Supreme Court to reconsider whether one person really does equal one vote

Yesterday, the Supreme Court announced that it will hear an appeal in Evenwel v. Abbott. The case is being brought by two Texas citizens — represented by Ed Blum, the conservative lawyer who successfully argued against the Voting Rights Act and affirmative action before the Court in recent years — who feel that it is unconstitutional for the state to use total population to draw lines for legislative districts, as the method produces districts with differing numbers of actual voters.

As urban districts have a higher percentage of children and non-citizens than rural districts, the plaintiffs are arguing that rural votes are diluted due to there being more total votes cast in their districts. While a district in North Texas may have the same number of people as a district in Houston, a vote in Houston goes a longer way.

Nearly all states have used total population to set district boundaries since the “one person, one vote” standard was established in Reynolds v. Sims back in 1964. Texas includes non-citizens in its process. The case was recently rejected by a federal appeals court, which held that, based on Reynolds v. Sims, states are free to choose whether to determine district size by total population or eligible voters.

In other words, the same kind of federalism that applies to allocating electoral votes applies to drawing district lines. For better or worse, states get to pick how they do it. You can argue that the total population standard is bad policy if you want, but to call it illegal is a big stretch. As Texas wrote in its motion to dismiss or affirm the case:

Plaintiffs cite no case in which a court has accepted their claim that the Constitution compels States to apportion their legislative districts based on voter population, as opposed to or in addition to total population. And multiple precedents from this Court confirm that total population is a permissible apportionment base under the Equal Protection Clause.

Setting aside the legal gymnastics one has to perform in order to redefine “one person, one vote” on a legal basis, the total population standard is good policy as it intersects with the state interest in protecting voting rights that were established shortly after Reynolds v. Sims was decided.

If the Court were to invalidate the current standard, the voting power of Texas’ growing Hispanic population would take a serious hit. Urban areas like Dallas and Houston would see their “populations” officially cut in half, forcing a redrawing of district lines. As Michael Li, counsel at the Brennan Center for Justice told MSNBC, the new standard would make it far more difficult to draw Hispanic-majority districts under the Voting Rights Act, producing more oddly-shaped districts that would in turn be easier to challenge in court as illegal.

A rhetorical question, via Wikimedia Commons

A rhetorical question, via Wikimedia Commons

Li also pointed out that, given Texas’s history of actively working to undermine the voting power of its minority populations, there is reason to doubt that the state will defend the total population standard as vigorously as is warranted and possible.

The eligible voter standard, if adopted, would also raise thorny questions concerning taxation without representation. While non-citizens aren’t, well, citizens, they still pay various forms of taxes, and are often the parents of citizens. Even if they aren’t voting, they and their children deserve to be represented as voters.

What’s more, if the Court accepts the plaintiffs argument, it will leave a large number of actual citizens with diminished representation. The standard the plaintiffs cite in the case, quoting from the 1970 case, Hadley v. Junior Coll. Dist. of Metro. Kansas City, Mo:

…when 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.

That “as far as is practicable” gets sticky as soon as you argue for a standard other than total population, as changing the standard to eligible or registered voters implies that non-voting citizens — most notably children, felons and the mentally incapacitated –are effectively lesser citizens than those who are eligible to vote. The current standard suggests that the laws passed in Texas affect everyone in Texas equally, and that elected officials are charged with representing everyone within their district’s borders — not just those who voted in their election. By arguing that districts should only take eligible voters into account, the plaintiffs in Evenwel are effectively arguing that representatives are only responsible for representing the will of the electorate, not the people.

Of course, the practical way to get around the issue would be to provide a pathway by which all of the non-citizens the plaintiffs are so worried about could become citizens. But I doubt they’d go for that idea.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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3 Responses to “Supreme Court to reconsider whether one person really does equal one vote”

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  2. Knottwhole says:

    Long, convoluted, great post!
    Sorry you in Floriduh.

  3. FLL says:

    Think of any governmental policy or decision: roads and highways, environmental protection, consumer protection… anything at all. Do these policies affect only the electorate or the entire population? The answer, for the Supreme Court, should be clear. But why is this case from Texas? Coincidence? I think not. Conservative Republicans are pushing this in Texas, rather than some other state, because Texas is in danger of changing from a red state to a purple state. Florida has already changed from a purple state to a blue state during presidential elections. If Texas turns purple, the presidency would be consistently out of reach for Republicans… that is, until they “rebrand” themselves as something other than the party of guns, God and climate change denial. And the Republicans would have us believe that it’s just a coincidence that this lawsuit is coming from Texas? Hypocrites, again and again.

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