That’s the title of the essay I wrote, shortly after the Court agreed to hear this case, for the Supreme Court blog.  Nothing in the briefing has changed my conclusion about that, though I expect lots of tough questions for both Texas and the United States (and the appellants).  I had hoped the Court would address whether the Constitution requires that districting be based on total population, but as I noted at this later posting on this blog, none of the lawyers before the Court will be arguing that position.  The United States comes close to doing so, but encourages the Court to avoid the issue.  Without any of the parties pressing the Court to reach the question, it is less likely the Court will resolve this important question.

Here is the beginning of the Supreme Court blog contribution arguing that the Court was right to take on the Evenwel case, even though the most likely outcome is a reaffirmation of the status quo:

As soon as the Court decided to hear Evenwel, a barely suppressed anger emerged in many quarters, on grounds of both process and substance. On process: how dare the Court address this issue, when a 1966 precedent seemingly settled the issue, and no conflict existed in the lower courts, to boot. On substance: how disturbing for the Court to consider any change in the legal status quo, in which states are perfectly free to define the “one person, one vote” baseline (total population or eligible voters) for themselves. But on both process and substance, these complaints and anxieties are misplaced and misguided.

The Court is right to confront this issue. And more importantly, the most likely outcome is that the Court will either re-affirm the status quo or conclude that equal protection requires states to use population, not voters, as the measure of political equality – a possibility almost none of the commentary, thus far, seems to recognize.

Let’s start with the substantive issue. The issue is whether “one person, one vote” is a principle of “representational equality” or one of “electoral equality.” Once the Court fully grapples with the issue, I consider it extremely unlikely a majority will conclude that the constitutional metric must be voters. Four reasons of principle and practicality, at least, lead to this conclusion.

If you’re interested in those reasons, see here.