At the Supreme Court on Tuesday, the justices struggled over the meaning of the 1960s-era “one person, one vote” rule. Should Texas legislative districts contain an equal number of people — as they do now — or an equal number of eligible voters, as the plaintiffs in Evenwel vs. Abbott demand? Ultimately, the justices may have no choice but to heed some other words written in the 1960s: You can’t always get what you want. Before the 1960s and the “reapportionment revolution,” there were few federal constitutional constraints on how district lines were drawn. In practice, this meant that many states gave much greater voting power to rural areas (with much smaller populations) than urban areas. In California, for example, as J. Douglas Smith explained in his book “On Democracy’s Doorstep,” despite huge increases in the state’s urban population, control of the Senate “remained in the hands of a shrinking rural and small-town minority.”
In Baker vs. Carr, the Supreme Court opened the courthouse doors to so-called malapportionment claims. And in a series of related cases, most famously Reynolds vs. Sims, it held that grossly malapportioned districts violated the guarantees of the Constitution, in particular the 14th Amendment’s Equal Protection Clause. Chief Justice Earl Warren later called Baker “the most vital decision” during his time on the court.
Ultimately, the justices may have no choice but to heed some other words written in the 1960s: You can’t always get what you want. But the court never fully explained exactly what needed to be equalized — voters, people or something else. It has approved numerous district plans drawn using total population as the relevant denominator. On the other hand, the court strongly suggested in Burns vs. Richardson that a state has discretion to use something other than total population, at least when the standard is not too divergent from total population.
The issue is back before the court in Evenwel, after the court passed up numerous opportunities throughout the years to clarify the standard. In states with large noncitizen populations, especially Texas and California with many Latino immigrants, a ruling in favor of the challengers would shift political power from urban, Democratic areas to rural Republican ones. (Cities have lots of people but not necessarily lots of eligible voters.)