This morning the Court released a unanimous opinion in Evenwel v. Abbott, holding that a state or locality may draw its legislative districts based on total population — the method used by the states and the vast majority of local jurisdictions — rejecting the efforts by Edward Blum, who directs the Project on Fair Representation, who spearheaded the challenge to the Voting Rights Act in Shelby County v. Holder in 2013, and is also behind the affirmative action case from Texas pending before the Court.
As a practical matter, if the plaintiffs had won this appeal, power would shift markedly from urban voters to rural voters and to white and Republican districts over minority and Democratic ones.
Lyle Denniston of SCOTUSblog has the Opinion analysis: Leaving a constitutional ideal still undefined:
For more than a half-century, the Supreme Court has spoken often of its commitment to the constitutional ideal that every citizen’s vote should count as much as every other’s, but it only now has tried to say just how that equality should be measured. On Monday, it announced the result of that initial effort to define “one person, one vote”: the states mostly get to choose, but they don’t have to switch to a system that few of them have ever tried.
Justice Ruth Bader Ginsburg wrote the main opinion in the much-anticipated case of Evenwel v. Abbott, and a hasty reading of it might suggest that the states must use one formula in drawing election maps: take the total number of people in a state, and then divide up that total by the number of seats in the legislature or local governing bodies, with the answer dictating how many people (give or take a few) should be in each district. But that is not where the Court wound up.
While virtually every argument used by the Ginsburg opinion in favor of basing representation on total population (because elected officials supposedly represent everybody and not just the voters) points toward a constitutional mandate, it turns out that the states actually are not bound by the Constitution to craft new election districts by starting with total population. The only thing settled constitutionally now is that the states also are not required to divide up districts by using the voting population to be assigned to each, making them equal. Should a state do it that way, the opinion seems to say, the Court will then face that issue.
The ruling’s bottom line was unanimous, but the main opinion bore many signs that its warm embrace of the theory of equality of representation had to be qualified by leaving the states with at least the appearance of the power of choice, to hold together six solid votes.
Two of the eight Justices were clearly not satisfied with the rhetoric and some of the implications of Justice Ginsburg’s opinion, and only joined in the outcome. Those were Justices Samuel A. Alito, Jr., and Clarence Thomas, each of whom wrote separately. Thomas also joined most of Alito’s opinion.
Had Justice Ginsburg not held five colleagues in support of what her opinion actually said in the end, two — perhaps Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy — might have abandoned the common result. The result then might have been that the Court would have split four to four, settling nothing and releasing no opinion at all while leaving intact a three-judge federal district court’s ruling that Texas had the authority to base its state legislative seats on a division of the total population of Texas.
Texas actually had wanted the Court to allow it to use a total population metric, but to go further and give the states explicit constitutional permission to map out districts with equal populations of voters. The Obama administration also had wanted the Court to rule that the Constitution actually required total population as the starting point for redistricting. Neither persuaded the Court to go take those further steps.
Justice Alito used his separate opinion to try to make it very clear — to legislatures and to lower courts — that the Court decision did, indeed, stop short of those added points. He wrote: “Whether a state is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts. . . . For centuries, political theorists have debated the proper role of representatives, and political scientists have studied the conduct of legislators and the interests that they actually advance.”
Justice Thomas used his lengthy opinion to chastise the majority for even trying to figure out what “one person, one vote” should mean as a constitutional matter; in his view, the Court should leave such issues to the states to decide. Under the Constitution, he wrote, a state “can use total population, eligible voters, or any other nondiscriminatory voter base.”
Joining in the Ginsburg opinion, and offering no separate views, were the Chief Justice and Justices Kennedy, Stephen G. Breyer, Elena Kagan, and Sonia Sotomayor.
The main opinion relied on the history of the Constitution and the time of the founding and since, the history of the Fourteenth Amendment when it was added in 1866 and since, prior Supreme Court precedents since the 1964 declaration of the “one person, one vote” ideal, and the practice among the states in their redistricting actions.
At issue in the case was only the metric that legislatures should or could use in drawing up new election districts for state legislatures and county- and city-elected governing entities. The two voters, backed by a host of conservative political and legal advocacy groups, had not challenged the use of total population as the basis for drawing up new districts for members of the U.S. House of Representatives. The Constitution itself dictates that House districts be based on divisions of total state population.
Ian Millhiser at Think Progress writes, Justice Ginsburg Just Shut Down One Of America’s Most Notorious White Rights Activists:
Edward Blum is the godfather of white rights litigation in the Supreme Court. He spearheaded the litigation in Shelby County v. Holder, which convinced five conservative justices to strike down much of the Voting Rights Act. And he played a similar role in a major challenge to affirmative action currently pending before the Supreme Court. As I have previously noted, “Blum has probably done more than anyone who does not sit on the Supreme Court to dismantle America’s civil rights laws.”
One of Blum’s most ambitious efforts to make the halls of American power whiter has failed, however. Indeed, it failed disastrously. All eight justices rejected the plaintiffs arguments in Evenwel v. Abbott, a case backed by Blum, with six justices joining a majority opinion by Justice Ruth Bader Ginsburg.
The issue in Evenwel is whether states must redraw congressional districts in ways that would shift representation away from communities with large numbers of non-citizen immigrants and towards whiter communities. Under the Fourteenth Amendment, states are allocated congressional representation by “counting the whole number of persons in each state, excluding Indians not taxed.” Thus non-citizens, disenfranchised persons, children and other people who are ineligible to vote still count when seats in the House of Representatives are dolled out to states.
As Justice Ginsburg notes in her opinion, every state uses a similar method to carve up legislative districts within the state. Under the “one person/one vote” doctrine, states are required to draw districts with roughly equal population. Currently, “all States use total population numbers from the census when designing congressional and state-legislative districts, and only seven States adjust those census numbers in any meaningful way.” Thus, a congressional district in one part of a state will have roughly the same number of people as a congressional district in another part of a state, even if different numbers of people actually vote in these two districts.
The plaintiffs in Evenwel asked the Supreme Court to change this equation. Had they prevailed, states with large numbers of non-voters would still receive extra representation in Congress, but they also would have been required to carve up districts according to the number of eligible voters who live in the state. This would have mattered a great deal in states like Texas, the state specifically at issue in Evenwel, where a large number of non-citizen Latinos reside.
In effect, if Blum’s position had prevailed in Evenwel, Latino communities in Texas would have lost representation while the rest of the state would have gained it. But the state would still receive extra seats in Congress for the Latino residents cut out of the districting process.
As Ginsburg notes in her opinion, Blum’s position is out of step with the Constitution and its history. It would be anomalous for the Fourteenth Amendment to require total population to be used to determine how much representation a state receives, while simultaneously requiring states to use a different metric to allocate representation within the state.
Adopting Blum’s preferred rule, moreover, could potentially cast much of the nation into chaos as states struggle to adapt to the new regime. As Ginsburg writes, “adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.”
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The [opinion] leaves an open question — whether states also may comply with one person/one vote by designing districts in the way that Blum would prefer. Ginsburg’s opinion does not answer that question. Nor does a separate opinion by Justice Samuel Alito, which states that “whether a State is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.”
Nevertheless, it is reasonably likely that Texas, or some other conservative state, will test this proposition in short order. Why wouldn’t the sort of lawmakers who embrace tactics like partisan gerrymandering and voter ID laws try to shift representation towards more conservative white communities if they can get away with it?
The practical effect of Evenwel, in other words, may simply be to shift Blum’s advocacy away from the Supreme Court and towards state legislatures.
You can bet that some Tea-Publican will introduce this in the next Arizona legislature.