Instead, the Court agreed to hear a controversial appeal from the state of Texas — where else — in its next term. The Court will define the “one-person, one-vote” mandate that originated in the case of Reynolds v. Sims (1964). Does it require equal “total population,” or does it require equal “voter population”?
The “one-person, one-vote” standard has long been understood to mean equal total population for congressional districts. Article I, §2, of the United States Constitution requires that Members of the House of Representatives “be apportioned among the several States . . . according to their respective Numbers” (population) and “chosen every second Year by the People of the several States.” This clause makes no reference to “voter population.” Large numbers of Americans did not vote at the time the Constitution was enacted nor, sadly, even today.
During the slavery period, the three-fifths clause (Article I, Section 2, of the U.S. Constitution) declared that for purposes of representation in Congress, enslaved blacks in a state would be counted as three-fifths of the number of white inhabitants of that state (population). Slaves most definitely were not counted among the “voter population.”
In Tennant v. Jefferson County Commission (2012), the U.S. Supreme Court upheld a West Virginia congressional map that differed in population between districts by as much as 4,871 people. Lyle Denniston wrote at SCOTUSblog.com, Opinion recap: Hedging on “one person, one vote” (emphasis added):
“Zero variance” in population is not the new constitutional norm for redistricting, the Court made clear. Just because computers can produce almost exactly equal-sized districts, the Constitution does not require it, the decision said.
“The equal population standard for congressional districts is notably stricter than for legislative or other types of political districts. In contrast, state and local redistricting followed a “substantially equal” standard, which translated to a rough rule/guideline allowing most maps a 10% deviation. While not a clear cut rule, it has become an operational standard in the redistricting community.” U.S. Supreme Court Elaborates on Equal Population Requirement.
All of this may change with today’s grant of Evenwel v. Abbott to be heard and decided next Term:
Issue: 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.
Lyle Denniston at SCOTUSblog writes, Major test on voter equality set for review:
The Constitution has been understood for the past half-century to require that no individual’s vote count more at election time than anyone else’s. The Supreme Court agreed on Tuesday, for the first time, to clarify how that concept of equality is to be measured, when legislatures are drawing up election districts.
The Court took on a case challenging the 2011 redistricting of the thirty-one seats in the Texas Senate, focusing on what measure of population should be used to judge whether the “one-person, one-vote” mandate has been met. That mandate originated in Reynolds v. Sims in 1964. The new case of Evenwel v. Abbott will be heard and decided next Term[.]
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The Justices’ move into the Texas Senate redistricting case comes fourteen years after Justice Clarence Thomas, in Chen v. City of Houston in May 2001, was the sole member of the Court who went on record in favor of sorting out “what measure of population should be used for determining whether the population is equally distributed among the districts.”
The usual choice considered by legislatures is to make districts more or less equal by dividing up shares of the state’s total population, or, as an alternative, to draw lines based upon some measure of the voting members of the population — such as the numbers actually registered to vote.
Two Texas voters, who wound up in state senate districts where they say their votes will count less than the votes in another district even though each of those districts has about the same total number of people, argued that this contradicts the “one-person, one-vote” guarantee of voter equality. Their votes would have counted equally, they contended, if the legislature instead had used voting-age population as the measure.
The voters, Sue Evenwel, who lives in Titus County in Senate District 1, and Edward Pfenninger, who lives in Montgomery County in District 4, said their votes were diluted because of the disparity between the two measures as applied to those districts, where more of the people vote proportionally. Both districts are rural. Other, more urban districts have proportionally fewer registered voters, so the redistricting plan based on actual population is said to give those who do vote more weight — that is, fewer of them can control the outcome.
“A statewide districting plan that distributes voters or potential voters in a grossly uneven way,” the two voters told the Court, “is patently unconstitutional under Reynolds v. Sims and its progeny.”
The voters do not argue that legislatures should be forbidden ever to use total population as the districting measure, but only when it results in the kind of disparity, compared to a plan based on voters’ numbers, that resulted in Texas.
At the theoretical core of this dispute is the theory of representation that a legislature should follow. Texas, supported by the lower court in the new cases, argued that this is a question of how to define democracy, a question that it said should be left to the people’s elected representatives, and not decided by the courts. The state also contended that the Supreme Court had said explicitly in a 1966 decision (Burns v. Richardson) that the choice of population measure was a matter for legislatures.
The Washington Post adds, Supreme Court to hear challenge to Texas Senate redistricting plan:
The Supreme Court said Tuesday that it will decide an important “one person, one vote” case next term to determine whether states should consider total population — or only eligible voters — when drawing roughly equal legislative districts.
A shift from using total population would have an enormous impact in states with large immigrant populations, where greater numbers are children or noncitizens. It would shift power from urban areas to more rural districts.
The Supreme Court in 1964 ruled that states must divide electoral districts population-wise so that political power is equally shared. But it did not specify whether total population or eligible voters was the standard to use.
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“Plaintiffs cite no case in which a court has accepted their claim that the Constitution compels states to apportion their legislative districts based on voter population as opposed to or in addition to total population,” Texas Attorney General Ken Paxton wrote in the state’s response.
“And multiple precedents from this court confirm that total population is a permissible apportionment base under the Equal Protection Clause.”
The challenge is brought by the Project on Fair Representation, an organization headed by Edward Blum, which has also brought challenges based on racial and ethnic classifications to affirmative action in higher education and to the federal Voting Rights Act.
SourceWatch reports on Project on Fair Representation:
Project on Fair Representation is a legal defense fund founded and led by Ed Blum with an agenda “dedicated to reversing race-based legal protections.” The Project is financially supported by Donors Trust.
The Project on Fair Representation funded the challenges in Supreme Court cases Shelby County v. Holder and Fisher v. University of Texas with funds from the Lynde and Harry Bradley Foundation funneled through Donors Trust. Both challenges were organized by Ed Blum. In Shelby County v. Holder the Court’s ruling severely limited the Voting Rights Act and Fisher v. University of Texas, which attacked university affirmative admissions programs, was differed to a lower court.
About the Lynde and Harry Bradley Foundation: “Harry Bradley was one of the original charter members of the far right-wing John Birch Society, along with another Birch Society board member, Fred Koch, the father of Koch Industries‘ billionaire brothers and owners, Charles and David Koch.”
Donors Trust is a “dark money” 501(c)(3) non-profit started in 1999 which creates “donor-advised funds” — “the fund creates separate accounts for individual donors, and the donors then recommend disbursements from the accounts to different non-profits. They cloak the identity of the original mystery donors because the funds are then distributed in the name of DT or DCF, contributing another step to what has been called a ‘murky money maze.'”
“The Koch brothers and other ultra-wealthy industrial ideologues appear to be cloaking an untold amount of their donations to conservative political outlets through DT and DCF.”
So once again the far-right Birchers of the “Kochtopus” are trying to undermine voting rights law, and at least four members of the U.S. Supreme Court agreed to hear this case. That is reason to be concerned.