Predicting Supreme Court rulings based on the tenor of oral arguments is notoriously hazardous, but journalists’ hunches are rewarded often enough that they keep on coming. In December, this paper averred that Evenwel v Abbott, a challenge to the way the states draw legislative districts, was a close call that would turn on Justice Anthony Kennedy’s vote. Slate’s Dahlia Lithwick, one of the savviest Supreme Court journalists, also came away from the hearing thinking “it’s clear that…the justices will likely break along the usual partisan lines”. So it was a surprise last week when the eight justices—from Sonia Sotomayor on the left to Clarence Thomas on the right—voted unanimously to turn back a complaint about line-drawing that would have strengthened Republican gerrymandering efforts across the country.
The case was brought by Sue Evenwel and Edward Pfenniger, two Texas residents who charged that their state’s senate district map was watering down their votes. Ms Evenwel and Mr Pfenniger live in rural districts where most people are eligible to vote, in contrast to other Texas districts that are home to more children, ex-felons and non-citizens—people who do not enjoy the franchise. It isn’t fair that these non-voters are counted in sketching out the districts, the plaintiffs argued; the equal-protection clause of the 14th Amendment requires balancing the population of eligible voters from district to district, rather than the total population. Though unmentioned in the pleadings, a poorly veiled ideological concern lurked in the background (and in the intentions of Edward Blum, the conservative activist whose organisation, Project on Fair Representation, crafted the litigation): urban districts with higher concentrations of people who are not eligible to vote usually go for Democrats, while the rural districts vote rather reliably for the GOP. With a decision in their favour, Ms Evenwel and Mr Pfenniger would have paved the way for electoral maps that would blow wind in the sails of GOP candidates.
Here’s how the challengers tried to skew the political weathervane. In Reynolds v Sims, a landmark case at the Supreme Court in 1964, the justices ruled that “an individual’s right to vote for state legislators 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”. When drawing legislative lines, the court announced, the principle of “one person, one vote” must be honoured. In light of this directive, the Evenwel plaintiffs contended, a procedure that counts everybody rather than the voting-eligible population amounts to a “massive and arbitrary malapportionment of eligible voters [that] is patently unconstitutional”.