Oral argument in Evenwel v. Abbott

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The U.S. Supreme Court heard oral argument in Evenwel v. Abbott on Tuesday, the Texas “one person, one vote” case. The transcript of the oral argument is here (.pdf).

There has been some very good analysis of the oral argument, which I have collected at length below.

Let’s begin with Lyle Denniston at SCOTUSblog, Argument analysis: The choice — be bold or practical:

The argument in Evenwel v. Abbott involves as fundamental an issue for a democracy as can be imagined:  is everyone represented in elected governments, or are those eligible to vote entitled to special influence and the political power making that possible?  The reason that such a choice is just now arising is that it is controlled by the half-century-old constitutional principle of “one person, one vote,” but the Supreme Court has never specified how to measure that equality.

For decades, the states have opted to divide up legislative seats, at the state and local level, by starting with total population, dividing that by the number of seats at stake, and then (with some modifications) coming up with roughly equal district populations.  With modern census data and advanced computers, it is possible to come very close to mathematical parity — although the Court has allowed legislatures to come within ten percent of that, if they are making allowances for such permissible things as respecting county and city boundaries and even, to a degree, protecting incumbent lawmakers.

In fact, the principle of “one person, one vote” has been understood as equality of districts, rather than voters, on the theory that everyone placed in each district — whether eligible to vote or not — is entitled to be represented by the winner.  But there is a [far-right] political movement now, increasingly active, that is pushing for the famous phrase to mean voter equality, so the process would start with making sure that those who are qualified to vote should wind up with roughly equal numbers in each district.

If there is great disparity between the numbers of eligible voters between districts, the theory goes, there is no voter equality:  those in districts with fewer voters have considerably more clout, at election time, than those with many voters — even if the districts’ total populations are equal.  A district over-populated with voters is said to dilute the ballot strength of each, compared to some other districts’ residents.

This equality theory was neatly captured by Justice Samuel A. Alito, Jr. — although it was not clear whether he was really tempted to embrace it, or was just exploring its meaning.  Suppose, he said, there was a rural district in which only nine percent of the population could vote, because its overall population is swelled by a large prison and none of the inmates can vote, but there is another district with about the same total population, but ninety percent of its residents can vote.  “Is that okay?” he asked a federal government lawyer, Deputy Solicitor General Ian H. Gershengorn.

[Note: This is precisely the situation presented with legislative district 8 in Arizona, for example, which takes in the state prison facility at Florence. Oddly enough, the Court’s discussion of legislative district 8 during the earlier oral argument in Harris v. Arizona Independent Redistricting Commission did not raise this prison issue.]

Gershengorn responded that the courts have recognized that legislatures, in drawing new districts, are entitled to rely on census data — that is, total population figures.  There is no existing way, Gershengorn would go on to say, for the census to provide data that would aid legislatures in dividing up seats according to voter figures without simultaneously winding up with major differences in total populations.  That, he indicated, would skew district population differences.

The theory was regularly disparaged by the more liberal Justices on the Court, who made clear they were not about to let the concept of representation be changed so that only voters were the constituents who counted in the writing of the laws.  At least, they were not willing to make it unconstitutional to use total population as the starting point in redistricting, and mandating as the only constitutional norm the near-equality of voter populations among districts.

But the closest that any member of the Court came to suggesting serious consideration of the theory was Justice Anthony M. Kennedy, in a couple of remarks that were potentially telling.  Most significantly, he asked Texas Solicitor General Scott A. Keller, who defended Texas’s use of total population: “Why does it have to be one or the other?”  Both concepts, he said, may be worthy.

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Kennedy . . . wanted to know why legislatures could not strive for equal districts and equal distributions of eligible voters.  Why, he asked Keller, is Texas not required to accommodate both interests?  Keller’s response was the same as Gershengorn’s: district map-makers, he said, have to rely on census data, “and all we have is total population.”

Kennedy next wondered if there were any studies about trying to achieve both.  Keller said he knew of none, and Kennedy dropped this line of inquiry.  A bit later, Keller added that, if the Court were to require a voter-based standard, that would wreak havoc with traditional districting principles, such as showing respect for local government boundaries.

Joel Fishkin at Balkinization blog has a response to Justice Kennedy’s question that Keller did not. :

The issue in Evenwel is this.  What should be equalized under one-person-one-vote?   Should every district have the same number of people?  Or should they have the same number of eligible voters?

The United States basically says, people.  The plaintiffs say, eligible voters.  The State of Texas says, whichever we want—federalism leaves it up to us.  Justice Kennedy, at oral argument, seemed to be considering yet a fourth answer: “But why is one option exclusive of the other? Why can’t you have both? . . . . Why can’t you use both?” (p.34)

Mathematically, this is possible.  (Justice Kennedy asked if there were “any studies on this” and indeed there is one, although nobody at oral argument seemed aware of it.)  But here’s what you have to do to make it happen.  If each district is going to have the same total population and the same eligible voter population, then you’re necessarily going to need to pair every area that has a relatively high proportion of eligible voters with another area that has a relatively low proportion of eligible voters.  That’s where you run into trouble.

As the Justices heard at oral argument, in some areas of Texas, children are 35 percent of the population.  In others, 9 percent.  The number of immigrants varies wildly as well (although it’s actually the number of children that does the most work).  Both of these variables are highly correlated with race—Latino Texans have more children per capita than whites.  So, suppose you have an area with a low percentage of eligible voters—one with lots of children and immigrants, perhaps a heavily Latino area.  Under the both-and approach Justice Kennedy seemed at oral argument to be considering, you must pair them with an area with a high percentage of eligible voters—probably a place with few children and few immigrants.  Someplace older, whiter, and in most cases more Republican.

Next question.  In that combined district—which you must combine, regardless of traditional districting criteria such as geography and communities of interest—who’s actually going to elect their candidate of choice?  I’ll give you a hint.  It’s not the low-eligible-voter side of the district.  In elections, by definition, the side with more votes wins.  When you have more eligible voters, you almost always have more actual voters.  In a lopsided district like the one I’m describing, where the areas with high and low numbers of eligible voters also have different political preferences, the areas with low numbers of eligible voters therefore generally end up as “filler people.”  In a low-turnout district they might have some say in who represents them.  But when paired with a higher-turnout area, they’re swamped.  Just like the Latinos of District 23 in LULAC v. Perry, before Justice Kennedy intervened.

Now that last point raises an interesting problem.  If these pairings of high-eligible-voter areas and low-eligible-voter areas would be as potentially devastating to minority voting strength as I am suggesting, then wouldn’t they violate Section 2 of the Voting Rights Act, just like in LULAC?  The short answer is: yes.  They would.  If Justice Kennedy’s musings at oral argument today in Evenwel were to turn into an opinion for the Court holding that Texas must equalize both total population and eligible voter population, then Section 2 of the VRA would still protect minority voters’ opportunity to elect their candidates of choice.  But it would be much more of an uphill battle, and there is no way to know exactly how far it would get.  Such a “both-and” ruling seems almost perfectly calibrated to lead to lopsided pairings like the one in pre-LULAC District 23, where minority voters are present, but not voting enough to matter.

This is precisely the result that the Plaintiffs in Evenwel intend. Comments from the five conservative justices at oral argument in Harris and Evenwel suggest that they remain hostile to the Voting Rights Act, which they gutted in Shelby County v. Holder.

Nate Persily, who filed an amicus brief in Evenwel based on his experience as a Special Master and court-appointed redistricting expert, also has an analysis at Balkinization blog discussing the available data for redistricting. :

To be clear, the issue is not whether one is physically able to draw districts on the basis on some data source other than the census population numbers.  Of course, one could.  The question is whether the available data are consistent with the theory of one person, one vote – even according to the Appellants’ novel interpretation of that rule.   There is a fundamental incongruity between the interpretation of the Equal Protection Clause proposed by the Appellants and the data they use to demonstrate a constitutional violation and suggest as a remedy.

First, no dataset of eligible voters exists.  All of the debate about the American Community Survey’s (ACS) citizen voting age population (CVAP) data is somewhat beside the point.  Even that dataset does not pretend to capture the relevant statistic — eligible voters —  that the Appellants contend is necessary for compliance with one person, one vote.  The ACS data do not account for 168,000 people in Texas prisons or the roughly 350,000 others who are disfranchised because of a felony conviction.  Nor do they account for the roughly half million eligible voters who live abroad but can vote in Texas elections.

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Second, the problem with the ACS CVAP data is not that you are unable to put it into a computer and use it for redistricting.  You could do that with any dataset.  Rather, what you would be putting into the computer at the time of redistricting are old estimates of what the population was, not what it is.  Everyone, including Appellants, agrees that the yearly ACS surveys are not usable for redistricting because they only sample 2.5% of households and are released only for communities in excess of 65,000 people.

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Third, the granularity of the data and the presence of error margins introduce novel questions regarding one person, one vote . . .As explained in my amicus brief, these error margins are sometimes quite large, especially at the local level.  Such errors will increase further in size, if one needs to break up the block groups into blocks, as one often would do, in order to accommodate any number of other redistricting considerations. (Even the five-year averages of ACS data are not released below the block group level.)  When it comes to ACS citizenship data, moreover, some of the data are imputed by the Census Bureau, itself:  For five percent of respondents in the 2013 ACS, the Bureau “allocated” (i.e., filled in) the answer to the citizenship question.

Finally, and perhaps most obviously, the ACS can be eliminated at any time.  This is not a theoretical possibility:  the House of Representatives voted to eliminate it in 2012.  Further, because of the government shutdown in 2013 and a reduction in funding in 2004, ACS surveys in those years suffered from a high margin of error.

Richard Pildes, who attended the oral argument in Harris and Evenwel, has his take at Election Law Blog. Six Takeaways from the Evenwel Argument (reduced to his bullet points):

1. The Court is not going to hold that voter equality (equal numbers of eligible voters per district) is constitutionally required.
2. The Court is not going to embrace the other clean, polar position either, which is that the Constitution requires that total population be the measure.
3. So the Court will either affirm the status quo or adopt an intermediate position to which Justice Kennedy appears drawn.  That is the view that states have to at least consider voter equality as one factor to take into account.
4. This would look like a victory for the appellants, but it would be a win on the most minimal grounds.   Moreover, even that holding might be accompanied by qualifications concerning the reliability of the ACS data that counts citizens and non-citizens.
5. If the Court holds that states have to take voter equality “into account” as “a factor,” what would that mean on the ground?  The key question would then become:  how much weight do states have to give this factor, compared to total population, once they start “taking it into account?”  The Court is not likely to answer that question and it will likely take years of litigation to sort it out.
6. The most important effect of Evenwel is not, therefore, likely to be doctrinal . . . Will the litigation itself become a catalyst for some states to choose of their own accord to start districting based on voter equality, rather than total population — even if the Court’s decision does nothing more than affirm the status quo, in which this option has always been possible. That is the most politically consequential question surrounding this case, given that the Court is not going to hold that districting based on voter equality is constitutionally required.

Rick Hasen of Election Law Blog, who did not believe that the Court was going to depart from total population in Evenwel, has an op-ed at the Los Angeles Times. Justices will get no satisfaction with a new ‘one person, one vote’ rule:

And this is where the Rolling Stones principle comes in: A total population standard isn’t what everyone wants, but it’s what we need to avoid chaos.

A legislative map equalizing both total voters and total population would violate all sound redistricting principles, breaking up cities, separating communities of interests and producing grotesque shapes. Indeed, after Keller made these points, Kennedy seemed to concede the point: “That sounds highly probable to me.”

An attempt to equalize both population and voters would have especially bad consequences for minority representation. In a forthcoming paper Vanderbilt law and mathematics professor Paul Edelman shows that it is mathematically possible to draw districts that equalize both voters and population — but only at a big cost. He concludes that “dual districting may well be antithetical to achieving majority-minority districts,” a cornerstone of the Voting Rights Act.

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At Tuesday’s oral argument, some of the conservative justices seemed attracted to plaintiffs’ argument. As Chief Justice John Roberts remarked, “It is called the one person, one vote [rule.] That seems designed to protect voters.” But as compelling as that argument may sound in the abstract, it’s not practicable. And it seems doubtful these justices would be willing to mandate a standard that would cause so much upheaval, not only in the states, but at the Supreme Court itself, which would see a new flood of cases clarifying the standard.

David Gans writes at The New Republic, At the Supreme Court, Equal Representation Is in Danger.

John Sides writes at The Washington Post, The Supreme Court may change ‘one person, one vote.’ This would hurt Latinos and Democrats.

Dahlia Lithwick writes at Slate, What Exactly Does “One Person, One Vote” Mean, Anyway?

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