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Project on Fair Representation

SCOTUS upholds “one person, one vote”

Good news.

In a unanimous decision released Monday, the U.S. Supreme Court ruled to uphold Texas’ current system for drawing legislative districts so that they are roughly equal in population.

The Supreme Court’s ruling is a victory for legislators — mostly Democrats — who represent districts with significant populations of people who are not eligible to vote: primarily children and non-U.S. citizens.

[…]

The case brought together dozens of state legislators who signed on to briefs arguing in Texas’ favor. Members of the House of Representatives’ Mexican American Legislative Caucus and the Texas Senate Hispanic Caucus argued that the legal challenge represented a direct attack on their constituents, many of whom are ineligible to vote because they do not hold citizenship status. In order to accommodate thousands of additional eligible voters necessary to achieve district parity under Evenwel and Pfenninger’s plan, their districts would soar in size so much that their ability to represent their constituents effectively would be diminished, they said.

The Supreme Court acknowledged that argument in the majority ruling.

“As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered 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 — 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,” the ruling concluded.

See here, here, and here for the background. ThinkProgress celebrates the win, but notes that the battle has not been fully settled.

Yet, while [Edward Blum, the conservative activist behind this lawsuit] did not prevail today, some ominous signs for Latino communities in states like Texas can be found in Ginsburg’s opinion. Ginsburg repeatedly uses language suggesting that states have some discretion to decide how to divvy up representation within the state. She writes that “it is plainly permissible” to divide up districts as Texas has done, and that “states and localities may comply with the one-person, one-vote principle by designing districts with equal total populations.”

That leaves an open question — whether states also may comply with one person/one vote by designing districts in the way that Blum would prefer. Ginsburg’s opinion does not answer that question. Nor does a separate opinion by Justice Samuel Alito, which states that “whether a State is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.”

Nevertheless, it is reasonably likely that Texas, or some other conservative state, will test this proposition in short order. Why wouldn’t the sort of lawmakers who embrace tactics like partisan gerrymandering and voter ID laws try to shift representation towards more conservative white communities if they can get away with it?

The practical effect of Evenwel, in other words, may simply be to shift Blum’s advocacy away from the Supreme Court and towards state legislatures.

Rick Hasen, however, is not very concerned about that.

Justice Ginsburg’s opinion holds that districting using total population was consistent with constitutional history, the Court’s own decisions, and longstanding practice. A long section of Justice Ginsburg’s opinion recounts constitutional history, and relies on the fact that for purposes of apportioning Congressional seats among states, total population, not total voters, must be used. Plaintiffs’ argument in Evenwel was inconsistent with this practice. As to the Court’s own precedents, Justice Ginsburg acknowledged language supporting both total voters and total population as possible bases, but Court’s practice has been to look at total population in its cases. Further, that is the practice that states uniformly use, despite the occasional case such as Burns v. Richardson, allowing Hawaii to use a registered voter level.

Finally, Justice Ginsburg gives a sound policy reason for a total population rule. In key language, she writes that “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.” A footnote following this states that even though constituents “have no constitutional right to equal access to the their elected representatives,” a state “certainly has an interest in taking reasonable, nondiscriminatory steps to facilitate access for all its residents.”

Perhaps the most important aspect of Justice Ginsburg’s opinion, and especially notable because it attracted the votes of not just the liberals but also Chief Justice Roberts and Justice Kennedy, is the Court’s refusal to give Texas the green light to use total voters if it wants in the next round of redistricting. The Court simply put the issue off for another day. It is hard to stress enough what a victory this is for liberal supporters of voting rights. Many of us thought Burns already gave Texas this power. The fact that the Court leaves that issue open will serve as a deterrent for states like Texas to try to use total voters in the next round of redistricting, because it will guarantee major litigation on the question.

SCOTUSBlog sums up:

The ruling’s bottom line was unanimous, but the main opinion bore many signs that its warm embrace of the theory of equality of representation had to be qualified by leaving the states with at least the appearance of the power of choice, to hold together six solid votes.

Two of the eight Justices were clearly not satisfied with the rhetoric and some of the implications of Justice Ginsburg’s opinion, and only joined in the outcome. Those were Justices Samuel A. Alito, Jr., and Clarence Thomas, each of whom wrote separately. Thomas also joined most of Alito’s opinion.

Had Justice Ginsburg not held five colleagues in support of what her opinion actually said in the end, two — perhaps Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy — might have abandoned the common result. The result then might have been that the Court would have split four to four, settling nothing and releasing no opinion at all while leaving intact a three-judge federal district court’s ruling that Texas had the authority to base its state legislative seats on a division of the total population of Texas.

Texas actually had wanted the Court to allow it to use a total population metric, but to go further and give the states explicit constitutional permission to map out districts with equal populations of voters. The Obama administration also had wanted the Court to rule that the Constitution actually required total population as the starting point for redistricting. Neither persuaded the Court to go take those further steps.

I’m sure Blum and his ilk will never go away, but at least as far as this goes, they would appear to have a steep hill to climb to win in a subsequent attempt to do something like this. For that we can be glad. A statement from Sen. Sylvia Garcia, whose Senate district would have been greatly affected by this lawsuit, is here, and a statement from the Mexican American Legislative Caucus is here. Daily Kos, the Brennan Center, Trail Blazers, Kevin Drum, TPM, the Lone Star Project, ThinkProgress, the Chron, and the Current have more.

UPDATE: More from The Nation and The Atlantic.

The arguments in the “one person, one vote” case

Here’s the Chron story:

“We start with the proposition that one person can’t be given two votes, while their neighbor be given one vote,” said Arlington, Va., attorney William Consovoy, arguing Evenwel’s case before the high court.

Texas officials argued that the state – like every other state and the U.S. House of Representatives – apportions legislative districts fairly by the only workable measure it has: total population as calculated by the U.S. Census Bureau. Any disparities in actual voters, they counter, must be intentionally “invidious” for the courts to intervene.

“When a state equalizes a population base, it’s not discriminating,” said Texas Solicitor General Scott Keller. “It’s doing exactly what the one-person, one-vote doctrine was set up to do.”

[…]

Liberals on the court echoed many of the same concerns as activists who view office-holders as representatives of their entire communities, not just voters.

“There is a voting interest,” said Justice Sonia Sotomayor. “But there is also a representation interest. The Legislature is protecting not just voters. It’s protecting its citizens or non-citizens.”

Along with Justice Ruth Bader Ginsburg, Sotomayor asked the most pointed questions of Consovoy, noting that under Evenwel’s system, women, African-Americans and others who were once denied the right to vote would not have counted in past legislative apportionments.

But Justice Samuel Alito, one of the court’s conservatives, noted that the current system of counting total population includes prisoners, “undocumented aliens,” and others who can’t vote. “Isn’t your argument that voters are irrelevant?” Alito said, pressing the government lawyers.

The two sides also jousted on the rights of children.

“Children are represented at the polls,” Consovoy said, “They’re represented at the polls by their parents.”

“How about children who are citizens when their parents are not?” Sotomayor shot back.

See here for the background. Here’s the Trib‘s coverage.

Texas Solicitor General Scott A. Keller and U.S. Deputy Solicitor General Ian H. Gershengorn defended the current process Tuesday, with Keller arguing that an unraveling of the current system would “upend the redistricting process.”

Justice Samuel Alito challenged Gershengorn with what he described as “an extreme case”: a rural district with a large prison full of disenfranchised incarcerated people. Justice Anthony Kennedy questioned why voter equality and population equality were mutually exclusive.

Keller countered that to side with the plaintiffs, “states would inevitably have to disregard many other traditional redistricting factors, like compactness, continuity [and] keeping communities together.”

Gershengorn pointed to New York City as an example of why the plaintiffs’ argument was unfeasible.

He noted that 9 percent of Manhattan’s population is children, who are included in the census but are not able to vote. In contrast, 30 percent of the population in neighboring borough Brooklyn is made up of children.

If the Evenwel-endorsed standard became law, Gershengorn said, Brooklyn would theoretically need to absorb Manhattan voters into its state legislative districts. In his view, that would disrupt political constituencies and compactness.

And here’s SCOTUSBlog:

In fact, the principle of “one person, one vote” has been understood as equality of districts, rather than voters, on the theory that everyone placed in each district — whether eligible to vote or not — is entitled to be represented by the winner. But there is a political movement now, increasingly active, that is pushing for the famous phrase to mean voter equality, so the process would start with making sure that those who are qualified to vote should wind up with roughly equal numbers in each district.

If there is great disparity between the numbers of eligible voters between districts, the theory goes, there is no voter equality: those in districts with fewer voters have considerably more clout, at election time, than those with many voters — even if the districts’ total populations are equal. A district over-populated with voters is said to dilute the ballot strength of each, compared to some other districts’ residents.

This equality theory was neatly captured by Justice Samuel A. Alito, Jr. — although it was not clear whether he was really tempted to embrace it, or was just exploring its meaning. Suppose, he said, there was a rural district in which only nine percent of the population could vote, because its overall population is swelled by a large prison and none of the inmates can vote, but there is another district with about the same total population, but ninety percent of its residents can vote. “Is that okay?” he asked a federal government lawyer, Deputy Solicitor General Ian H. Gershengorn.

Gershengorn responded that the courts have recognized that legislatures, in drawing new districts, are entitled to rely on census data — that is, total population figures. There is no existing way, Gershengorn would go on to say, for the census to provide data that would aid legislatures in dividing up seats according to voter figures without simultaneously winding up with major differences in total populations. That, he indicated, would skew district population differences.

What the plaintiffs are arguing for is that citizen voting age population (CVAP) be used as the standard to draw districts. The effect that would have on districts with a heavy concentration of Latino voters, who tend to be younger and more likely to be non-citizens, would be profound, but the main practical problem is that there’s no accepted standard to enumerate CVAP. The Census relies on an actual count, while CVAP is done by various statistical sampling methods, none of which are allowed to be used in doing the Census. The argument about prisoner populations in rural areas is particularly ironic, since as things stand right now those prisoners, many of whom come from the big urban areas like Houston and Dallas, are counted in the population of the small rural counties where they are incarcerated. That has the effect of favoring those rural areas in the redistricting process. In addition, a big part of the reason why Texas has been gaining so many members of Congress in recent years is because its overall population growth is fueled in large part by big increases in children and foreign-born immigrants. If plain old population is good enough for that, surely it ought to be good enough for drawing districts. But of course, the law is what five members of the Supreme Court say it is, so who knows. ThinkProgress, which also wrote at length about another redistricting-related case that could stand everything we now know about apportionment on its head, Ross Ramsey, and Dahlia Lithwick have more.

Oral arguments in “one man, one vote” case today

High stakes, indeed.

The U.S. Supreme Court will hear oral arguments Tuesday in a case that could have far-reaching implications for the way legislative districts in Texas — and across the country — are drawn. A coalition of Texas legislators, mostly Democrats, fears that if voters suing the state succeed, minority communities will have significantly reduced political power.

The case, Evenwel v. Abbott, centers around the legality of Texas’ current method for drawing the lines dividing state Senate districts. As it stands, Texas draws its districts so they are roughly equal in population. Even those who can’t vote — such as children, non-citizens and felons — get equal representation in the Senate.

The Texans suing the state, Sue Evenwel of Mount Pleasant and Edward Pfenninger of Montgomery County north of Houston, say this method leads to “gross malapportionment” of the value of their votes. Because there are a larger number of potential voters in Pfenninger’s district than there are in Evenwel’s district, Pfenninger says his ballot counts for less.

Dozens of state legislators, mostly Democrats, have signed on to briefs with the court defending the legality of Texas’ current policy — that all Texans, regardless of their eligibility to vote, should have equal representation. Among the briefs are one by the House of Representative’s Mexican American Legislative Caucus — a group of 41 state representatives, all but five of whom are Democrats — and the Texas Senate Hispanic Caucus, made up of 11 Democratic senators. Those same 11 senators filed another brief presenting further arguments in the state’s favor.

“This case represents a direct attack on our constituents,” said Sen. José R. Rodríguez, D-El Paso, who chairs the Senate Hispanic Caucus. “The implications could not be larger for minority voting rights and for Texas as a whole.”

See here for some background, and here for some historical perspective. SCOTUS had previously declined to hear a similar case from Texas brought by the same crowd. It’s unclear why they took this one up, but courts have consistently turned back such challenges in the past, as did the Fifth Circuit in this case.

Note that in this case, the defendant is the state of Texas, so that puts Abbott and Paxton on the same side as MALC and the Senate Hispanic Caucus. However, that doesn’t mean they are on the same page in defending against this lawsuit.

Texas officials are defending their map, but with a catch. They say the Constitution gives options to state and local governments, letting them decide to equalize districts based either on total population or those eligible to vote.

“The equal protection clause does not compel a state to choose a particular population base when reapportioning,” the state argued.

The Obama administration is urging a more limited ruling. U.S. Solicitor General Donald Verrilli says the court should uphold the Texas map and its use of total population, without suggesting that officials might have other options.

Those advocating for total population say any other measure would be fraught with practical problems. States can rely on the once-a-decade U.S. Census to map total population, but no comparable data exists to allow the use of eligible voters, according to a brief filed by Nathaniel Persily, a Stanford Law School professor who specializes in election law.

A brief on the other side argues that map-makers can reliably use a separate survey, conducted by the Census Bureau based on statistical samples, that provides estimates of the citizen voting-age population. That brief was filed by demographers led by Peter Morrison, founding director of the RAND Corp.’s Population Research Center.

Of course, Congressional Republicans have been fiercely opposed to using statistical sampling by the Census Bureau in conducting its decennial survey, so this bed is just packed full of strangers. We’ll see how it goes. ThinkProgress, Trail Blazers, TNR, Michael Li, Rick Hasen, and Richard Pildes have more.

SCOTUS to hear Texas “one person one vote” challenge

Gird your loins.

vote-button

When drawing voting districts, should lawmakers seek to make each district have roughly the same number of people, or the same number of people eligible to vote?

The Supreme Court is going to answer that question, the court announced Tuesday morning. The question lies at the heart of a Texas case, and both sides say it will help clarify what the Constitutional principle of one-person-one-vote means at the heart of the Equal Protection Clause.

Titus County GOP chairwoman Sue Evenwel and Edward Pfenninger of Montgomery County sued Gov. Perry in 2014 after he signed into law a revised redistricting plan, the product of protracted back and forth disputes between lawmakers, the state, the Justice Department and federal courts. That plan, based on a map approved by the courts, put roughly the same number of Texans in each district.

But Evenwel and Pfenninger, sued because they say that lawmakers should only balance the number of resident in each district that are eligible to vote. Otherwise, voters in areas that have higher percentages of residents who are not eligible to vote have more clout.

A Fifth Circuit Court of Appeals dismissed those claims and granted the state’s motion for summary judgment last year. Now, the Supreme Court will take up the case next year, it announced Tuesday.

The lawsuit was filed last year. Rick Hasen explains why (in language that lawyers will understand) it got to SCOTUS so quickly. This Texas Redistricting post from the time gives the background on the case and what is at stake. Note, as Michael Li did on Facebook, that in this case the state of Texas is on the same side as minority interests; any jokes are left as an exercise for the reader. A similar case brought by the same group of grievance-seekers was rejected by the courts and declined to be heard by SCOTUS. What’s different this time is not clear, but needless to say we’ll need to keep a close eye on it. The case will be heard in the next Supreme Court term. By the way, am I the only one thinking that if the Supreme Court really wants to go all originalist on us here, they could just declare that all those ineligible voters – the non-citizens, felons, and children that these plaintiffs are complaining about – only count as 3/5 of a person for apportionment purposes. What could possibly go wrong with that? Hasen, Letters from Texas, and Ed Kilgore have more.