The most important case on the Supreme Court’s docket for this Term is now history: eight Justices agreed on the result in Evenwel v. Abbott, and six voted for a surprisingly modest court opinion authored by Justice Ruth Bader Ginsburg. Even more surprisingly, the opinion turns out to be relatively short. Continuity is the order of the day; there was no political earthquake.
Recall that Sue Evenwel. the chair of a local Republican party organization, sued the State of Texas for using overall population as the metric upon which electoral districts are drawn. Ms. Evenwel lives in a more rural district, and one trait of rural as opposed to urban districts is relatively higher rates of voter registration. Evenwel’s theory, then, was that as a practical matter her vote was less influential on the outcome of an election than would be the vote of someone in an urban area, and therefore was diluted.
No dice, said the Supreme Court: a state can use overall population as its metric for allocating judicial districts. But Justice Ginsburg’s opinion stopped short of saying that it must do so, though there are hints that she would have gone there had she been able to muster up the votes: “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.”
Texas seemed to want to reserve to itself the option to draw district boundaries based on ‘voter-eligible population’ rather than total population: meaning the number of people who could, if they wanted to, register to vote. Children, non-citizens, felons, and other people who for whatever reason would not be allowed to register wouldn’t count in such a scheme. The majority opinion doesn’t opine about this: “…we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.”
Why didn’t she go further and announce that population was the metric? Well, she wanted at least five votes fully joining in the opinion, and based on the concurring opinions of of Justices Thomas and Alito, it seems her more conservative Brethren weren’t quite ready to say that what Texas asked for would be out of the question.
Justice Clarence Thomas concurred, writing separately in his own inimitable style, “…the majority has failed to provide a sound basis for the one-person, one-vote principle because no such basis exists. The Constitution does not prescribe anyone basis for apportionment within States. It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government.”
The Court does not purport to decide whether a State may base a districting plan on something other than total population, but the Court, picking up a key component of the Solicitor General’s argument, suggests that the use of total population is supported by the Constitution’s formula for allocating seats in the House of Representatives among the States. Because House seats are allocated based on total population, the Solicitor General argues, the one-person, one-vote principle requires districts that are equal in total population. I write separately primarily because I cannot endorse this meretricious1 argument.
Had Justice Ginsburg gone further than she did, she’d apparently have lost one of either Chief Justice John Roberts or Justice Anthony Kennedy joining in her opinion. So instead, we get this rather more limited holding.
Can a state use registered voters, or eligible-to-register people, as the basis for allocating districts? We don’t know. Texas didn’t do that here, and for the apparent sake of keeping a majority together with two of the conservative Justices signing on to her opinion, Justice Ginsburg chose not to answer that question. All we do know is that using total population to draw district lines does not violate the one-person, one-vote rule of Reynolds v. Sims2 So Sue Evenwel is out of luck for the moment, and in the future, a state will need to summon the political will to actually try her theory in practice to find out if it is even permissible.
In the meanwhile, our politics goes forward along the same ground rules for allocation of legislative districts which it has observed since at least the 1960’s.
Image by Internet Archive Book Images
- Definition per the Oxford Dictionary of American English: Apparently attractive but having in reality no value or integrity; archaic, relating to or characteristic of a prostitute. [↩]
- Which, respectfully to Justice Thomas, is an application of the Equal Protections Clause of the Fourteenth Amendment whose logic has not been in substantial question for at least two generations now. [↩]