Evenwel: Misguided Hysteria, Done With

Immediately after the Court agreed to hear the Evenwel case, I posted an essay on the Supreme Court blog arguing that the extreme overreactions that were already emerging over the Court’s decision to address this issue from journalists and some academic commentators were deeply misguided.  As I argued then, the Court was right to take the case, to address these long unresolved issues, and when the Court did so, I thought there was little doubt the Court would continue to permit states to use total population for districting.

Today’s decision fully vindicates those views.  The Court unanimously upheld the authority of states to use total population.  In addition, a six-member majority went out of its way to make clear that the question remains fully open whether states might be required to use population, rather than eligible voters.  As the text of the majority opinion says in its final paragraphs:”Because history, precedent, and practice suffice to reveal the infirmity of appel-lants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.”

The only hard question in this case, as I’ve said throughout, is whether the Court should conclude that the total population standard is not just permitted, but required. I was glad to see the Court made clear that that is a question that is left open for another day, should the issue ever actually arise — as it would if a jurisdiction ever did decide to use eligible voters as the baseline and doing so caused significant deviations from equality based on population.

All in all, an overwhelming consensus in the Court for the straightforward resolution of the issue, despite the wildly exaggerated fears that had been stoked up about this case.


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