Sue Evenwel lives in Mount Pleasant, Texas, a town east of Dallas with a population of approximately fifteen thousand. Mount Pleasant is part of the state senate’s District 1, which has just over 800,000 residents – 584,000 of whom are registered voters. By contrast, although a more urban district near Evenwel has a roughly equal population, it has only 372,000 registered voters. Because there are more eligible voters in her district, Evenwel contends, her vote is diluted – that is, it takes more voters to decide the election in her district, and so her vote doesn’t count as much. Evenwel and another Texas voter, Ed Pfenninger, allege that this kind of vote dilution violates the principle of “one person, one vote.”
This morning the Supreme Court heard oral arguments in Evenwel and Pfenninger’s case. In 1964, in a case called Reynolds v. Sims, the Court held that districts for a state legislature must contain near equal numbers of people – the principle of “one person, one vote.” What the Court did not say then, and has not said in the nearly fifty years since, is what measure should be used to determine whether state legislative districts have equal populations: do you look at total population, or do you look at the number of eligible voters? Evenwel and Pfenninger argue that the answer is eligible voters, and after an hour of oral arguments today it seemed possible that several of the Court’s more conservative Justices – although it isn’t clear precisely how many – agreed with them.
The state of Texas, defending the redistricting maps, seemed to have the votes of all four of the Court’s more liberal Justices. Justice Ruth Bader Ginsburg, for example, told attorney William Consovoy – who argued on behalf of Evenwel and Pfenninger – that the Court has said many times that, for the “one person, one vote” principle, equal representation is based on population. That has been the standard for a half-century, she emphasized, and the Court has never held otherwise. And later in the argument she reminded Consovoy that, if his rule were the correct one, women would not have been considered in redistricting until 1920, when they gained the right to vote.
Justice Sonia Sotomayor suggested that there are in fact two interests at stake in the principle of “one person, one vote”: an interest in having your vote count and an interest in having equal representation. “States have to have some discretion,” she said, to figure out who has an interest in being represented.
Justice Elena Kagan noted that, when drawing maps for federal congressional districts, “we use total population as the metric.” Why, she asked somewhat rhetorically, would the Constitution require the use of total population for federal congressional districts while at the same time prohibiting the use of total population for state legislative districts?
And Justice Stephen Breyer questioned why Consovoy and his colleagues were discussing the case as a potential violation of the government’s obligation to treat everyone equally. If you step back and look at other parts of the Constitution, he contended, “what we actually want is the kind of democracy where people, whether they choose to vote or whether they don’t choose to vote, are going to receive a proportionate representation in Congress.”
But even if Texas enjoyed the support of all four of the more liberal Justices, perhaps just as significant were the questions that weren’t asked during Consovoy’s first stint at the lectern: none of the court’s more conservative Justices asked any questions at all during that stretch, and Justice Antonin Scalia remained silent for the entire hour. And when Texas solicitor general Scott Keller took his turn before the Justices, Chief Justice John Roberts emphasized that the principle is called “one person, one vote” – which, the Chief Justice suggested, seems to be intended to protect voters.
Justice Anthony Kennedy pressed Keller to explain why the state couldn’t draw maps that had both population equality and voter equality. Keller responded that he was not sure that such a goal would actually be feasible, but in any event it would make it harder to consider other factors that are traditionally part of redistricting, such as geographic compactness and keeping communities together. It would also, he stressed, take away states’ “leeway to structure their elections,” which is “part of the core function of their sovereignty.”
Justice Samuel Alito also seemed to express at least some support for the challengers, as he described a hypothetical involving a “rural district with a huge prison and very few other inhabitants,” as well as “a neighboring district that has no prison.” If only ten percent of the population of the first district is eligible to vote, while ninety percent of the latter district is, he asked, would that be a problem?
Another hot topic during the oral argument was more practical than legal: whether the information needed to draw redistricting maps based on eligible voters even exists, or could be accurately collected. Sotomayor suggested that it could not, and both Keller and Deputy Solicitor General Ian Gershengorn, arguing on behalf of the United States in support of Texas, told the Court that there were problems with the timeliness and level of detail of the data that is collected. Consovoy countered that the data needed to draw maps based on eligible voters is adequate, as evidenced by its use in lawsuits brought under the Voting Rights Act; to prevail in those suits, Consovoy explained, a plaintiff must show that a majority of the citizen voting-age population in her district belongs to a minority group.
It’s hard to say how the Court will rule. What we do know, however, is that the repercussions of that ruling could be enormous. If the Court were to decide that states can or must rely on the number of voters, rather than total population, in redistricting, it could be a sea change in many parts of the country, shifting power from urban, Democratic-leaning areas with more children and non-citizens to more rural areas, which often skew toward the Republican Party. A decision in the case is likely sometime next year.
