December 3, 2015

Evenwel and the Next Case

Dan Tokaji, Daniel Tokaji

by Daniel Tokaji, Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law and Senior Fellow at Election Law @Moritz, The Ohio State University, Moritz College of Law

On Tuesday, the Supreme Court will hear argument in Evenwel v. Abbott. The subject of the case is the meaning of the “one person, one vote” rule. The appellants argue that the Constitution requires equality of eligible voters among legislative districts. This argument is unlikely to carry the day – in fact, the appellants may well lose unanimously. Evenwel is still an important case, however, because what the Court says will affect how states draw state legislative districts after the next census and possibly even sooner. The hard question isn’t the disposition of Evenwel but rather its implications for the next case.

The “one person, one vote” rule requires that legislative districts be drawn on the basis of population. Where single-member districts are used, each district must be of approximately equal population. In Reynolds v. Sims, the Supreme Court held that the “one person, one vote” rules applies to state legislative districting. This ended the states’ practice of using districts with very different populations – some with disparities over 40:1 – which generally advantaged rural areas at the expense of urban and suburban areas.

Reynolds left open the population metric that states can or should use when drawing districts. There are several possible choices. The broadest measure is total population. That’s what Texas uses in drawing its 31 state senate districts, giving each one approximately the same number of people. Total population is also the metric used in the other 49 states, according to the United States’ amicus brief. A narrower basis for drawing districts is the U.S. citizen population (excluding non-citizens). An even narrower metric is the citizen voting age population (excluding those under 18) or, narrower still, the citizen voting eligible population (excluding people ineligible to vote due to felonies or mental incapacity). Counting only eligible voters would have a negative impact on the representation of racial minorities and other communities with large numbers of children, non-citizens, and other non-voters.

The Evenwel appellants argue that the states are prohibited from doing what all of them now do: using total population as the basis for drawing districts. The Court isn’t likely to agree. There are good reasons for using total population as the basis for redistricting, as Rick Pildes has explained. In addition to the fact that it’s the norm among states, using total population ensures that everyone – including children, non-citizens, and others who can’t vote – are equally represented. Furthermore, Article I, Section 2 of the Constitution requires that all “persons” (including those ineligible to vote) be counted in apportioning U.S. House representatives among the states. It would be anomalous at once to require that non-voters be counted for congressional apportionment and to forbid non-voters from being counted for state legislative districting.

Perhaps most important are the practical reasons for rejecting the Evenwel appellants’ argument. Total population statistics are readily available from the U.S. Census. It is more difficult to arrive at a reliable estimate of the citizen population – much less the population of eligible voters – for reasons described in this amicus brief from five highly regarded political scientists. Using voter registration to draw districts is undesirable, as the rolls tend to include lots of “deadwood” (e.g., people who have moved or died). It would also open the door to partisan manipulation, incentivizing localities to increase their representation by inflating their registration rolls.

Nor is there any viable precedent for appellants’ argument that states must equalize the number of eligible voters among districts. The most relevant Supreme Court decision is Burns v. Richardson, which upheld Hawaii’s use of registered voters as the basis for drawing state legislative districts. Burns emphasized the particular circumstances of Hawaii that justified its decision to depart from total population – in particular, the large number of non-resident military personnel and tourists included in the U.S. Census. There is language in Burns suggesting that states should have some latitude to choose the population denominator. But Burns did not remotely suggest that states must equalize eligible voters among districts, as the Evenwel appellants now argue.

It would therefore be shocking for the Court to hold that the Constitution requires states to use eligible voters as the basis for drawing districts. Assuming that’s right, there are two distinct paths the Court could take. The first is to say that “one person, one vote” is a rule of representational equality, meaning states are generally required to use total population when drawing districts. The other is to rely on federalism, meaning that states have discretion to choose whether to pursue representational equality (equal numbers of people) or electoral equality (equal numbers of voters) in drawing districts.

Whether the Court should choose a path in Evenwel is a point of fervent disagreement between Texas and the United States – despite their agreement that the Court should reject the challenge to Texas’s current districts. Texas argues that states should have discretion to choose the measure of population for drawing its districts. In other words, states are free to equalize total population, eligible voters, or some other population metric (see this brief at pp. 43-49). The United States, by contrast, argues that there’s no need for the Court to decide whether the Constitution requires equalization of total population (see this brief at pp. 26-32). Instead, the United States argues, the Court should wait until a state actually draws districts on a basis other than total population.

While this might seem like a sidebar debate, it’s actually the most difficult and important aspect of the Evenwel case. The United States is surely right that the Court needn’t decide whether the Constitution requires equalization of total population among districts in this case. In fact, the Court really can’t decide that issue yet. It isn’t before the Court, given that Texas did equalize total population when drawing its state senate districts. Anything the Court says on whether states must equalize total population would technically be dictum.

Still, the decision in Evenwel is bound to affect the question whether states must equalize total population when drawing state legislative districts. On this point, a comparison might be drawn to the Court’s decision in Northwest Austin Municipal Utility District No. 1 v. Holder. In that case, eight justices announced a constitutional principle of “equal sovereignty,” while avoiding a decision on the constitutionality of Voting Rights Act preclearance. Four years later, in Shelby County v. Holder, a 5-4 majority applied the equal sovereignty principle to strike down the Voting Rights Act’s coverage formula. Just as Northwest Austin’s reasoning paved the way for Shelby County, the Court’s reasoning in Evenwel may pave the way for a subsequent decision that weakens – or strengthens – the “one person one vote” rule.

Although I’m generally loath to predict outcomes, I expect the Court to reject the appellants’ argument that the Constitution requires equalization of eligible voters among districts. But how it rejects this argument is very much up in the air. If Evenwel relies mainly on the principle of representational equality, it will tend to preserve the status quo in which state legislative districts are drawn based on total population. On the other hand, if the Court relies primarily on federalism, it will invite states to stop counting children, non-citizens, and other non-voters when drawing districts. Blue states will surely continue to draw districts based on total population, but we can expect red states to choose a narrower metric, one that diminishes the voting strength of minority communities and others with large non-voting populations. Those states might not even wait until the next census, given that the Court opened the door to mid-decade redistricting in another case from Texas, LULAC v. Perry

In sum, the issue before the Court in Evenwel is less difficult than the question whether states must equalize total population in drawing legislative districts. But Evenwel is still very important, because what the Court says in this case will affect, if not determine, the result of the next case. The decision will also affect how states – especially those controlled by Republicans – will draw districts after the 2020 census, and possibly whether they’ll redraw their current districts before then.