Bench Memos

Vote-Counting and Nose-Counting in Evenwel v. Abbott

Today the Court heard arguments in Evenwel v. Abbott, a case which will address how states measure population to draw lines for legislative districts according to the “one person one vote” standard. While it’s not clear after today’s argument where several of the justices will end up, it’s a decent bet that the Court will require states to take voter population into account when redistricting, either as the lone measure of population or in some combination with total population.

The concept of “one-person, one-vote” dates to the 1964 case of Reynolds v. Sims, in which the Court required states to redraw their districts to equalize voting districts of widely varying size. At the time, many states had districts which varied so dramatically that one district might be orders of magnitude larger than another, so that some voters had significantly less power at the ballot box than others.

But while the Court established that districts should be roughly equal in size – and adopted a 10% “safe harbor” range and acknowledged that perfect parity would never be possible – it never established which population measure should be equalized between districts: total population, citizen population, or eligible or registered voting population. Today’s case is intended to settle that question.

Appellants Sue Evenwel and Edward Pfenninger, two Texans who are registered voters in overpopulated districts, were represented today by Will Consovoy. Texas Solicitor General Scott Keller defended his state’s districts, and split his time with Ian Gershengorn, arguing on behalf of the United States as amicus curiae. Texas and the United States were not totally aligned in their position: Texas argued that the state should be allowed to choose whether to equalize total or voter population, while the United States argued that total population was the best measure and suggested that using voter population might even be unconstitutional.

The questioners most critical of Appellants’ position were Justices Ginsburg, Sotomayor, and Kagan. Ginsburg pointed out that total population has become the standard measure over the last 50 years and now throughout the country, and suggested that the legal precedents also appear to refer to total rather than voting population. Consovoy parried by pointing out that county lines have an even longer-standing history than total population, but nonetheless were held unconstitutional in Reynolds, and claimed that the precedents leave the definition of “population” wide open. 

Justice Kagan offered a similar concern: If total population is not a permissible measure for state legislative districts, why is the constitutional apportionment described for the House of Representatives not similarly problematic? It’s hard to imagine that the Equal Protection Clause was intended to cast the constitutional design of the entire U.S. Congress into doubt. Consovoy described how the apportionment of federal legislative power in the Constitution’s Great Compromise is sui generis, and wasn’t the focus of the Fourteenth Amendment.

Justice Sotomayor returned repeatedly to the interest non-voters may have in representation. Consovoy pointed out that the non-voters’ interest is really only a claim that having more non-voters in a district will result in diminished access to a representative, which is a fairly attenuated interest. He also pointed out that existing law suggests that such a representation interest isn’t valid, as it’s unlikely a court would allow a non-voter to bring a claim for harm simply by living in an overpopulated district. Justice Alito returned to the standing argument during the United States’ argument time, at which point Deputy SG Gershengorn made the striking suggestion that even a non-citizen (or, as Alito suggested, an undocumented alien) could bring a case challenging a state’s legislative districting.

Another recurring question was that of data. Most states use decennial census data that measures total population rather than eligible voters. The United States claims that data from the American Census Survey, a more frequent national survey that includes eligible voter statistics, is inadequate for redistricting. Petitioners and Texas both felt that the ACS data, which is used by the Department of Justice in bringing Voting Rights Act cases, is quite reliable and a good gauge of voting population.

The Chief Justice and Justice Alito were the most fervent questioners of the Texas and the United States. The Chief Justice pointed out that the very concept of “one person, one vote” implies voting parity among districts and suggested that most states would already have districts that equalize voters sufficiently. Alito, in addition to pressing the United States on the standing issue, pressed Texas SG Keller on whether measuring population was a proxy for voters or whether representational interests were really in play. Keller claimed both were relevant and that states should have the flexibility as sovereigns to choose how to balance those interests.

Justice Breyer seemed to lean to Texas’ side, joining in Justice Kagan’s concerns about the apportionment of the House of Representatives and raising (and then retracting) questions about the constitutional guarantee of a republican form of government. But he also joined Justice Kennedy in questioning whether there was some way to unite both voting and representational interests by requiring states to take both into account.

Neither Justice Thomas nor (more surprisingly) Justice Scalia asked any questions during the argument. I’m not positive where either of those two justices will fall on the issue, as the Court is interpreting not the text of the Fourteenth Amendment itself, but rather the Court’s interpretation of that Amendment. So the outcome of the case is still in doubt.

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