With the presidential election just seven months away, the Supreme Court has begun the month of April by handing Democrats an important political victory. In a unanimous 8-0 decision in the case of Evenwel v. Abbott, the Court ruled that states may count all residents in drawing up their election districts.
Evenwel v. Abbott got only modest attention from the media when oral argument was heard by the Court last September, but from the start, the main question that Evenwel v. Abbott posed was momentous. At issue was what one person, one vote means when it comes to apportioning legislative districts. Evenwel v. Abbott asked the Court to determine whether states should apportion legislative districts by counting their total population, as is now the case throughout the country, or by counting only the number of eligible voters.
At a time when seventeen states will impose new voting restrictions for the presidential election and the federal Election Assistance Commission stands accused of stifling votes, both parties had a lot riding on the decision.
As a rule, counting all the people in a legislative district benefits urban areas, where there tend to be more children, more undocumented immigrants, and more documented immigrants who are not yet citizens than in rural areas. Democrats typically win out when urban areas increase their voting power, Republicans when voting power increases in rural areas.
The plaintiffs in Evenwel v. Abbott, Sue Evenwel and Edward Pfenninger, argued their vote was being diluted because in the Texas Senate districts in which they live, there are more eligible voters than in other districts. Basing apportionment on total population, they contended, reduced the power of their votes.
The plaintiffs were represented by the Project on Fair Representation, a small but highly effective conservative group that is also behind the legal challenge to the affirmative-action case, Fisher v. University of Texas, now pending before the Court. In their brief the plaintiffs argued, “The ‘population’ that must be equalized for purposes of the one-person, one-vote rule is the number of eligible voters in the geographic area from which the districts are to be apportioned.”
It is an idea that runs counter to more than fifty years of Supreme Court rulings in which census figures have been the basis for equalizing the population size of districts. The initial key ruling came in 1962 in Baker v. Carr, when in a case about how seats in the Tennessee General Assembly were filled, the Court held apportionment was a justiciable matter, not a political matter beyond its reach.
Two years later, the Court completed the work it had begun in Baker v. Carr, when, in a majority opinion written by Chief Justice Earl Warren in Reynolds v. Sims, the Court, citing the Equal Protection Clause of the Fourteenth Amendment, held that the districts for Alabama’s state legislature must be as nearly even in population as possible. “Legislators represent people, not trees,” Warren wrote in his much quoted opinion. “The weight of a citizen’s vote cannot be made to depend on where he lives. Population is of necessity the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies.”
At the time the political implications of the Court’s ruling in Reynolds v. Sims were especially infuriating to Republicans, and in 1965 Everett Dirksen, the Republican Senate leader, proposed a constitutional amendment that would permit one house of a bicameral state legislature to be apportioned on grounds other than population. Dirksen’s amendment passed 57-39, but ended up falling seven votes short of the required two-thirds majority needed in the Senate for a constitutional amendment.
There has been no major effort to revive Dirksen’s constitutional proposal, and the Court has held to the one-person, one-vote principle ever since. Even in 2013, when in Shelby County, Alabama v. Holder, the Court gutted much of the Voting Rights Act, the meaning of the one-person, one-vote principle was never in question.
The long-run political impact of Evenwel v. Abbott is unclear. The Court’s decision may be only a temporary victory for Democrats. In her impassioned majority opinion, in which five other justices, including Chief Justice John Roberts Jr., joined, Justice Ruth Bader Ginsburg stressed the importance of determining the size of election districts by counting nonvoters as well as voters.
“As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or register to vote,” Ginsburg wrote. “Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefit bureaucracies.”
But Ginsburg conceded that Evenwel v. Abbott only said states may use total population in apportioning districts. It did not say they must. “We need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population,” Ginsburg observed in her conclusion.
The door remains wide open for a state to test how far Evenwel v. Abbott goes by drawing up districts on the basis of the eligible voters in them. During the oral argument before the Court, that was an idea the conservative justices seemed sympathetic to, and in his concurring opinion, Justice Samuel Alito all but invited a state to try apportioning its electoral districts on the basis of the eligible-voters criterion. “Whether a State is permitted to use some measure other than total population is an important and sensitive question,” Alito wrote, “that we can consider if and when we have before us a State that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.”
In view of the Republican dominance in so many state legislatures, it is likely that we will have such a test case before long. What better way for the GOP to try to limit the growing power of Latino and other immigrant groups it has alienated in recent years?
Nicolaus Mills is professor of American studies at Sarah Lawrence College and author of Like a Holy Crusade: Mississippi 1964—The Turning of the Civil Rights Movement in America.