In my contribution to the SCOTUS blog Symposium in this case, I provide reasons that the Court is unlikely, in my view, to accept the appellants’ position.  But that is not the end of the case.  The more interesting question is whether the Court will decide that the Constitution forbids states from basing districts on eligible voters lone and requires that total population be used (as, in fact, has been existing practice for several decades).  Here is part of what I say about whether states are free to pick and choose between “voter equality” or “representational equality” in designing districts:

Remarkably, the Court has only focused on this substantive question at all in one case, Burns v. Richardson (1966), decided at the dawn of the reapportionment revolution; Burns concluded states could make either choice. Now that the issue is back before the Court nearly fifty years later, the jurisprudential issue is whether all the developments in redistricting and voting-rights law in those intervening years should lead the Court to conclude that equal protection requires a uniform understanding concerning the correct population measure that must be used. (My co-authored casebook, The Law of Democracy, asks whether “Burns survives the subsequent development of voting rights law.”) If the Court does conclude that a uniform understanding of “equality” is required, the most likely outcome is representational equality – equality of the total number of persons across districts.

The argument for a uniform understanding of “equality” is strong, as a matter of both constitutional principle and pragmatic judicial implementation of the Constitution. In the apportionment cases, the Court has spoken eloquently many times about the importance of political equality in designing districts – but equality of whom, people or voters?   If the basic principle is of such constitutional magnitude, there is much force to the conclusion that the Court has an obligation to specify equality of whom, or equality with respect to what value or principle. The choice between electoral equality and representational quality is not a fine-grained technical detail of how to implement the Equal Protection Clause. That choice is a fundamental, categorical one about the essential interpretation and meaning of equal protection in the context of designing our basic democratic institutions. Does the clause require that all persons in a jurisdiction (non-eligible voters as well as voters) have roughly equal political representation? Or does it require that all eligible voters have a roughly equal voting power? Those are fundamentally different-in-kind understandings of equal protection that flow from the Court’s “one person, one vote” jurisprudence – precisely the kind of question, in other contexts, to which the Court would provide the answer.

The reason the Court gave in Burns for leaving this choice instead to state discretion was that the decision of which groups to include in the baseline for districting “involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” But in the context of the Reapportionment Cases, this explanation is off-key. After all, it was the vehement position of the dissenting Justices in these cases, such as Justices Harlan and Frankfurter, that the Court should not get involved in these issues at all because to get involved was to require the Court to choose among competing theories of political representation.

The Court crossed that Rubicon when it decided that equal protection did not permit representation to be based on geographic units, such as towns and counties, and did require it to be based on equal numbers of sentient beings (people or voters). Having completely redefined the basis of political representation the Constitution requires, the Court’s reticence about not wanting to choose between competing theories of representation when it comes to voters or people rings hollow. Instead, Burns reads like a tentative, interim, and transitional decision in the early stages of working out the meaning of the Reapportionment Cases. Decided only two months after argument, Burns arose with elections imminently pending and dealt with what was only an interim districting plan; in other words, the stakes were low, the need for an immediate decision pressing.

With the much fuller development of the “one person, one vote” doctrine in the fifty years since, it is not obvious the Court will be comfortable with leaving states as much discretion to choose “equality of whom” in districting. And given the intensity of today’s political conflicts over immigration, it is not difficult to imagine those politics coming to further poison redistricting, if states are free to move back and forth between using voters or persons as the measure of district equality. Given how aware the Court is of the extreme partisan polarization of our era, and how that polarization plays out already in districting, the Justices might conclude that strong pragmatic reasons further support adoption of a uniform principle concerning district “equality.”

The courts of appeals, in the three major cases raising this issue, have all explained why representational equality is the better interpretation of the principles underlying the “one person, one vote” doctrine. But all have recognized that the issue is important and the question close. In Evenwel, this issue arose for the first time in the Court’s non-discretionary appellate jurisdiction; the Court was right to take the case, rather than summarily affirm, and to give this issue the attention it deserves. Texas, as the defendant-appellee, will only ask the Court to affirm the status quo and let Texas (and other States) continue to have discretion to choose whether to create district equality between persons or voters. Texas will succeed to at least that extent, I believe. But now that the Court will be forced to confront these issues, the Court might well conclude that it has an obligation to decide whether there is a right answer to the question under the Equal Protection Clause of “equality of whom” and that the better answer is equality of political representation for all persons.