Anyone who teaches or writes about election law has one Supreme Court court case that he or she finds outrageous. For some, it is Shelby County v. Holder, the decision striking down a core provision of the Voting Rights Act. For others, it is Citizens United v. FEC, which struck down regulations of election-related spending by corporations and unions. If the Supreme Court sides with the appellants who seek to redefine the “one person, one vote” rule so that districts may be drawn only around eligible voters, mine will be Evenwel v. Abbott. The case will not receive the attention of the other two, but it represents all that is wrong with constitutional litigation around election law — in particular, the effort to use the courts to achieve anti-minority outcomes that even the majoritarian political process would not tolerate.
As a preliminary matter, the case offends my sensibilities as a data-obsessed, court-appointed redistricting expert. Evenwel argues that the Constitution requires states to draw voting districts to hold equal numbers of eligible voters rather than equal numbers of people. Most would find that principle unobjectionable enough, until one realizes no national (or even state-specific) list of eligible voters exists.
The United States does not even have an address list for U.S. citizens that might be usable for redistricting, let alone one curated to deal with other ineligible voters such as prisoners, felons or those disenfranchised because of mental disability. The decennial census does not include a citizenship question, as many might be surprised to learn. All the census provides are annual survey results from 2.5 percent of American households and multi-year averages of those surveys, both of which will usually be too stale to be of use by the time redistricting comes around every 10 years.