When the Supreme Court of the United States resumes its agenda next week, it will find its docket full of cases that could have profound implications for the country. One of these is Evenwel v. Abbot – and the outcome could have a major impact on the upcoming elections.
At the heart of this case is the principle of “one person, one vote.” In other words, no single citizen’s vote should have more weight than that of another. Therefore, according to a 1964 SCOTUS ruling, election districts must be drawn in such a way so that the population is evenly distributed – in other words, each electoral district must contain approximately the same number of people. In general, the number of electoral districts in a state should be evenly divided among the number of residents. The SCOTUS later added that proportions need not be exact, and that slight exceptions could be made if a state had a legitimate reason.
This should seem obvious, but the devil is in the details. Specifically, does the law state that each district should be based on total population, or the number of actual registered voters? For example, if the 2nd Legislative District contains as many actual residents as the 9th – but fewer registered voters – does that give votes in the 2nd Legislative District greater weight than those from the latter? And, if so, would this be a violation of 14th Amendment’s Equal Protection Clause?
This is the question the Supreme Court will be wrestling with this term. As written, the Equal Protection Clause states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
In the present case, the defense argues that every person – voting or not – is entitled to protection under the 14th Amendment. Thus, every state legislative district is required to have approximately the same number of residents. According to this argument, 14th Amendment protection must be extended to minor children, non-residents, those whose voting registration has lapsed, or those who have lost the right to vote (e.g., prisoners).
Kathay Feng of Common Cause points out:
If the plaintiffs succeed, millions of people who live and work in our communities and pay taxes to support our schools, police, and fire departments and other important services would be denied representation in every state capitol in America simply because they are not registered to vote.
The issue surrounding Evenwel v. Abbot dates back several years. In 2007, Manuel Benavidez filed a lawsuit against the city of Irving, Texas. Although people of Hispanic descent made up over 40% of the population, there were more white registered voters. Under the “at large” system at the time, Benavidez argued that the Hispanic vote was diluted and the community was unable to elect representatives of their choosing. His proposal was to have several single-member districts, with at least one being primarily Hispanic.
Benavidez won his case, and the city implemented a modification of his proposed system. However, while the new voting districts were approximately equal in terms of population, they did not all contain equal numbers of voters. This had the effect of giving districts with fewer registered voters greater power. According to the complaint, this violated the Equal Protection Clause. The Texas North District Court ruled in favor of the city, and the case went to the US Court of Appeals. The appellate court upheld the lower court’s decision. The case was then appealed to the SCOTUS in 2012, which declined to hear the case. It wasn’t the first time; in 2001, a similar case, Chen v. City of Houston, was also rejected by the majority. However, Justice Clarence Thomas pointed out that the law, as it stood, was vague as to exactly what was meant by “one person, one vote”:
The one-person-one-vote principle may, in the end, be of little consequence if we decide that each jurisdiction can choose its own measure of population. But as long as we sustain the one-person-one-vote principle, we have an obligation to explain to states and localities what it actually means.
So…if the earlier cases were upheld by lower courts and the SCOTUS didn’t want to hear them back then, why have they taken on this one? Here is one possible explanation, according to Adam Liptak, writing in the New York Times:
Counting all people amplifies the voting power of places with large numbers of residents who cannot vote legally, including immigrants who are here legally but are not citizens, illegal immigrants, children and prisoners. Those places tend to be urban and to vote Democratic.
Attorneys and legal scholars specializing in election law believe that, regardless of which way the SCOTUS ruling goes, it will have little impact on the number of legislative districts or their boundaries in affected states. The 14th Amendment is clear on this issue:
Representatives 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.
Furthermore, redistricting in most states will not happen until after the next census, which does not take place until 2020. Nonetheless, this case comes before the SCOTUS at a time during which both jurists and legislators increasingly recognize that gerrymandering and partisan redistricting has been a big factor in creating legislative deadlock and divisions between the two major parties over the past several years. This past year, the SCOTUS has made rulings in two cases involving gerrymandering – one in Arizona and the other in Florida – that go a long way toward ending the practice. If those decisions are any indication, there is reason for hope that at least five of the nine justices will rule in the best interests of the country.
