In Evenwel v. Abbott, appellants, residents in a rural Texas legislative district urged the Supreme Court tohold that Texas’ use of total population as a basis for drawing state legislative districts violated the Equal Protection Clause and its principle of “one person, one vote.” Instead, appellants claimed, that principle required Texas to base districting solely on a population of eligible voters, thereby excluding all nonvoters such as children and immigrants.
Had appellants prevailed, they would have wrought a radical revolution that overruled 50 years of Supreme Court decisions, beginning with Reynolds v. Sims, 377 U.S. 533(1964), and overturned the redistricting methods used in all 50 states. In Texas and other states, legislative representation would have been transferred from more populous urban districts to less populous rural districts, thus undoing the reapportionment revolution of the 1960s. This would have discriminated against low-income and minority people concentrated in those urban areas, andin Texas, where it would have contributed toefforts to suppress the growing political strength of the state’s Latino citizens.
The Supreme Court unanimously rejected appellants’ claims, with all eight justices agreeing that it was permissible for Texas and other states to draw its legislative districts based on total population and that the Equal Protection Clause did not mandate the use of an eligible-voter population base.
Notwithstanding the Court’s unanimous rejection of appellants’ position, conservative groups see a silver lining in the Court’s conclusion that there was no need to “resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible populations rather than total population.” (Opinion at 19). A Forbes magazine contributor, for example, contends that “the plaintiffs and their ideological allies won a significant victory” by opening the door to “ a political movement to shift the basis for apportionment away from population in the direction of CVAP [citizens of voting age population].” While this may be consolatory rhetoric for appellants’ disappointed supporters, the Court’s opinion should discourage any such movement.
The Court’s opinion, written by Justice Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Kagan and Sotomayor, dismissed appellants’ claims based on “constitutional history, this Court’s decisions, and longstanding practice. . . . ” (Opinion at 1).*
*Justice Thomas and Justice Alito wrote separate opinions concurring in the dismissal but disagreeing with parts of the Court’s reasoning. Justice Thomas’ remarkable concurrence would deny that the Court hasany power to pass on the State’s choice of an apportionment base, claiming that the Constitution leaves such choices entirely to the States. (Thomas, J. concurring at 2). He thus would overturnBaker v. Carr, 369 U.S.186 (1962) and the era of apportionment reform that, based on the Equal Protection Clause, was ushered in by that iconic decision.
Much of the Court’s opinion is devoted to showing that apportionment based on total population is the theory of the Constitution. The Court finds the source of this theory in the Founders’ choice in Article I, section 2 of the Constitution to allocate members of the House of Representatives among the states on the basis of the number of inhabitants. Itquotes Madison’s statement that this allocation is a “fundamental principle of the proposed constitution” and Hamilton’s statement, endorsing apportionment based on total population, that “There can be no truer principle than this—that every individual of the community at large has an equal right to the protection of government.” (Opinion at 8-9).
The Court found the same principle reflected in the Fourteenth Amendment’s requirement thatmembers of the House be allocated among the states based on “the whole number of persons in each state, excluding Indians not taxed.” The Court quotes approvingly statements in the debates preceding the Amendment’s adoption that “the [drafting] committee adopted numbers as the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed. . . .” and that “Numbers, not voters . . . is the theory of the Constitution.” (Id at 10-13). The Court specifically rejects the arguments at the heart of Justice Alito’s concurrence (joined by Justice Thomas) that these constitutional provisions reflect only struggles for political power, not constitutional theory and are not proper analogies for state apportionment. (Id at 13-15). The Court’s opinion concludes that “the constitutional scheme for congressional representation rests in part on the same representational concerns that exist regarding state and local districting.” (Id at 15).
The Court also emphasizes its earlier opinion in Wesberry v. Sanders, 376 U.S. 1, 13, 18 (1964)that the Constitution’sprinciple allocating congressional representatives among the States also applies to their allocation within the States and Wesberry’s conclusion that the “Constitution’s plain objective [makes]equal representation for equal numbers of people the fundamental goal for the House of Representatives.” (Opinion at 12-13).Notably, Reynolds v. Sims’ requirement that state legislative districts be drawn to approximate equal numbers of people, derives directly from Wesberry and its principle of “equal representation for equal numbers of people.” Reynolds, 377 U.S. at 560-61 (‘the fundamental principle in this country is one of equal representation for equal numbers of people”). In sum, the Court recognizes that this principle guiding apportionment of state legislatures under the Equal Protection Clause has its roots in the history and theory of the Constitution. Efforts to deviate from the total-population standard will be hard putto overcome that holding.
Court precedent also is a barrier to any effort to permit the use of a voter base. As Justice Ginsburg’s opinion explains, with one unusual exception, none of the Court’s apportionment decisions, beginning with Reynolds, even considers a population of voters. They invariably consider equality of total population, with only minimal deviations,as the proper measure determining conformity to the Equal Protection Clause. (Opinion at 16-17).The Court dismisses the one exception,Burns v. Richardson, 384 U.S. 73 (1966), as reflecting “Hawaii’s special population problem—in particular, its substantial temporary military population” which inflated one island’s population. (Opinion at 4).*
*Even then, Burns allowed Hawaii’s use of voter-registration only because it was similar to a total population base, aftersubtracting military personnel. Burns also warned that it was not endorsing voter-registration bases, expressing concerns that they were subject to manipulation. Burns v. Richardson, 384 U.S. at 93-94.
Justice Ginsburg’s opinion also invokes practice. Today all 50 states use total population. (Opinion at 18).* This universal and consistent practice is well-recognized as a basis for interpreting the Constitution to require some form of total population base and to preclude any base like eligible voters or citizens of voting age, that would exclude large groups of inhabitants like children or immigrants. See NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) and cases cited at Opinion at 18. The fact that no state uses a voter or citizen- of-voting-age population also weighs against the constitutionality of those bases. See Printz v. United States, 521 U.S. 898 (1997).
* A few states make minoradjustments by excluding residents they consider temporary and lacking meaningful ties with a district, like military personnel, out-of-state college students, or prisoners incarcerated in rural prison districts far from their pre-incarceration domiciles.
Justice Ginsburg’s opinion concludes by identifying considerations of equity and effectiveness:
As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. . . . 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 in navigating public bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.
Moreover, as her opinion and Court precedents it cites recognize, a total population base provides both equality of voting and equality of representation. (Opinion at 16). It assures all voters that their vote will elect a representative representing equal numbers of people, and voters and nonvoters alike are assured of equal representation. (Id.)By contrast, an eligible-voter base debases the vote of voters in more populous districts by giving voters in less populous districts greater representation and, at the same time,disadvantagesthe interests of all inhabitants of more populous districts. Studies show that such malapportionment misallocates government resourcesin favor of less populous districts and to the disadvantage of more populous districts with greater needs. See Stephen Ansolabehere et al., The End of Inequality: One Person ,One Vote and the Shaping of American Politics (2008).
Unlike total population, an eligible voter or citizen-of-voting-age population has no roots in our Constitution, in precedent, or practice and is inconsistent with our most basic traditions. It would deny representation, for example, to immigrants who pay taxes and even fight in our armed forces,conflicting with the principle of “no taxation without representation,” and its corollary that all who are subject to our laws are entitled to representation. It would create the “virtual representation” against which the colonists rebelled and led them to declare independence. On top of this, as even Justice Alito acknowledges, there are no reliable statistics for eligible voters or citizens of voting age, and such counts are subject to manipulation and dispute. (Alito, J. concurring at 1). In sum, for a myriad of reasons, voter-population or citizen bases would deny the equal protection of the laws that the Equal Protection Clause guarantees to all “persons,” not just voters or citizens of voting age.
As the Court explained, history, precedent and practice sufficed to reveal the infirmity of appellants’ claims, making it unnecessary to address the question, raised by Texas, of whether voter-eligible populations might be permissible, even though not required. But that exercise of judicial restraint should hardly give encouragement to efforts by those seeking unjust and unequal electoral advantages by tinkering with the total-population standard the Court’s reasoning so powerfully endorses.
Mr. Rosdeitcher was a co-author of an amicus brief submitted by the Brennan Center for Justice in support of affirmance in Evenwel v.Abbott, the case discussed here. The views expressed here are his alone and expressed in his personal capacity. They are not offered as representing the views of the Brennan Center.