Richard L. Hasen is a Chancellor’s Professor of Law at the University of California, Irvine School of Law. He blogs at Election Law Blog.
It is tempting to think of the plaintiffs in Evenwel v. Abbott as conservatives. After all, the brainchild behind this new “one person, one vote” lawsuit, Ed Blum and his Project on Fair Representation, brought us the demise of a key provision of the Voting Rights Act in the Supreme Court’s Shelby County v. Holder case and continued attacks on affirmative action in the second coming of the Fisher case. But the theory the Evenwel plaintiffs pursue is anything but conservative: it is about taking power away from the states and having the Supreme Court overturn precedent by imposing through judicial fiat a one-size-fits-all version of democratic theory unsupported by the text of the Constitution or historical practice. Evenwel should be seen for what it is: not a conservative case but an attempted Republican power grab in Texas and other jurisdictions with large Latino populations.
The plaintiffs in Evenwel are asking the Court to require states to draw their legislative district lines by dividing up only voters, rather than considering the total population in each district. Lyle Denniston has thoroughly explained the background of this case: the Supreme Court first imposed the “one person, one vote” rule in cases in the 1960s, basing the requirement for states on the Constitution’s Equal Protection Clause; the Court did not specify in those early cases whether states must use total population, total number of voters, or some other measure in drawing roughly equal districts; and the Court in the 1966 case Burns v. Richardson approved Hawaii’s use of total registered voters rather than total population, saying that the issue of what to use as the denominator in drawing equal districts resided in the states.
As the Court wrote in Burns, “The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” Since Burns, lower courts have consistently refused to require states to choose one method of achieving equality over others. The question of the proper denominator is a fascinating and controversial one, but it is one that the courts have left for each state to sort out rather than to be imposed by the judiciary.
Blum first tried to get the Supreme Court interested in this issue in the 2001 case of Chen v. City of Houston. The Court declined to hear the case, with Justice Clarence Thomas writing a dissent from the denial of a writ of certiorari saying the issue deserved a fuller airing. Blum succeeded this time in the Evenwel case, probably because he got the case to come up on the Court’s rare mandatory appellate jurisdiction. (When a case comes up this way, as opposed to through a cert. petition, a decision for the Court not to hear the case is generally treated as a binding precedent.)
The case to judicially require a “total voter” standard is not a conservative one. To begin with, the issue appears to have been settled since the 1960s in the Burns case, and the Evenwel plaintiffs offer no reason for the precedent to be overturned. In Burns, the Court specifically considered whether the judiciary was the body to adopt a single standard for putting “one person, one vote” into practice and it declined to do so.
Even more importantly, as Derek Muller points out, the Evenwel plaintiffs are mounting a direct attack on federalism: “The Court has, for once, largely left this matter to the political process to decide. But the plaintiffs have lost this political battle in Texas, so they now seek to read a newer, narrow theory of political representation into the Constitution, a stage beyond what even the Warren Court felt comfortable doing—creating an ever-more uniform political theory derived under a construction of the words ‘the equal protection of the laws.’”
And that brings us to the most fundamental way in which the Evenwel plaintiffs are not making a conservative case: they are seeking to impose a standard which is not supported by the text of the Constitution. Putting aside respect for precedent, I could see a principled conservative argument to abandon the “one person, one vote” rule entirely, on the theory that the Equal Protection Clause as it was understood at the time of the Fourteenth Amendment’s adoption does not require the drawing of equal districts at all. But Evenwel not only sees in the Constitution an equal district requirement: it sees one that is so strict as to give states no flexibility in implementing it.
Looking at the constitutional text as a whole, the Evenwel standard would be anomalous. For purposes of congressional apportionment (that is, the calculation of how many members of Congress each state receives based upon each state’s population), Section 2 of the Fourteenth Amendment requires the use of total number of persons, not voters. It seems quite odd to require counting all people for purposes of dividing up representation among the states but not for drawing districts within each state.
The conservative case for a single standard also would take the Court far from its constitutional comfort zone. As Lyle Denniston notes, to adopt the Evenwel theory would require the Court to embrace a particular democratic theory. That theory would appear to be one completely unmoored from constitutional precedent, text, or practice. Further, we do not have reliable data to put the Evenwel total voter standard into practice, meaning the Supreme Court likely would have to require the federal government to change the questions asked during the Census to get the right data for Court-mandated calculations.
If I am correct that Evenwel is not motivated by conservative principles, what’s behind it? It is hard to see it as anything but a Republican power grab. As I explained at Slate, a ruling that states may not draw legislative district lines taking total population into account will benefit rural voters over urban voters, and that by extension will benefit Republicans over Democrats. Urban areas are much more likely to be filled with people who cannot vote: non-citizens (especially Latinos), released felons whose voting rights have not been restored, and children. With districts redrawn using only voters as the denominator, there will be more Republican districts. And although Evenwel involves state legislative districts, the next claim will likely be for the same principle to be applied to congressional districts, affecting the balance of power in Congress.
Evenwel is a case which should be equally disturbing for conservatives and liberals. For conservatives, it is a case which challenges existing precedent for no reason, undermines federalism concerns, and goes against constitutional text, history and practice. For liberals, the case looks like little more than a Republican power grab, seeking to have the Court take away discretion for states in an arena in which states should have some leeway in deciding on the appropriate means of equal representation. It forces states to draw districts under a court-mandated theory that those without the vote, including children, felons, and non-citizens, do not deserve representations in state legislatures.
This is the rare case where liberals and conservatives can unite behind the state of Texas. Texas has properly asked the Supreme Court to leave the “one person, one vote” question where it has resided for almost fifty years: with the states.