“Equality of representation in the legislature is a first principle of liberty,”John Adams wrote in 1776. Most Americans would agree. But does “equality of representation” mean equal numbers of people—or equal numbers of voters? That question is raised by the Court’s decision Monday to hear the case of Evenwel v. Abbott. Evenwel is a challenge to the Texas Legislature’s plan for state Senate districts. The appellants are registered voters from Senate districts that have significantly more eligible voters than some others. The legislature’s districts vary from each other in raw population by less than 10 percent; but in their “citizen voting-age population,” or CVAP, the variation can be as high as 50 percent.
In their appeal to the Court, the aggrieved voters note that “in Texas, large numbers of non-voters swell the population of certain geographic locations.” The Cato Institute, in a brief urging the Court to take the case, is more specific: Evenwel is about race and national origin. Under the current basis, the Cato brief says, “a relatively small constituency of eligible Hispanic voters … have their votes ‘over-weighted’ and ‘over-valuated,’ effectively diluting the votes of eligible voters” in districts with fewer Latinos. Latino voters thus have “disproportionate power.” Though the brief doesn’t mention this, redrawing lines on CVAP would produce districts that are older, whiter, richer, and more likely to vote Republican.
Throughout much of our history, states got to apportion their legislatures any way they wanted. But in a 1964 case called Reynolds v. Sims, the Warren Court proclaimed that “as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” The Court’s explanation, however, created a lasting confusion between population and voters; “an individual’s right to vote for state legislators,” it said, “is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.” This and later decisions spawned the shorthand phrase, “one person one vote.”