In a Scotus blog contribution to a Symposium on the Evenwel case shortly after the Court took the case, I suggested that the most interesting question in the case was actually whether the Court would engage the issue of whether the Constitution should be understood to require that States use total population as the metric for one-person, one-vote purposes. That issue might fairly be considered within the scope of the Question Presented, given how closely bound up it is with the question of what the proper baseline is for determining compliance with one-vote, one-person for state and local election districts. At least three amicus briefs do indeed press the position that the Fourteenth Amendment should be understood to require total population as the standard for state and local districts, as it is for congressional districts (look for the amicus briefs, here, for Common Cause, for the County and City of Los Angeles and other major urban areas, and for the DNC). But none of these amici asked the Court for argument time to address this issue.
The United States, which will argue as an amicus, comes very close to endorsing this position, but does not push the Court to address the issue. The United States devotes five pages of its brief to laying out the central reasons total population ought to be the constitutional baseline. Thus, the United States argues:
Adopting Texas’s hypothetical approach risks rendering residents of this country who are ineligible, unwilling, or unable to vote as invisible or irrelevant to our system of representative democracy. But this Court has recognized in a variety of contexts that elected officials are responsible to the popular will and represent their entire constituency, including those who do not vote. . . Equalizing total population across legislative districts ensures that our system of representative government provides equal representation to all people.
Similarly, the United States argues that a requirement that States use total population in districting would protect against at least one form of gerrymandering:
Allowing States to choose which populations to equalize for Equal Protection analysis would have other unfortunate consequences. It would, for example, exacerbate existing redistricting problems—problems this Court has recognized—by multiplying the opportunities for gerrymandering and other political gamesmanship that entrenches incumbents and excludes particular groups from full participation in the political process.
But the United States stops just short of urging the Court to require States to use total population. Instead, the United States suggests the Court need not reach this question in order to uphold the redistricting plan at issue. But Texas does urge the Court to go beyond just upholding this plan; Texas presses the Court to declare that it would be constitutional for Texas also to redistrict based on equalizing some (unspecified) measure of voter population, rather than total persons. Texas, in other words, asks the Court to resolve not just this case, but to determine the general constitutional standard that governs State redistricting.
Given the importance of the Court clarifying the fundamental principle of what one-vote, one-person means, it is unfortunate that none of the lawyers before the Court will be directly arguing that States are required to equalize total populations across districts. From the perspective of judicial minimalism, the Court could indeed simply uphold the plan at issue without reaching the broader issue. But given that Evenwel will force the Court to think carefully for the first time in roughly 50 years about exactly what has to be equalized for purposes of one-person, one-vote, there would be considerable benefit to redistricting authorities throughout the country, in this highly charged area, for the Court to provide clear guidance about an issue as foundational as the metric for determining whether one-vote, one-person has been complied with. In the absence of any counsel appearing for the purposes of arguing that the baseline should be total population, it will be interesting to see whether any of the Justices press this issue.