In a surprise move, the Supreme Court agreed to hear an appeal from a three judge court in Evenwel v. Abbott, a one-person, one vote case involving the counting of non-citizens in the creation of electoral districts. Ed Blum, the force behind the Fisher anti-affirmative action case and the Shelby County case striking down a key portion of the Voting Rights Act is also behind this case. The question involves whether Texas can draw districts using total population rather than total voters, an issue especially important given non-citizen Latinos living in parts of Texas. The claim is that representatives from these areas with non-citizens get too much moving power. A ruling in favor of the challengers would be a boost for areas with fewer numbers of non-citizens living there.The Court w

The question presented in the jurisdictional statement is:

In Reynolds v. Sims, 377 U.S. 533 (1964), this Court held that the Equal Protection Clause of the Fourteenth Amendment includes a “one-person, one-vote” principle. This principle requires that, “when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of offi cials.” Hadley v. Junior Coll. Dist. of Metro. Kansas City, Mo., 397 U.S. 50, 56 (1970). In 2013, the Texas Legislature enacted a State Senate map creating districts that, while roughly equal in terms of total population, grossly malapportioned voters. Appellants, who live in Senate districts significantly overpopulated with voters, brought a one-person, onevote challenge, which the three-judge district court below dismissed for failure to state a claim. The district court held that Appellants’ constitutional challenge is a judicially unreviewable political question. The question presented is whether the “one-person, one-vote” principle of the Fourteenth Amendment creates a judicially enforceable right ensuring that the districting process does not deny voters an equal vote.

Here was Texas’s response in its motion to dismiss or affirm:

The district court correctly dismissed plaintiffs’ lawsuit for failure to state a claim. This appeal should be dismissed for lack of an unsettled substantial federal question, or the judgment should be summarily affirmed. Plaintiffs cite no case in which a court has accepted their claim that the Constitution compels States to apportion their legislative districts based on voter population, as opposed to or in addition to total population. And multiple precedents from this Court confirm that total population is a permissible apportionment base under the Equal Protection Clause. Nothing in this case warrants a different result.

The Court will hear the case next term, meaning that there are likely to be questions about the propriety of Texas’s redistricting for nearly the entire 10 years of its redistricting plan. (A Voting Rights Act section 2 claim remains pending before a separate three-judge-court in San Antonio).

Like Texas, I had considered the issue fairly settled by the Supreme Court that states have the power to decide whether to use total population or another measure for drawing district lines.  That’s not to say that the one person, one vote concept was clear. Scholars including Sandy Levinson and Joey Fishkin had raised interesting conceptual questions about it.

Of course, if we count only voters for districting, that leaves out not just non-citizens, but also children and felons and those mentally incompetent who have had their voting rights taken away.

It is interesting to have a conservative arguing against Texas that states should have less power to decide how to draw districts.

Here is the press release from Blum’s group:

Today, the US Supreme Court announced it will take up for argument next term Evenwel v. Abbott, a challenge to the constitutionality of the Texas Senate redistricting plan that was enacted into law in 2013.

 

Two Texas voters, Sue Evenwel and Ed Pfenninger, brought this lawsuit asserting that their senate districts were malapportioned because there are a significantly higher number of eligible voters in their districts than in many other districts. This imbalance resulted in a violation of the “one-person, one-vote” constitutional tenet.

In each of the 31 senate districts in Texas there are about 811,000 people, but there are wild disparities in the number of people per district who actually have the legal right to cast a ballot.

 

Specifically, in Sue Evenwel’s mostly rural district, about 584,000 citizens are eligible to vote. In a neighboring urban district, only 372,000 citizens are eligible. As a result, voters in the urban district have more sway than in the rural district; their individual electoral preferences carry more weight.

 

Sue Evenwel and Ed Pfenninger jointly said, “We are grateful that the justices on the Supreme Court have agreed to hear our case. It is to be hoped that the outcome of our lawsuit will compel Texas to equalize the number of eligible voters in each district.”

 

The Project on Fair Representation, a legal defense foundation based in Austin, Texas, has provided counsel to the plaintiffs. Attorneys for POFR are William Consovoy, Tom McCarthy, and Michael Connolly of Consovoy McCarthy PLLC in Arlington, Virginia.

 

Edward Blum, president of POFR said, “This case presents the Court with the opportunity to restore the important principle of one-person, one-vote to the citizens of Texas and elsewhere.”

 

The Project on Fair Representation has provided counsel in a number of landmark Supreme Court cases including Northwest Austin Municipal Utility Dist. No. One v. Holder, Abigail Fisher v. Univ. of Texas and Shelby County, Ala. v. Holder.

[This post has been updated.]