Regular readers of ELB know that I’m often sounding the alarm about Supreme Court cases with the potential to hurt our democracy. For example, I recently wrote of big procedural victory for campaign finance opponents which makes it fairly likely the Supreme Court will strike down the soft money provisions of the McCain-Feingold law within a few years. Indeed, in a current draft which I’ll be presenting at a Stanford Law Review symposium in February, I ask the question why the Roberts Court, despite cases such as Citizens United and Shelby County, has not moved even further to the right as I had predicted when the Roberts Court began in 2006.
So I’m somewhat surprised myself that I am not all that worried about what the Court is going to do in the Evenwel v. Abbott one person, one vote case, being heard next week at the Supreme Court. In Evenwel, plaintiffs ask for the Court to declare that the only proper basis to fulfill the Court’s ruling cases such as Reynolds v. Sims requiring creation of equipopulous legislative districts is to draw such districts with the same number of (eligible or registered?) voters, rather than people. If the argument is successful, it would radically change the way most states conduct their elections, and it would shift power in state (and likely congressional) elections away from Democratic and Latino areas (which tend to have larger Latino non-citizen populations) and toward Republican and rural ones. Indeed, I have argued in Slate and at SCOTUSBlog that the best way to understand this lawsuit is not as a principled conservative argument, but as an attempted Republican power grab.
So why am I optimistic?
First, I don’t think the Court wanted to take this case. I’ve explained this a lot in my earlier writings on this case, so I’ll be brief here. The Court has had the chance to hear this issue a number of times, and refused. In 2001, only Justice Thomas dissented from a cert. denial where this issue was raised. But Ed Blum managed to get this case heard before a three-judge court, with direct appeal to the Supreme Court. The Court feels a much greater obligation to take these cases, because a decision not to hear the case (unlike a cert denial) is a ruling on the merits. Here’s Chief Justice Roberts speaking at oral argument in another case earlier in the term on the three judge courts:
CHIEF JUSTICE ROBERTS: I mean, the other alternative is it’s a three-judge district court, and then we have to take it on the merits. Imean, that’s aserious problem because there are a lot of cases that come up in three-judge district courts that would be the kind of case – I speak for myself, anyway– that wemight deny cert in, to let the issue percolate. And now with the three judge district court, no, we have to decide it on the merits…
So I don’t think the Court particularly wanted to take this case. And I expect only Justice Thomas, and Justice Alito, who expressed doubts about the one person one vote rule many decades ago, are likely to be in play.
Second, this issue seems like it was already settled in the 1966 case Burns v. Richardson. There, the Court approved Hawaii’s use of total registered voters rather than total population, saying that the issue of what to use as the denominator in drawing equal districts resided in the states, at least when total voters does not sway too much from total population. So precedent is on Texas’s side.
Third, it would be quite anomalous (as Chief Justice Roberts argued when he was a lawyer in the 9th Circuit Garza case), that the Constitution requires the use of total population in apportioning congressional districts among the states (that’s in the 14th Amendment) but it forbids the use of total population in drawing congressional (or state) districts within states. To the extent that the 14th Amendment is silent, certainly it would be odd to think the 14th amendment would have these two wildly different rules in these cases.
Fourth, and related to the third point, there’s no strong originalist argument for this position. It is certainly possible to take a principled conservative position that these cases should have remained non-justiciable (that is, to argue Baker v. Carr was wrong) or that the 14th amendment does not require any kind of equality in the drawing of districts (that is, to argue Reynolds and the cases which followed it are wrong), but it is not a principled conservative position to argue that the 14th amendment must be interpreted to take discretion away from the states. This argument is not trolling, as Andrew Grossman suggested. It is a recognition that it will be hard to attract conservative Justices to a position which is supported neither by originalist interpretation nor by principles of federalism.
Fifth, and perhaps most importantly: Nate Persily had made what I consider to be the ironclad case that actually putting a total voter standard into practice would be very, very difficult. We do not have good data, and we don’t come close to having good data, on voters as opposed to people in districts. Is the Court going to order that the census try collecting these data, or allow districts to be drawn based upon sample data, which is not up to date? It is hard to imagine.
OK, so I may eat my words after oral argument. But this case (unlike others) is not causing me to lose sleep at night (yet).