If the Supreme Court were a stock market, the last few years have been as a bull market in conservative constitutional theories. With a tenuous but real 5-4 conservative majority in place, advocacy groups raced to get their pet theories before the Court. In some cases—campaign finance and gun rights, for example—the race paid off, producing 5-4 wins for radical shifts of doctrine. In others (think about public-employee unions) it has not. Bull markets tempt investors into unwise wagers. History, I suspect, will so regard the appellants in Evenwel v. Abbot, the “one-person-one-vote” (OPOV) case decided Monday. In Evenwel, the Court unanimously rejected an advocacy group’s invitation to throw American politics into turmoil, and in the process to shift power from immigrants to natives, from non-whites to whites, from young people to the aging, and, by coincidence, from the Democratic to the Republican Party. The needed votes, it now appears, were never there. The Court’s decision was unanimous; equally important, the majority opinion by Justice Ruth Bader Ginsburg attracted six of the Court’s eight justices, including Chief Justice John Roberts and Justice Anthony Kennedy. Even more importantly, the six-justice majority not only decided against the conservative theory, it made it much harder for advocates to pursue the conservative theory in future cases.
Evenwel was a challenge to Texas’s scheme of districts for its state senate. That map conformed to the basic one person, one vote rule—that is, the districts were divided up so as to produce rough equality (within a deviation of 10 percent or less) of the total population within each district.
Beginning in 1962, a series of landmark cases held that states couldn’t consciously favor some kinds of voters over others. (For a good account of the old regime, see On Democracy’s Doorstep by the historian J. Douglas Smith.) The skew was toward rural districts, regarded as more virtuous than what used to be called “the mob,” meaning people in urban areas.
The language of these cases was sometimes inexact, but the basic rule was clear: within a rough 10 percent margin, districts were to be drawn on the basis of raw population—counting, that is, not only voters but those who, by age, criminal conviction, or citizenship status, could not cast ballots. In only one case did the Court permit any deviation from that principle; that case, Burns v. Richardson, approved a Hawaii map that counted only permanent residents of the state. Hawaii argued that its circumstances were unique: Because it had so many military personnel and tourists, it said, its map would be distorted by counting them. The Court approved that Hawaii map— “only because” it “produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis.”