The now famous “one person, one vote” rule for reapportionment and redistricting case stems from a Supreme Court decision in 1963 authored by Justice William O. Douglas. With the opinion still in the drafting stage, one of Douglas’s clerks suggested changing the phrase to “one voter, one vote,” according to an account by historian Douglas Smith in his book On Democracy’s Doorstep. Douglas stuck with what he had written..
In the 50-plus years since, state legislatures have all but universally followed that phrasing to redraw district lines on the basis of total population, not voter population. But now the Supreme Court is being asked instead to require that state or municipal governments equalize legislative districts on the basis of the number of eligible voters, not on total population.
The argument by the Texas plaintiffs in Evenwel v. Abbott would result in a political sea change benefiting Republican and rural areas and disadvantaging Democratic and urban areas with larger numbers of children, disenfranchised felons, and non-citizens, whether documented or not. The argument seems likely to fall short, given the evident opposition from liberal justices and the limited interest among conservatives. But even a limited ruling recognizing states’ discretion to use voter instead of total population could create the potential for more mischief in the already seamy political process of legislative redistricting.
The two Texas plaintiffs, Sue Evenwel and Edward Pfenninger, live in East Texas state Senate districts that have significantly larger number of eligible voters than the average Senate district. Their attorneys argue, in a lawsuit engineered by a conservative legal gadfly, that even though the districts are roughly equal in total population, their votes have less weight than those of voters in districts with fewer eligible voters.
The lawyers base their case in part on a Supreme Court decision, Burns v. Richardson (1966), that allowed Hawaii to use the number of registered voters instead of total population to draw state legislative districts. The majority opinion, written by Justice William J. Brennan Jr., treated registered voters as an acceptable alternative to total population because of “the concentration of military personnel and other transients” on Oahu, Hawaii’s most populous island.
Some 35 years later, Justice Clarence Thomas called in a municipal redistricting case from Houston for the Court to clarify the meaning of the “one person, one vote” test. Plaintiffs in Chen v. City of Houston (2001) complained, just as the Evenwel plaintiffs do now, that the equal-population districts were substantially unequal in terms of citizen-voter age populations. Thomas was alone in calling for the Court to hear the case. “[A]s long as we sustain the one-person, one-vote principle, we have an obligation to explain to States and localities what it actually means,” he wrote.
Thomas got his wish when the Court agreed in late May to hear the new Texas case. The suit is being bankrolled by the so-called Project on Fair Representation, an organization that Edward Blum founded and has used to mount previous Supreme Court legal challenges to affirmative action and the federal Voting Rights Act. Conservative legal groups filed amicus briefs supporting the proposed mandate to use voter population, while liberal and traditional civil rights groups argued for total population as the customary standard.
Apart from any partisan considerations, the plaintiffs in the new case are going up against constitutional text, historical tradition, and practical difficulties. The Constitution uses total not voter population to apportion seats in the House of Representatives among the states. In oral arguments, Justice Elena Kagan asked the plaintiffs’ lawyer, William Consovoy, how the Constitution could require total population in one place but prohibit that standard in another.
Justice Ruth Bader Ginsburg pressed Consovoy to similar effect by asking whether states had been violating the Constitution by counting women in apportioning House seats before women gained the right to vote with the 19th Amendment in 1920. To both questions, Consovoy had no better answer than to say, with no logical support, that intrastate legislative districting is different from the apportionment of House seats among states.
The population figures used for drawing district lines come from the U.S. Census Bureau, but the full-scale every-ten-year Census counts people, not eligible voters. The eligible-voter population figures are less reliable because they come from the less rigorous American Community Survey, which is based on sampling rather than a complete count. In its argument, Texas defended the state’s right to use either total population or voter population, but a leading academic expert, Stanford law professor Nathaniel Persily, argued strongly in a friend-of-the-court brief that the voter population figures are not good enough, even for government work.
Chief Justice John G. Roberts Jr. signaled his support for counting voters, not total population. “It is called one person, one vote,” Roberts said at one point. “That seems designed to protect voters.” Justice Samuel A. Alito Jr. also seemed likely to side with the challengers. Thomas asked no questions, as usual, but his view seems indicated from his previous call to consider the issue.
Oddly, Justice Antonin Scalia asked no questions of any of the three lawyers. Smith, who attended the argument, said he was “surprised” that Scalia and the other conservatives were not more engaged in the plaintiffs’ argument. And the effect of their position, he said, would be “staggering” in political terms. “It would ironically return power to the rural areas that had all the power” before the reapportionment revolution, Smith said.