Preview of Evenwel v. Abbott

The issue presented in Evenwel v. Abbott is:

SupremeCourtIssue: Whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population, when apportioning state legislative districts.”

The case will be argued before the U.S. Supreme Court on Tuesday, the same day that the Court hears oral argument in the redistricting case from Arizona, Harris v. Arizona Independent Redistricting Commission (see previous post).

Garrett Epps at The Atlantic has a preview. Who Gets to Be Represented in Congress?

Ideally, litigants come to appellate courts with a problem the courts can solve.  Sometimes, though, they bring solutions in search of a problem the courts can create. The plaintiffs in Evenwel v. Abbott have gone even further: Their case brings the U.S. Supreme Court a problem and asks the Court to create more problems, with no solution in sight. They want the Court to completely upend the current system of drawing legislative districts—in a way that would give more power to conservative voters and candidates. Beyond that, they are asking the Court to adopt a new constitutional rule with no constitutional provision attached.

Evenwel, which the Court will hear Tuesday, is a challenge by a group of registered Texas voters to the state’s plan of districts for the state senate. The Texas legislature drew its new districting plan on the assumption that it should try to make each district roughly equal in population to every other. The plaintiffs in Evenwel challenged that plan, however, on the grounds that the legislature should use eligible voters, rather than total population, as the relevant measure. Each district, in other words, should have roughly the same number of eligible voters, not the same number of people.

The change would produce a political earthquake. Eligible voters as a group are older (no children under 18, to begin with), wealthier, and more Republican—and, even more important in Texas, whiter and more Anglo—than the population at large. Many people in the Southwest—both legal residents and undocumented immigrants—are not citizens. Under the proposed Evenwel rule, only those eligible to vote count.

The plaintiffs cite two seminal cases, Baker v. Carr and Reynolds v. Sims, which together are considered (in shorthand) to have established a rule that districting must be done on a “one person one vote” rule. “The Court,” the plaintiffs argue, “need not look beyond these seminal decisions to resolve the question presented in Appellants’ favor.”

Indeed, the appellants hope the Court won’t look beyond them—because the proposed rule is anchored in scattered language from those opinions, not in the constitutional principle they drew from. In Baker, the Court held for the first time that a state’s legislative districts, if drawn unequally, could be challenged under the Equal Protection Clause. In Reynolds, the Court for the first time struck down a state legislative-districting plan because it drew districts unequal in population. Chief Justice Earl Warren wrote for the six justices that “the weight of a citizen’s vote cannot be made to depend on where he lives.” For this reason, he continued, “Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies … We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”

In a later case, the Court held that Hawaii could use registered voters rather than raw population as the basis for its districts. The majority reached that conclusion because the state had an unusually high number of transient military personnel and tourists—and “only because on this record it was found to have produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis.” The Hawaii case, Burns v. Richardson, has been read to mean that states have a choice of basis, as long as its plan remains close to overall population numbers. The plaintiffs want to replace that loose rule with a no-choice “eligible voter” requirement. They want the Court to read some of its previous language aggressively (“the weight of a citizen’s vote”) and to ignore other language (”Population is … the starting point … and the controlling criterion”).

One would hardly know it from the appellants’ brief, but the basis of all the Court’s districting cases is the Equal Protection Clause of the Fourteenth Amendment. That provision protects the rights of “persons” within a state’s jurisdiction. The framers of the clause knew the difference between “persons,” “citizens,” and voters: Elsewhere in Section One they guarantee the “privileges or immunities” of “citizens of the United States,” rather than of “persons”; in Section Two they discuss the right to vote of some, but not all, “citizens of the United States.”As for representation, Article I requires representatives to be divided among the states “according to their respective numbers,” meaning population. There was no exception for non-citizens, or for children; slaves were also counted, though only as three-fifths of “free persons.”

The Fourteenth Amendment did away with the three-fifths rule, basing House seats on “the whole number of persons in each State”—population again. The amendment makes an exception—when eligible male citizens (women were not guaranteed the right to vote until 1919) are denied the vote on any basis, states were to lose House seats for all members of the denied group. This provision was never applied, but I read it to mean that if, say, adult male voters were denied the ballot because they were African American, the state would lose representation for its entire African American population—men, women, and children.

I find no hint anywhere in the text that the boundaries of political power could or should ignore children, or women (who were then ineligible to vote), or non-citizens. And the debate over the amendment shows a good deal of awareness of the needs of immigrants, as well as citizens, for “the equal protection of the laws.”The Evenwel “rule,” in other words, has been patched together more or less out of thin air, supplemented by a highly partial reading of a few Warren Court cases. Its result would be a political system even less tethered to the concerns of ordinary people than the present one. That prospect undoubtedly appeals to some Americans at this moment of demographic panic—of a nostalgia for an alternate universe past when America was “greater,” whatever that means. But it makes little sense within the genuine political universe created by the Constitution we actually have. It makes no sense as law.Victory for the plaintiffs seems unlikely, however. The Court is hearing this case not so much out of choice but because, as a direct appeal from a three-judge court, it can’t just refuse. Whether it heard arguments or not, its decision would set a precedent. And the plaintiffs are on shaky ground. They are in essence asking the Court to open itself up to a decade or more of hell adjudicating its new rule. Consider this soothing phrase from their brief: “This appeal need not resolve every implementation issue.” Indeed. A rule basing districts on “eligible voters” would be a nightmare to administer, with district courts around the country required to find information about eligible voters—information that’s not available anywhere.

As an amicus brief for a group of former directors of the Census explains, “there is no actual count of the number of voting age citizens.” The Census counts the number of people in the country. The only systematic information about citizen population is a sample, like a voter poll in other words, taken by the Census. And that sample is too small to produce a reliable estimate of citizens in a given district, the former officials warn: “Adequate data to support Appellants’ positions simply do not exist.”

Rick Hasen of Election Law Blog contributed this analysis to the SCOTUSblog Symposium: Ideology, partisanship, and the new “one person, one vote” case:

It is tempting to think of the plaintiffs in Evenwel v. Abbott as conservatives. After all, the brainchild behind this new “one person, one vote” lawsuit, Ed Blum and his Project on Fair Representation, brought us the demise of a key provision of the Voting Rights Act in the Supreme Court’s Shelby County v. Holder case and continued attacks on affirmative action in the second coming of the Fisher case. But the theory the Evenwel plaintiffs pursue is anything but conservative: it is about taking power away from the states and having the Supreme Court overturn precedent by imposing through judicial fiat a one-size-fits-all version of democratic theory unsupported by the text of the Constitution or historical practice. Evenwel should be seen for what it is: not a conservative case but an attempted Republican power grab in Texas and other jurisdictions with large Latino populations.

The plaintiffs in Evenwel are asking the Court to require states to draw their legislative district lines by dividing up only voters, rather than considering the total population in each district. Lyle Denniston has thoroughly explained the background of this case: the Supreme Court first imposed the “one person, one vote” rule in cases in the 1960s, basing the requirement for states on the Constitution’s Equal Protection Clause; the Court did not specify in those early cases whether states must use total population, total number of voters, or some other measure in drawing roughly equal districts; and the Court in the 1966 case Burns v. Richardson approved Hawaii’s use of total registered voters rather than total population, saying that the issue of what to use as the denominator in drawing equal districts resided in the states.

As the Court wrote in Burns, “The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” Since Burns, lower courts have consistently refused to require states to choose one method of achieving equality over others. The question of the proper denominator is a fascinating and controversial one, but it is one that the courts have left for each state to sort out rather than to be imposed by the judiciary.

Blum first tried to get the Supreme Court interested in this issue in the 2001 case of Chen v. City of Houston. The Court declined to hear the case, with Justice Clarence Thomas writing a dissent from the denial of a writ of certiorari saying the issue deserved a fuller airing. Blum succeeded this time in the Evenwel case, probably because he got the case to come up on the Court’s rare mandatory appellate jurisdiction. (When a case comes up this way, as opposed to through a cert. petition, a decision for the Court not to hear the case is generally treated as a binding precedent.)

The case to judicially require a “total voter” standard is not a conservative one. To begin with, the issue appears to have been settled since the 1960s in the Burns case, and the Evenwel plaintiffs offer no reason for the precedent to be overturned. In Burns, the Court specifically considered whether the judiciary was the body to adopt a single standard for putting “one person, one vote” into practice and it declined to do so.

Even more importantly, as Derek Muller points out, the Evenwel plaintiffs are mounting a direct attack on federalism: “The Court has, for once, largely left this matter to the political process to decide. But the plaintiffs have lost this political battle in Texas, so they now seek to read a newer, narrow theory of political representation into the Constitution, a stage beyond what even the Warren Court felt comfortable doing—creating an ever-more uniform political theory derived under a construction of the words ‘the equal protection of the laws.’”

And that brings us to the most fundamental way in which the Evenwel plaintiffs are not making a conservative case: they are seeking to impose a standard which is not supported by the text of the Constitution. Putting aside respect for precedent, I could see a principled conservative argument to abandon the “one person, one vote” rule entirely, on the theory that the Equal Protection Clause as it was understood at the time of the Fourteenth Amendment’s adoption does not require the drawing of equal districts at all. But Evenwel not only sees in the Constitution an equal district requirement: it sees one that is so strict as to give states no flexibility in implementing it.

Looking at the constitutional text as a whole, the Evenwel standard would be anomalous. For purposes of congressional apportionment (that is, the calculation of how many members of Congress each state receives based upon each state’s population), Section 2 of the Fourteenth Amendment requires the use of total number of persons, not voters. It seems quite odd to require counting all people for purposes of dividing up representation among the states but not for drawing districts within each state.

The conservative case for a single standard also would take the Court far from its constitutional comfort zone. As Lyle Denniston notes, to adopt the Evenwel theory would require the Court to embrace a particular democratic theory. That theory would appear to be one completely unmoored from constitutional precedent, text, or practice. Further, we do not have reliable data to put the Evenwel total voter standard into practice, meaning the Supreme Court likely would have to require the federal government to change the questions asked during the Census to get the right data for Court-mandated calculations.

If I am correct that Evenwel is not motivated by conservative principles, what’s behind it? It is hard to see it as anything but a Republican power grab. As I explained at Slate, a ruling that states may not draw legislative district lines taking total population into account will benefit rural voters over urban voters, and that by extension will benefit Republicans over Democrats. Urban areas are much more likely to be filled with people who cannot vote: non-citizens (especially Latinos), released felons whose voting rights have not been restored, and children. With districts redrawn using only voters as the denominator, there will be more Republican districts. And although Evenwel involves state legislative districts, the next claim will likely be for the same principle to be applied to congressional districts, affecting the balance of power in Congress.

Evenwel is a case which should be equally disturbing for conservatives and liberals. For conservatives, it is a case which challenges existing precedent for no reason, undermines federalism concerns, and goes against constitutional text, history and practice. For liberals, the case looks like little more than a Republican power grab, seeking to have the Court take away discretion for states in an arena in which states should have some leeway in deciding on the appropriate means of equal representation. It forces states to draw districts under a court-mandated theory that those without the vote, including children, felons, and non-citizens, do not deserve representations in state legislatures.

This is the rare case where liberals and conservatives can unite behind the state of Texas. Texas has properly asked the Supreme Court to leave the “one person, one vote” question where it has resided for almost fifty years: with the states.

Rick Hasen explained why he is “not all that worried about what the Court is going to do” in this case at his Election Law Blog last week.

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