The Court Affirms the Value of Equal Representation For All

In Evenwel v. Abbott, the Supreme Court unanimously upheld a state’s use of total population – rather than estimates of eligible voting population – in apportioning state legislative districts. In doing so, the opinion of the Court relied on and affirmed the democratic value of representational equality. But the Court left for another day whether states will be able to use alternative metrics to manipulate the allocation of voting power, and the concurring opinions indicate that the views on that issue are not so unanimous.

In Reynolds v. Sims, 377 U.S. 533 (1964), the Court held that Equal Protection prohibits “malapportionment,” meaning that states generally must apportion districts to equalize population in each district. Since then, states have almost uniformly used total population, based on the decennial census, as the basis for apportionment. In Evenwel, the plaintiffs challenged that settled practice, arguing that the Fourteenth Amendment requires equalizing districts by voters, using rolling survey estimates of citizen voting age population (“CVAP”) or some similar metric.

Rejecting this challenge, the Supreme Court held, “based on constitutional history, this Court’s decisions, and longstanding practice, that a State may draw its legislative districts based on total population.” The Opinion of the Court – authored by Justice Ginsburg and joined by all except Justices Thomas and Alito – did not merely find the use of total population permissible; it embraced the principle of “representational equality,” explaining:

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 navigating public-benefits 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.

(Op. at 18-19.)

As the Court observed, plaintiffs’ argument had no “mooring” in the Equal Protection Clause. The case was not about electoral equality in the sense of freedom from discrimination at the voting booth or the power to elect one’s candidate of choice. It was about an attempt to re-allocate political power away mostly from urban centers (with higher concentrations of nonvoters) and toward more sparsely populated, often rural areas.

In this regard, the Court’s reference to children is significant and reflects vital issues at stake. Children are by far the largest share of the nonvoting population, and a principal responsibility of a state legislature is to allocate resources for its children, including education, access to health care, and services to mitigate the effects of poverty. Allocating districts based on total population – including areas with high populations of children – is thus necessary to ensure that state resources are allocated fairly and appropriately to those who need them most.

To be sure, the Court deferred resolving whether, or in what circumstances, States may use voter-eligible population rather than total population. Notably, the Court could have adopted the rationale advocated by the State of Texas: that States, under the Constitution, have discretion to use whatever population metric they choose, so long as it is nondiscriminatory. The Court, however, declined to adopt the states-rights approach in favor of a rationale rooted in the principles of representational equality. That rationale strongly suggests that total population is not merely a permissible metric, but would be the required, or at least presumptively required, basis for apportionment.

If or when the next case arises, however, it seems unlikely that the Court will be unanimous. Justice Thomas’s concurring opinion makes it clear that he would take a states’ rights approach. He sees no sound basis for judicial enforcement of the “one person, one vote” principle and argues that Court precedent also protects the rights of eligible voters against vote dilution.

Justice Alito’s concurring opinion agrees using total population is permissible both under precedent and for practical considerations, including that using census data is “more reliable and less subject to manipulation and dispute than statistics concerning eligible voters.” Justice Alito’s opinion, however, disputes the majority’s constitutional history: namely, whether the framers of the Constitution and Fourteenth Amendment were truly motivated by principles of representational equality, or whether it was really all about politics and power plays among States. His conclusion – that it is “impossible to draw any clear constitutional command from this complex history” – may imply the view that the choice of population metrics must be left to the political domain.

For now, however, the Court has preserved the well-settled practice of using total population while upholding the principles of representational equality. Battles over alternative apportionment schemes – in state legislatures, and then courts if necessary – are left for another day.

* Mr. Carpenter is a member of Sidley Austin’s Supreme Court and Appellate practice and represented the Children’s Defense Fund, Fair Elections Legal Network, and others, as amici curiae in support of Respondents.

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