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Is the Evenwel decision the last word on “one person one vote”?

Maybe not.

With a long-running legal struggle raging over one of the nation’s strictest voter identification laws, Texas was already a prime battleground in a war between conservatives and liberals over voting rights. And on Monday, experts here and elsewhere say, the Supreme Court may have opened a second front.

The court said unanimously that the state could take into account all of its 27 million residents when it carves its territory into voting districts for the State Senate, regardless of whether they can vote in elections. It was a setback for conservatives who want to limit that redistricting population to eligible voters, and a resounding affirmation of the one-person-one-vote principle that has governed most redistricting nationwide for decades.

But it was probably not the final word because the court was silent on whether any other population formula could be used to draw new voting districts. And within hours, advocates on both sides of the issue indicated that Texas or another conservative-dominated state was bound to do just that, probably after the 2020 census triggers a new round of redistricting nationwide.

“This has been an issue that has bubbled up in the courts and in the realm of social science pretty consistently,” said Edward Blum, the president of the Project on Fair Representation, the conservative advocacy group that brought the lawsuit. He said the group would urge political officials to abandon the one-person-one-vote formula for a more limited guideline, something that almost certainly would lead to a second court battle. And the state of Texas, the defendant in the group’s lawsuit, indicated in court filings that it would prefer to have that option.

“The big case isn’t this case, but the next case,” said Daniel P. Tokaji, a professor at Ohio State’s Mortiz College of Law and an authority on elections law.

Maybe yes.

“The court went as far as it possibly could go in casting a pall on the possible idea of challenging this again with an alternative method of counting,” said Janai Nelson, associate director-counsel of the NAACP Legal Defense and Educational Fund, on a press call with reporters Monday. She and others pointed to a footnote in Ginsburg’s opinion that suggested she doubted it would even be possible to draw districts the way the challengers were advocating without ignoring other traditional redistricting principles.

“That language very firmly closes the door on the idea that trying to [use] something other than total population is a good idea,” Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund, said on the same press call.

That’s not to say that Blum and others won’t try, but their argument for why states should think they’d be allowed to do so just got a lot harder with the language in the majority opinion.

“Any state that’s thinking about doing that is going to have to think that there’s a very serious risk that they’re going to get tied up in a lot of litigation,” Sam Bagenstos, a University of Michigan law professor who previously worked in the Department of Justice’s Civil Rights Division, told TPM.

But it’s not just for legal reasons that states have largely stuck to using total population to draw their districts. As Evenwel revealed, there is an absence of data that is a reliable as the census’ total population numbers. And it’s not just Democratic-leaning minority populations that would be negatively affected. Districts with a lot of children, for instance, could also be at risk, a reality Ginsburg also nodded to in her opinion.

“There’s certainly people who will try to make the argument and see if any legislature will bite,” said Michael Li, counsel for the Brennan Center’s Democracy Program, a non-partisan organization that defends voting rights. “States really have chosen to do total population for a lot of good reasons, both the political consequences and that the data is much much better.”

See here for the background. I don’t expect a zealot like Edward Blum to go away – this is his life’s work – but the commentary I read after the decision was handed down suggests it won’t be easy. A state would have to draw a Blum-style map and then defend it in court. If they took that route, the key question would be whether their Blum map would be stopped by the courts while the litigation was ongoing, or would they get to use something like it as has been the case with the 2011/2013 maps? In that case, there’s much to be gained and little to lose, but if not you could wind up spending a ton on litigation and in the worst case having the door permanently slammed on this approach. Check back in 2021 and we’ll see if Texas or some other state takes up the challenge.

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3 Comments

  1. mollusk says:

    There’s no reason for the wingnuts to wait until 2021. The DeLay redistricting opened up the door to moving things around between censuses.

    There might even be some reason to hope for that. No matter what, the disenfranchisers are going to insist on wasting money drawing districts that will never go into effect – why not do it when there is already a set that’s passed muster in place?

  2. Frank says:

    We already had something besides one-person, one-vote in the US: it was called the County Unit System in Georgia and the Supreme Court dismantled it.

  3. Mainstream says:

    Even today, we don’t really have one person, one vote. Some state senates have as much as 30% variation in total population, because they use whole counties and are rural states. Beaumont disregards prison populations in drawing their local districts. The city of Sumter, South Carolina rather than disregarding the population living in Shaw Air Force Base within their limits, managed to carve the base up into little sections and assign one section to each of the regular city council districts, in order to keep their districts total population equal.

    If CVAP data can be improved, I would expect several states to use such data in 2021 to draw their new districts. The issue Evenwell highlighted is that here in Texas, non-voters are not evenly distributed and so certain politicians get “cheap seats” at the table without having to appeal to as many voters as the others sitting at the table. The cheapest seats in our area are probably the city council and state house districts which include large portions of Gulfton.

    I imagine about a third of the adult citizen population could elect a majority of the City Council district seats in our community.