Pick your headline about the U.S. Supreme Court's unanimous ruling inEvenwel v. Abbott, No. 14-940, which held that reapportionment of state and local legislaturesmaybe based on total Census-counted population, and rejected the argument that it mayonlybe based on a count of citizens of voting-age:
- Supreme Court: Illegals Can be Counted in Redistricting!
- Supreme Court Rejects Conservative Attempt to Disenfranchise Children!
The case was laden with controversy, because choosing whom to count when reapportioning legislatures goes to the very heart of representative government by determining who is included in “We the People.” Starting with theConstitution's preamble and formalized in the Fourteenth Amendment’s Equal Protection Clause which protects all persons, not only citizens, our traditions and the Supreme Court have viewed "person" expansively, culminating withReynolds v. Sims, 377 U.S. 533, 577 (1964), announcing the oft-repeated"one-person, one-vote" standard, whichrequires state legislatures be apportioned based on population. Prior toReynolds, the houses of many state legislatures appoertioned like the U.S. Senate, where each county or other political subdivision was entitled to representation. But afterReynolds, population was the required metric. That decision rewrote American politics by shifting the locus of power to urban population centers.
In the intervening half-century, one-person, one-vote became a kind of mantra, but one without any concrete meaning in reapportionment cases because the Court studiously avoided answering explicitly a basic question: just what "population" was it referring to?All Census-counted residents? U.S. citizens? Those eligible to vote? And if there are populations that statesmaycount, what population is the minimum which the Equal Protection Clauserequiresto be counted? The debate became mostly academic since most states employed total Censuspopulation as their reapportionment metric, and it became "the de facto national policy." Joseph Fishkin,Weightless Votes, 121 Yale L.J. 1888, 1891 (2012).
But theEvenwelplaintiffs went back to the one-person, one-vote principle and asked the Court to uphold the plain meaning of the "vote" part: they argued the population states are required to count is limited to citizens of voting age. Total Census population, after all, includes undocumented aliens, felons, minors, and others who cannot vote. How can one-person, one-vote include them, the plaintiffs asked? The paramount Equal Protection principle, they concluded, is equalvoting power, not equalrepresentation.
The Court (as we argued in theamicus brief we filed inEvenwelin support of Texas) soundly rejected the notion that the one-person, one-vote standardrequiresstates to count citizen voting-age population. The essential heart of the Equal Protection Clause is equal representation, not equal voting power. The entire Court concluded that the body politic in the states is comprised of all persons present, regardless of citizenship or voting status.
TheEvenwelopinion wasn't sweeping,but instead drew a narrow rule: statesmaycount everyone, but they are notrequiredto, provided they are using "nondiscriminatory population bases." Thus, Texas's plan, and the plans of those states which continue to count total population (an overwhelming majority of states do just that) survive. As long as a state's apportionment uses total population, it will have a safe harbor against reapportionment challenges.
At first blush, it may seem odd to conclude that those who are not U.S. citizens and those who are not eligible to vote are deserving of representation in our state legislatures—at least until one reads the text of the Equal Protection Clause, understands its long-standing judicial interpretation which includes all persons, and sees that elected officials represent everyone in their jurisdictions, not only citizens or those who can elevate them to office.Evenwelthus was not a close call, and the unanimous Court held that "the rule appellants urge has no mooring in the Equal Protection Clause." Slip op. at 19.
And what about the "one-vote" part of theReynoldsrule? The Court really didn't address whether the appellants' proposed citizen voting-age population rule had mooring in the one-person, one-vote mantra (which it plainly did), other than to note:
For every sentence appellants quote from the Court’s opinions, one could respond with a line casting the one-person, one-vote guarantee in terms of equality of representation, not voter equality.
In other words, one-person, one-vote is a mantra mostly without meaning.Evenwelhas recognized thatthe rule in reapportionment cases is more of a "one-person, one-representative" principle.
But what about the handful of jurisdictions which do not use total population, but exclude some portion of their residents from representation? What justification remains which would allow them to continue to do so? Some of these jurisdictions exclude a large percentage of their actual populations from their reapportionment count, on the avowed desire to protect actual residents' voting power.
Hawaii is the most prominent and extreme. It counts only "permanent residents" and Hawaii "extracted" 108,767 of its Census-counted residents from its last reapportionment population. Like Texas, Hawaii included undocumented aliens (who are counted as residents by the Census), prisoners, felons, and others, but unlike Texas, it excluded active duty military personnel if they elected to pay state taxes in another state. It also excluded military dependents if they were associated with a service member who so elected, and university students who did not qualify to pay resident tuition. Hawaiidoes so on the avowed basis that it is counting state citizens and protecting their voting power.Which means that to the State of Hawaii, undocumented aliens and felons are all Hawaii citizens, but resident military, dependents, and students who don't qualify to pay resident tuition are not. This plan resulted in nearly 8% of Hawaii's actual population being deprived ofrepresentation in the state legislature.
The biggest question remaining after the Supreme Court's decisionis how this and similar exclusions will be treated by the courts. TheEvenwelopinion cryptically noted that if states rely on "nondiscriminatory population bases," the choice of whom to include is better left to them. By what standard shouldfuture courts evaluate whether a state is not discriminating when it favors voting power over equal representation for all, and chooses to deny some residents the right to be represented equally as recognized by Evenwel?
In upholding Hawaii's plan, a three-judge federal court inKostick v. Nago, 960 F. Supp. 2d 1074 (D. Haw. 2013),aff’d, 134 S. Ct. 1001 (2014) concluded that the standard of review in such cases is rational basis. But afterEvenwel, that question should be revisited because the Court squarely came down on the side of representational equality as the overriding Equal Protection principle, even though by not requiring states to count everyone, it recognized the continuing, but lesser, role of voting power.
Given that weighing, courts should demand that if a state chooses to chooses to employ a metric other than total population, it must meet a more exacting standard of review than rational basis. It should be required to show thatthe resulting reapportionment plan is substantially similar to a plan based on a permissible population basis such as total population, state citizens, or U.S. citizens. And it should do so by employing “[a]n appropriately defined and uniformly applied requirement” when deciding whom to count and whom to exclude.See,eg.,Dunn v. Blumstein, 405 U.S. 330, 343 (1972) (utilizing standard in voting discrimination case). In the absence of such a compelling showing, states must use the total Census-counted population as their reapportionment population basis.
Evenwelreaffirmed the principle that we the people mostly get to choose who will be included in "We The People," and when all are included, the federal courts will not interfere. But when that choice is to exclude some of us, the challenges in legislatures, reapportionment commissions, and the courts will continue. As the competing headlines illustrate,it's all politics in the end.