“Evenwel and the Next Case”

Dan Tokaji:

Although I’m generally loath to predict outcomes, I expect the Court to reject the appellants’ argument that the Constitution requires equalization of eligible voters among districts. Buthow it rejects this argument is very much up in the air. If Evenwel relies mainly on the principle of representational equality, it will tend to preserve the status quo in which state legislative districts are drawn based on total population. On the other hand, if the Court relies primarily on federalism, it will invite states to stop counting children, non-citizens, and other non-voters when drawing districts. Blue states will surely continue to draw districts based on total population, but we can expect red states to choose a narrower metric, one that diminishes the voting strength of minority communities and others with large non-voting populations. Those states might not even wait until the next census, given that the Court opened the door to mid-decade redistricting in another case from Texas, LULAC v. Perry.

In sum, the issue before the Court in Evenwel is less difficult than the question whether states must equalize total population in drawing legislative districts. But Evenwel is still very important, because what the Court says in this case will affect, if not determine, the result of the next case. The decision will also affect how states – especially those controlled by Republicans – will draw districts after the 2020 census, and possibly whether they’ll redraw their current districts before then.

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