A unanimous Supreme Court in Evenwel v. Abbott (with two Justices (Thomas and Alito) concurring in the judgment) has rejected the argument that states must draw district lines so as to equalize the total number of voters (as opposed to total population) in redistricting. A contrary ruling would have shifted power to Republican, rural districts, and away from Democratic urban areas (because non-citizens and children, especially in Latino areas in states such as Texas would be in Democratic areas). Most importantly, in a big victory for the federal government’s position in the litigation, the Court did not say that a state can simply choose between doing total population or total voters in how district lines are drawn. Some expected that if the Court gave Texas the green light to choose, as Texas argued it had the right to do in this litigation, then in the next round of redistricting, it would have done so in order to increase the number of Republican districts in the state.
Justice Ginsburg wrote the opinion for the Court, and it is clear (as I had been saying) that Justice Scalia’s death did not affect the outcome of this case. It was clear from the oral argument that, despite what some said, this was not a case where the Court was likely to divide 4-4. Ed Blum’s position in this case to require voter population was not only at odds with historical practice, it was not practically possible given the data that we have, and it would have led to terrible outcomes, including making it basically impossible to also comply with Voting Rights Act requirements for districts.
Justice Ginsburg’s opinion holds that districting using total population was consistent with constitutional history, the Court’s own decisions, and longstanding practice. A long section of Justice Ginsburg’s opinion recounts constitutional history, and relies on the fact that for purposes of apportioning Congressional seats among states, total population, not total voters, must be used. Plaintiffs’ argument in Evenwel was inconsistent with this practice. As to the Court’s own precedents, Justice Ginsburg acknowledged language supporting both total voters and total population as possible bases, but Court’s practice has been to look at total population in its cases. Further, that is the practice that states uniformly use, despite the occasional case such as Burns v. Richardson, allowing Hawaii to use a registered voter level.
Finally, Justice Ginsburg gives a sound policy reason for a total population rule. In key language, she writes that “Nonvoters have an important stake in many policy debates—children,, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.” A footnote following this states that even though constituents “have no constitutional right to equal access to the their elected representatives,” a state “certainly has an interest in taking reasonable, nondiscriminatory steps to facilitate access for all its residents.”
Perhaps the most important aspect of Justice Ginsburg’s opinion, and especially notable because it attracted the votes of not just the liberals but also Chief Justice Roberts and Justice Kennedy, is the Court’s refusal to give Texas the green light to use total voters if it wants in the next round of redistricting. The Court simply put the issue off for another day. It is hard to stress enough what a victory this is for liberal supporters of voting rights. Many of us thought Burns already gave Texas this power. The fact that the Court leaves that issue open will serve as a deterrent for states like Texas to try to use total voters in the next round of redistricting, because it will guarantee major litigation on the question.
One notable aspect of Justice Ginsburg’s opinion is that it seeks to provide some clarity about when perfect equality is required and when it is not. Interesting, the Court ignores the Tennant case, which seemed to allow some deviation from perfect equality even in Congressional district cases, and seems to restore a 10% safe harbor for state and local redistricting. (See pages 3-4.) As Derek Muller points out on Twitter, this is a bad sign for the plaintiffs in the pending Harris case from Arizona, although the Court could still hold that the 10% safe harbor does not apply when there is proof of partisan motive in deviating from perfect equality.
The concurring opinions coming from Justices Thomas and Alito are not surprising. Years earlier, Thomas dissented from the Court’s refusal to hear an earlier case on this question. Back when Alito applied to work at the Justice Department, he mentioned in his application his disagreement with the Warren Court one person, one vote cases. Justice Thomas, quite radically given the last 50 years, suggests there is no basis for a one person, one vote principle at all. This strikes me, as I’ve written, as a sound conservative argument, unlike Ed Blum’s argument in Evenwel which would have restricted states even further in their choice of one person, one vote rules. I suspect that Justice Scalia could have concurred in Justice Thomas’s opinion.
Justice Alito does not go as far as Justice Thomas. Relying heavily on historical analysis, he would hold that a state can use total population, but casts serious doubts on the question (not reached by the majority) as to whether it must. He says the question whether a state could use some other measure “is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.”
This was never a close case, as judged by the unanimous rejection of Ed Blum’s position in this case. So why did the Court take it? As I’ve suggested in my forthcoming Stanford Law Review piece, the Court likely took this case for a purely technical reason: Ed Blum managed to maneuver it to come before a three judge district court with direct appeal to the Supreme Court. In those cases, a decision by the Court not to hear the case and to simply affirm is treated as a judgment that the Supreme Court agrees with the lower court result (though not necessarily its reasoning). The Chief Justice and others have said they feel compulsion to take these cases, as they are often reluctant to endorse a result without a full examination.
It might be said that liberals dodged a bullet. But as I’ve said since the beginning, this bullet was never close to hitting its victim.
This post has been updated.