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Marquee Case On The Docket: Evenwel v. Abbott

Marquee Case On The Docket: <i>Evenwel v. Abbott</i>

In contrast to last year’s docket, the Supreme Court has found a relatively long list of items generally of interest only to lawyers this year. Whether this is by design is not clear: the Court has the ability to choose from among the cases that are presented to it, but not to control which cases are appealed to it in the first place. Still, it’s not all that surprising that in a Presidential election year the Court would prefer to keep a low profile.

However, there is a very big exception, and it’s set to be argued Tuesday morning. The stakes in Evenwel v. Abbott are the metrics of the democratic foundations upon which our government rests.

The late Chief Justice Earl Warren, when asked in the twilight of his career which case he was most proud of moving through the court, gave as his answer Reynolds v. Sims, 377 U.S. 533 (1964). The case stands, in summary, for the principle of “one person, one vote.” In his opinion, Warren wrote, “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.Id. at 562. The actual rule was restated in a bit more elaborately-phrased terms, a few years later: “[W]hen members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.” Hadley v. Junior College District of Metropolitan Kansas City, Missouri, 397 U.S. 50, 56 (1970).

Reynolds v. Sims remains the law today, and the basic concept of equal representation is not directly questioned in Evenwel. But, should you imagine a cocktail of computers armed with more power and information than Chief Justice Warren could have imagined in 1964; a 2004 case establishing that partisan gerrymandering is fundamentally a political question and therefore beyond judicial review; and lawyerly cynicism concerning the phrase “equal numbers,” the result of that thought experiment may well look a lot like Texas does today.

The Texas Legislature is divided into a 150-member House of Representatives and a 31-member Senate. Each are elected from a single-member district. The results of the most recent elections are as follows:

Election YearHouse of RepresentativesSenate
200873 Democrats, 76 Republicans, 1 vacant12 Democrats, 19 Republicans
201051 Democrats, 98 Republicans, 1 vacant12 Democrats, 19 Republicans
201255 Democrats, 95 Republicans12 Democrats, 19 Republicans
201452 Democrats, 98 Republicans11 Democrats, 20 Republicans

Within those numbers, a more detailed tale is told. As we shift from the 2008 election to the 2010 election, Republicans took control of a large number of formerly Democratic seats in north Texas and in other suburban areas around the state. Geographically, the Democrats are left with pretty much only legislative seats representing the core urban areas of the four large metro areas and the Mexican border. Effectively, with the Republicans having edged the remnants of the old Dixiecrats out of that region of the state known as “North Texas,” every non-urban or non-border district in both houses of the state legislature is now controlled by the GOP. With the aid of gerrymandering, we see a nearly 2:1 partisan advantage resulting.

Texas was one of the fifteen states that under the Voting Rights Act was required to gain “pre-clearance” for its apportionment plans by the U.S. Justice Department. Thus, after the 2010 census, the Texas Legislature produced a plan called “S148,” named after its corresponding legislative bill. S148 was drafted with the assistance of extremely powerful and sophisticated voter-mapping software, the likes of which were not within the realm of imagination in 1964 but which are today sold to the general public. The Texas Legislature apportioned districts that are, pretty much, equal in terms of the overall population of each, but not at all equal in terms of the numbers of either eligible voters or actually registered voters in each: Some people don’t get the vote, after all: minors, foreign nationals, felons. Still other people can register, but do not.

Sue Evenwel is the Chair of the Titus County Republican Party.1 She lives in a rural district near Texarkana in which there is a high proportion of actually registered voters from among the population of eligible voters as compared with other districts – meaning the urban cores of big cities like Dallas, Houston, San Antonio, and Austin.2 Her lawyers cite this critical passage from Reynolds:

[I]f a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.” Reynolds, supra, at 562.

Evenwel’s contention is that, since she is in a district where there are lot of other voters, in order to elect a member of the state legislature her vote has been diluted compared to a vote in the low-registration district. Ms. Evenwel’s voting power is, she claims, diluted by a factor of 61%. In other words, if she gets one vote, the voter in the other district gets the equivalent of 1.64 votes because that voter has fewer other registered voters with whom to “compete” for expressing an electoral preference. Because her vote isn’t as powerful as that of Texans in those more urban areas, she doesn’t enjoy an equal franchise with those voters.

The State of Texas says, in response, that Evenwel’s district, consistent with the status quo ante, has about the same number of people as other S148 districts. This, Texas says, is in compliance with the the Fourteenth Amendment’s requirement that “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state….” Amend. XIV, sec. 2, emphasis added. The appropriate metric of equal representation is not how powerful an individual voter is, but how many people reside in a district.

The Supreme Court will be asked whether application of the “one person, one vote” principle must today take cognizance of the fact that not all people are eligible to vote, not all of them actually vote, and that modern political science has measured and determined what sorts of people are more likely to vote.

If Ms. Evenwel prevails, the practical result will be to shift voting power out to rural areas and away from urban areas – as Adam Liptak wrote in the Grey Lady when the case was first put on the High Court’s docket:

Counting all people amplifies the voting power of places with large numbers of residents who cannot vote legally, including immigrants who are here legally but are not citizens, illegal immigrants, children and prisoners. Those places tend to be urban and to vote Democratic.

The practical effect of Ms. Evenwel prevailing will be to shift the focus of political power away from urban areas, where relatively larger numbers of people who are not eligible voters live as compared to rural areas. This is a matter of particular focus in Texas because the trend of increasingly powerful Latino voters there is thought to contain the potential to shift the balance of political power in that state to Democrats in future elections cycles, after re-apportionment following the 2020 census. Though the prospect for change may be be especially dramatic in Texas, it may be of great significance for the entire country. Ms. Evenwel’s goal here is not just to solidify Texas Republicans’ already-impressive control: it is to offer Republicans in other states the ability to make their Legislatures look more like Texas’.

Ms. Evenwel’s brief may be found here, and an important supporting amicus brief by the American Civil Rights Union may be found here. You may well ask, “Burt, what is the historically-liberal American Civil Liberties Union doing taking the side of a Republican Party activist looking to enlarge white voting power at the expense of Latinos?” I’d tell you to go back and look more closely at the identity of the amicus here — the American Civil Rights Union is a conservative advocacy group, one which has chosen a name and acronym that looks suspiciously similar to that of the ACLU. I’d also tell you not to feel to bad because, I got fooled the first time I read that too, looking to get a quick jump on the merits.

Still, I recommend the ACRU brief anyway, precisely because the brief makes a very interesting point. When it enforces the Voting Rights Act, the Department of Justice analyzes districts based on eligible voter population, not general population, to determine compliance with the Voting Rights Act. If this case can be resolved on statutory grounds without reaching the Constitutional issue of interpreting the equal protection clause, then the Supreme Court is (theoretically) bound to resolve the matter by statute rather than by the Constitution. How, then, to read the statute? A rule known as “Chevron deference” is that any reasonable interpretation used by the agency in charge of implementing a statute is one that the Court will also apply. The Justice Department’s use of eligible voters rather than gross population as its metric for determining whether a district has been racially gerrymandered thus looms over the decision significantly in Ms. Evenwel’s favor.

In support of the status quo ante (that gross population is the appropriate apportionment metric), the State of Texas’ brief may be found here.3 You may ask, “Burt, isn’t Texas controlled by Republicans at the moment? Why are Texas politicians arguing against their own political interests?” But, of course, state officials are charged by law with defending the state’s laws whatever they are. So how will the Republican Solicitor General thread that needle?

It seems to me that if you read Texas’ brief very closely, it hints at a rule which maximizes the discretion of state legislatures to apportion by whatever method they choose. In this case, the Texas Legislature used gross population, but, if Texas had chosen to do so, it could have used adult population, eligible voters, or registered voters instead of gross population.

How will the legal question resolve? Making a prediction on that question requires asking how principled (as opposed to how partisan) the various Justices will be when the question is put before them in conference.

The text in Reynolds refers to”people,” not “voters,” and the Fourteenth Amendment refers to “persons,” not “voters” or even “citizens.” Justices using a raw textual argument seems pretty clearly bound to rule against Evenwel to me.

It seems abundantly clear from the legislative history that the Fourteenth Amendment was meant to guarantee the electoral power of newly-emancipated slaves – and thus by extension, or so it might be argued, racial minorities. Voter registration wasn’t necessarily a concern or even a practice in Reconstruction-era  America. 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. An “intent of the Framers” lens also aims the decision at a vote in favor of the respondent as well.

A federalism-heavy analysis would come down on the side that Texas’ brief hints at but does not overtly request: that as long as the metric chosen by the state is reasonable, and the result is an equal number of whatever metric is chosen in each district, the Fourteenth Amendment is satisfied. This would lead to a vote in favor of Texas in this case, but leave the door open for a state that used the voter registration metric after some future reapportionment.

But, a Justice at pains to assume a posture of judicial modesty and deference to legislatures would, or at least could, resolve the matter through analysis of the Voting Rights Act’s statutory protection against racial gerrymandering, defer to the Justice Department’s use of registered voters as the metric to determine equality of voting, and thus could wind up voting in favor of Ms. Evenwel. For such a line of reasoning, the Constitution would not be the turning point.

A ruling in favor of the respondent looks to me to be the result that both applying the text of the Constitution and its intent compels. Still, at least four Justices thought that the argument about the proper metric of apportionment was worthy of consideration – so I can’t predict actual unanimity. We might see some Justices not going as far as Ms. Evenwel urges and saying the right metric of equal voting means equal voting power. If so, then we can expect dissent.

Others might say that a state can choose that metric, but that Texas did not do so here, and that gross population is a fine metric, too. I think we’ll get at least Scalia and Kennedy voting this way, concurring with the the majority.4 Should they do so, they would likely lay the groundwork for a challenge to reapportionment after the 2020 census. 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.

  1. Ms. Evenwel’s personal contact information can be readily found on the Internet, including at the linked page. I’m sure that partisans are sending her lots of unpleasant communications opining about the effort being undertaken in her name with various levels of understanding of what’s actually at stake. Let’s no one from this blog contribute to this, please. []
  2. Especially Austin, I’m willing to bet. []
  3. The United States of America has filed a brief taking Texas’ side of the dispute. And, for what it’s worth, the actual ACLU brief, in support of Texas, can be read here. []
  4. It’s just possible that this case might give us an unusual high-profile split between Justices Scalia and Thomas. They voted together 78% of the time last term; the Court’s closest cousins in voting patterns, however, are the Ginsburg-Breyer-Sotomayor-Kagan bloc, who vote together more than nine times out of ten. []

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Pseudonymous. Practices Law. Lives in Southern California. Former Editor-in-Chief of Ordinary Times. Homebrewer. Atheist. No Partisan Preference. Likes: respectful and intelligent dialogue, good wine, the Green Bay Packers, and puppies. Dislikes: mass-produced barley pop, magical thinking, ketchup, and insincere people. Follow him on Twitter at @burtlikko, and on Flipboard at Burt Likko.

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60 thoughts on “Marquee Case On The Docket: Evenwel v. Abbott

  1. 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.


  2. ” 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?


    • 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.


    • 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.


      • 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.


  3. 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.


    • 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…


      • 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.


      • 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.


        • 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.


        • 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.


    • 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.


    • 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.


  4. 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.


  5. 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.


  6. 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.


  7. 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.


  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.


    • 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.


      • 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?


    • 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).


    • 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.


  9. 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.


    • 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.


      • 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.


        • 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.


          • 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.


            • 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.


              • 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.


  10. 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.


    • * 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.)


    • 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.


  11. 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…


    • 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.


    • 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.


  12. 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.


    • 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?


  13. 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.


    • 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.


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