The Framers of the Constitution were very explicit about the rules for population counts to be used in determining the number of members each state was to have in the new Congress. Seats in the House of Representatives were to be “apportioned among the several states . . . according to the whole numbers of free persons,” the Framers wrote in Article I (emphasis added).
The Framers crafted two exceptions to that general rule. They excluded Indians who were not taxed and counted only three-fifths of “all other persons” that is to say, slaves. That tainted provision was the key to the South’s secure domination of Congress and the presidency until the Civil War.
With the Union’s victory in the Civil War, slavery was abolished and the three-fifths clause eliminated. The new apportionment provision in the Fourteenth Amendment was written instead to refer simply to “the whole number of persons,” with nontaxed Indians again excluded.
Given that language, the case that the Supreme Court agreed to hear late last month [May 26] seeking to base legislative apportionment on voters instead of overall population should be as simple as ABC for a true originalist. The Framers explicitly counted nonvoting slaves, even if fractionally. Nothing in the phrase “whole number of persons” suggests they meant to exclude non-property owners, nonvoting women, disenfranchised felons, or minors.
In place of the simple rule, two Texans one of them a Republican county chairwoman want to count not people, but eligible voters, in apportioning seats in the state’s legislature. The plaintiffs in Evenwel v. Abbott say that the Supreme Court’s “one-person, one-vote” series of decisions suggest that legislative districts should be equal in the number of voters, not total population.
Sue Evenwel, Republican chairwoman in mostly rural Titus County, says she lives in a senatorial district with about 584,000 voters, while an adjacent Houston area district has only 372,000 voters. She says her vote is undervalued compared to those of voters in urban districts whose numbers are swollen by non-voting eligible populations, including undocumented aliens. Co-plaintiff Edward Pfenninger lives in mostly rural Montgomery County north of Houston.
Just as with other voting-related litigation, this new case must be viewed through a political lens. The case amounts to a hardly-at-all veiled effort to give political advantage to Republicans and to disadvantage areas with Democratic-leaning constituencies.
The three-judge district court that heard Evenwel’s suit all of them appointed by President George W. Bush needed only 10 pages to dismiss it. The Supreme Court “has generally used total population as the metric of comparison” in redistricting cases, the court stated. The plaintiffs’ theory of using voter population has “never before been accepted by the Supreme Court or any circuit court.”
Evenwel’s suit was birthed by Edwin Blum, head of the self-styled Project on Fair Representation. Blum’s most important legal accomplishment was to mastermind the case, Shelby County v. Holder, that led the Supreme Court to gut the federal Voting Rights Act’s all-important preclearance provision for jurisdictions with a history of voting discrimination.
The Supreme Court laid down the “one-person, one-vote” principle in its 1964 decision, Reynolds v. Sims, which requires both chambers of bicameral legislatures to be apportioned “on a population basis.” Ruling in a Hawaii case two years later, Burns v. Richardson (1966), the court upheld a legislative apportionment plan that used voter instead of total population. The court said that its earlier decision “carefully left open the question of what population was being referred to.”
Thirty-five years later, Justice Clarence Thomas contended it was time to settle the question when he dissented from the court’s decision to deny certiorari in a Texas districting case. “As long as we sustain the one-person, one-vote principle, we have an obligation to explain to States and localities what it actually means,” Thomas wrote in Chen v. City of Houston (2001).
No other justice joined Thomas’s call. Evenwel’s new case reached the court on a direct appeal from a three-judge court. The justices could have summarily affirmed the ruling with five votes; instead, there were apparently at least five votes in favor of addressing the issue with full briefing and argument. In urging a summary affirmance, Texas’s lawyers the Republican governor, Greg Abbott, is the first named defendant pointed to rulings from three federal circuits rejecting the voter-population theory. The Supreme Court denied certiorari in all three.
A leading expert on redistricting issues notes that apart from the legal arguments the voter-population theory has a major practical problem. The once-a-decade census used in congressional and legislative apportionment counts only total population, according to Stanford law professor Nathaniel Persily, not eligible voters. The data cited in Evenwel’s suit comes from a Census Bureau survey of 2 percent of households, he says.
“The data necessary to draw districts with equal numbers of eligible voters does not exist,” Persily wrote in an op-ed in Politico. “We have no national citizen database that tells us how many citizens live in each district around the country.”
Texas argues in the case that states have discretion to use either total or voter population. To be true to the Framers, however, the court perhaps should settle the issue by insisting that states must count all people, not just those eligible to vote under rules subject to political manipulation. “One person, one vote” means just that.