk.

    So I’m revising my assessment… this case must have got on the docket because Sotomayor, Kagan, RBG, Breyer, and *Roberts* wanted it on the docket.

    So I’m swinging to the opinion that Mr. Cain is correct, above, and so is Stillwater.

    Case goes 6-3. Kennedy and Roberts both go with the majority. Roberts writes a separate concurrence.Report

    • Burt Likko in reply to Patrick says:

      If Scalia’s got no questions, he both a) doesn’t believe that a single one of his colleagues is persuadable and b) doesn’t actually have a strong opinion on the case at all. Either proposition on its own is difficult-to-impossible to believe. Scalia asks questions just for the fun of it; the man richly enjoys interplay with counsel. And he’s almost always got an incisive question prepared, even on the most dry statutory interpretation cases out there.

      …Perhaps he wasn’t feeling well?Report

  16. DavidTC says:

    Indeed, there is a solid argument that voter registration was itself created for the purpose of disenfranchising the very people the Fourteenth Amendment sought to enfranchise.

    As someone who has always thought that voter registration was being *used* for such purposes, how on earth did I not realize that such a thing only came into existence to disenfranchise? I had stupidly assumed it had always been around.

    Voter registration makes no sense in the modern era, and neither does the almost insane idea of operating the identification system at the *state* level out of randomly-distributed locations.

    The way it should work: Walk into the local courthouse with birth certificate or citizenship papers or some witnesses that will swear under threat of perjury as to your identity and status, walk out with a photo id, and you can vote using it.

    There is absolutely no advantages of the current system over that, except the current system makes it *really* hard for certain people to vote.Report

    • Michael Cain in reply to DavidTC says:

      Western states are moving relatively rapidly to universal vote by mail. Prove you’re eligible once, and each election after that you get a ballot in the mail, that you can return in the mail. I have eastern friends who tell me that there must be massive fraud going on in there somewhere, if only we would look harder. As I understand it, Oregon has been looking quite hard for 20 years now — at some point, my friends need to admit that there’s no more fraud than in-person voting produces.Report