The Supreme Court announced today that it will hear a case initiated by conservatives in Texas determining what "person" means for one-person, one-vote redistricting jurisprudence: all people, or just those who are eligible to vote?
The Justices’ move into the Texas Senate redistricting case comes fourteen years after Justice Clarence Thomas, in Chen v. City of Houston in May 2001, was the sole member of the Court who went on record in favor of sorting out “what measure of population should be used for determining whether the population is equally distributed among the districts.”
The usual choice considered by legislatures is to make districts more or less equal by dividing up shares of the state’s total population, or, as an alternative, to draw lines based upon some measure of the voting members of the population — such as the numbers actually registered to vote.
Two Texas voters, who wound up in state Senate districts where they say their votes will count less than the votes in another district even though each of those districts has about the same total number of people, argued that this contradicts the “one-person, one-vote” guarantee of voter equality. Their votes would have counted equally, they contended, if the legislature instead had used voting-age population as the measure.
The voters, Sue Evenwel, who lives in Titus County in Senate District 1, and Edward Pfenninger, who lives in Montgomery County in District 4, said their votes were diluted because of the disparity between the two measures as applied to those districts, where more of the people vote proportionally. Both districts are rural. Other, more urban districts have proportionally fewer registered voters, so the redistricting plan based on actual population is said to give those who do vote more weight — that is, fewer of them can control the outcome.
Why does this matter? Below the fold, some history.
Back in 1966, the Court held as follows:
Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime, in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere. Unless a choice is one the Constitution forbids, the resulting apportionment base offends no constitutional bar, and compliance with the rule established in Reynolds v. Sims is to be measured thereby.
Why does this matter?
Adam Liptak explains the import of an "its voters" standard:
Almost all state and local governments draw districts based on total population. If people who were ineligible to vote were evenly distributed, the difference between counting all people or counting only eligible voters would not matter. But demographic patterns vary widely.
If the challengers succeed, the practical consequences would be enormous, Joseph R. Fishkin, a law professor at the University of Texas at Austin wrote in 2012 in The Yale Law Journal.
It would, he said, “shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.”
Fishkin further explains:
Certain districts, such as a predominantly Hispanic city council district in Irving, Texas, have the same total population as other districts but only half the citizen voting age population (CVAP). A conservative impact litigation firm brought a lawsuit challenging that particular district in 2010, alleging that the difference in CVAP harmed the voters of the other five districts by diluting their votes. The real prize here is much larger than the government of a mid-sized Texas city....
[I]f what legislators do, in significant part, is fight for resources for their districts, and if all persons (not just all adult citizens) are to enjoy the equal protection of the laws, then it would seem to follow that each legislator ought to be responsible for bringing resources home to roughly the same number of persons. Children—and for that matter resident aliens—need roads, bridges, schools, and Teapot Museums as much as the rest of us do, if not more.
Rick Pildes:
[A]s long as the baseline remains constitutionally undefined, states can manipulate the districting system by choosing one baseline over another in order to achieve various partisan or political ends. The difference can be significant, especially in areas of the country — such as Texas, where this case comes from — with large numbers of non-citizen residents.
In addition, since Burns, we have had the emergence of the Voting Rights Act requirements concerning how districts must be designed to avoid diluting the vote of particular minority groups. To ensure political equality in this arena, the baseline for drawing districts has been voters — not residents. Thus, to decide whether a district provides an “equality opportunity to elect” for minority voters, the courts do not look at the total number of minority residents — they look to the total number of voting-age eligible residents. So there is at least some superficial tension between the VRA, where voters are the baseline, and the Equal Protection standard, where most states use population as the baseline. That provides another reason the Court might want to clarify what the right baseline is under the Equal Protection Clause.
Now that the issue is squarely before the Court, my view is that the Court ought to adopt a clear, uniform standard to end uncertainty and potential manipulation regarding what counts as the baseline for the requirement of equality between election districts.
The case will be argued in the fall. See also
phenry's diary.
