On Tuesday, the Supreme Court will hear argument in Evenwel v. Abbott. The subject of the case is the meaning of the “one person, one vote” rule. The appellants argue that the Constitution requires equality of eligible voters among legislative districts. This argument is unlikely to carry the day – in fact, the appellants may well lose unanimously. Evenwel is still an important case, however, because what the Court says will affect how states draw state legislative districts after the next census and possibly even sooner. The hard question isn’t the disposition of Evenwel but rather its implications for the next case. The “one person, one vote” rule requires that legislative districts be drawn on the basis of population. Where single-member districts are used, each district must be of approximately equal population. In Reynolds v. Sims, the Supreme Court held that the “one person, one vote” rules applies to state legislative districting. This ended the states’ practice of using districts with very different populations – some with disparities over 40:1 – which generally advantaged rural areas at the expense of urban and suburban areas.
Reynolds left open the population metric that states can or should use when drawing districts. There are several possible choices. The broadest measure is total population. That’s what Texas uses in drawing its 31 state senate districts, giving each one approximately the same number of people. Total population is also the metric used in the other 49 states, according to the United States’ amicus brief. A narrower basis for drawing districts is the U.S. citizen population (excluding non-citizens). An even narrower metric is the citizen voting age population (excluding those under 18) or, narrower still, the citizen voting eligible population (excluding people ineligible to vote due to felonies or mental incapacity). Counting only eligible voters would have a negative impact on the representation of racial minorities and other communities with large numbers of children, non-citizens, and other non-voters.
The Evenwel appellants argue that the states are prohibited from doing what all of them now do: using total population as the basis for drawing districts. The Court isn’t likely to agree. There are good reasons for using total population as the basis for redistricting, as Rick Pildes has explained. In addition to the fact that it’s the norm among states, using total population ensures that everyone – including children, non-citizens, and others who can’t vote – are equally represented. Furthermore, Article I, Section 2 of the Constitution requires that all “persons” (including those ineligible to vote) be counted in apportioning U.S. House representatives among the states. It would be anomalous at once to require that non-voters be counted for congressional apportionment and to forbid non-voters from being counted for state legislative districting.
Full Article: Evenwel and the Next Case | ACS.