The Supreme Court agreed to take a case this week that will shape the future of American politics. Although the Warren court’s famous “one person, one vote” mandate requires states to draw up election districts with roughly equal populations, the court is only now going to determine the relevant population that must be counted. It has two basic options. It can stick with what most states do now and require each district to contain an equal number of inhabitants: This will favor urban Democratic areas with many immigrants and children. Or it can instead insist that districts include an equal number of eligible voters, and thereby favor rural Republican regions. While the new case, Evenwel vs. Abbott, deals with state and local districting, its logic will predictably control reapportionment for the House of Representatives in 2020, with major consequences for states such as California, New York and Texas.
Given the stakes, the justices must make every effort to avoid a repeat of recent split decisions, in which five Republican appointees join against four Democratic appointees on crucial electoral issues. Their party-line decisions on campaign finance and minority voting rights have damaged the court’s credibility as an impartial defender of the democratic process. Another partisan spectacle would be especially regrettable when the Constitution speaks to the issue with remarkable clarity.
The decisive provision is Section 2 of the 14th Amendment — which follows up on the first section’s guarantee of “equal protection” with specific instructions on the basic problem confronting the Roberts court. Although Section 2 is relatively unknown today, it was of central importance to the Framers during Reconstruction. It declares that seats in the House of Representatives, and electoral votes for the presidency, “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”