Recently, I attended oral arguments in the Supreme Court case Evenwel v. Abbott. At the heart of this case is a question about the meaning of the constitutional principle, “One Person, One Vote.” However the Court decides, the issue may have profound consequences on the nation’s elections.
The One Person, One Vote principle requires that each state redraws the boundaries of its legislative districts after the census count is completed every 10 years and that each district contain a population that is roughly equal in size to every other district’s population. What the Supreme Court is deciding in Evenwel is how “population” should be defined: should states be allowed to draw legislative districts that have equal “total populations,” or does the Constitution require that states draw legislative districts that have equal “voter populations”?
Since the Court first announced the One Person, One Vote principle in the 1960s, states have almost uniformly defined population as “total population.” During the December 8, 2015 oral arguments, the Justices considered whether Texas’s legislative redistricting map— which was likewise drawn with districts that contain equal total populations—violated the Equal Protection Clause of the 14th Amendment. The petitioners challenging the law argued that by equalizing total populations among districts, Texas unconstitutionally diminished the voting power of voters who live in districts that contain large numbers of people ineligible to vote and enhanced the voting power of voters who live in districts with small numbers of people ineligible to vote.
But as lawyers for Texas and the federal government pointed out to the Justices, a legislator represents every person who lives in the district, not merely those people eligible to vote. Affording every person equal political representation and equal access to legislators are compelling reasons not to upset the status quo. As Justice Ginsburg pointed out, if equal “voter populations” had been required a century ago, then half the country’s total population who could not vote—women—would have been completely excluded from consideration when a state drew its legislative districts. This would have even further diminished the political participation rights of women, compounding their disenfranchisement with a denial of equal political representation and equal access to lawmakers.
The same problems exist today but for many other people who typically cannot vote: immigrants, people with mental disabilities, people who were convicted of felonies and finished serving their time, and as Justice Breyer emphasized, children.
Each person who happens to fall into one of these categories may not be eligible to vote, but like voters, they pay taxes, have jobs, raise families, attend schools, and participate in their communities. The same political issues affect voters and nonvoters alike. Thus, each person has an equal need for legislative representation and access regardless of their ability to vote—and drawing districts based on total population helps ensure that this need is satisfied. And, as Justice Breyer put it, we’ve seen this story before: in colonial America, the British government told Americans not to worry about their lack of equal representation in the British Parliament because the Parliament could fairly represent every American’s interests without it. We all know how that story ends.
Justice Kennedy proposed a novel idea: perhaps states should draw districts that contained both equal total populations and equal voter populations. Texas’s lawyer acknowledged this may be possible, but only at a great cost: disregarding all other traditional redistricting principles that the Court has previously recognized as valid, such as drawing compact districts, drawing districts that correspond with county and city boundaries, and drawing districts that do not break apart communities that have shared interests. Justice Kennedy conceded that if equal voter populations were required, these other goals would probably be impossible to satisfy.
The Justices also considered a variety of other arguments. Justice Kagan, for instance, emphasized a textual justification for allowing states to use total population when drawing districts: the Constitution states that the number of congressional districts that each state is given must be based on each state’s total population, and thus it would be inconsistent for the Constitution to simultaneously require that total population be used in this context while prohibiting the use of total population in the redistricting context.
The Justices also discussed whether requiring equal voter populations was feasible given the different perspectives on how “eligible voter” should be defined and the limited availability of data that identifies eligible voters. These issues received somewhat less attention than the arguments concerning representational interests, but the discussions were nonetheless robust, and no apparent consensus emerged from the Justices on how to resolve them.
But by the end of the oral argument, it was clear that some Justices were leaning in favor of allowing states to draw districts with equal total population, and others were leaning in favor of requiring states to draw districts with equal voter population. Predicting how a case will be decided based on what the Justices said at an oral argument is always a risky business, but the decision may come down to Justice Kennedy, who weighed both sides’ arguments and suggested splitting the difference, and Justice Scalia, who surprisingly remained silent the entire argument.
We will probably have to wait until the summer of 2016 to know for sure, but one thing is certain: whatever the Court decides, it will have profound consequences for the essence of our country’s democracy and the meaning of our constitution’s guarantee of “One Person, One Vote.”
