Supreme Court takes up one person, one vote case

At issue in a Texas case, to be argued Tuesday, is whether ineligible voters should count when states draw election districts – a decision that could affect political maps all over the country.

Darren Abate/Reuters/File
Supporters of Democratic presidential candidate Hillary Clinton hold up signs as they wait for her to speak at a 'Latinos for Hillary' rally in San Antonio, Texas, on Oct. 15, 2015. The growing influence of Hispanic voters could be blunted by a case coming before the US Supreme Court on Tuesday, in which two Texas voters, backed by conservative groups, are challenging the way that state draws electoral districts.

Most Americans have heard of the principle of one person, one vote. It stands for the proposition that in a representative democracy everyone gets an equal say at the ballot box.

But what most Americans probably don’t know is that one person, one vote in the United States in 2015 doesn’t necessarily mean that everyone’s vote will be given the same weight.

In practice, the relative strength of one citizen’s vote in relation to any other citizen’s vote depends on how election districts are drawn and populated. That’s because whoever is drawing the voting districts can rig the boundaries in a certain way to dilute a person’s vote in one district while enhancing voting power in another district.

It is an effective way to boost the chances that a Republican or a Democrat will win, or make it easier for minority voters to elect candidates of their choice. But does this kind of manipulation of the electorate comport with the constitutional requirement of equal protection and the principle of one person, one vote?

That’s the question at the center of a case set for oral argument at the US Supreme Court on Tuesday.

The question arises in a controversial case from Texas that could result in a substantial redrafting of voting districts across the country, particularly in Hispanic districts with large populations of noncitizens. 

In the Texas case, two voters from different voting districts are challenging the method used to set the boundaries for election to the Texas state senate. The voters charge that the election districts significantly dilute votes cast in certain districts while enhancing the voting power of those casting ballots in other districts.

Here’s how it happens. As in most states, officials in Texas relied on total population figures from the US Census as their base measure upon which to equalize the size of each of the state’s 31 senate districts.

The idea is to form election districts that contain roughly the same number of potential constituents for each elected state senator, thus guaranteeing equal representation. The problem is that not all election districts drawn in this way contain an equal number of qualified voters.

Some sections of Texas have large numbers of noncitizens, who cannot vote, as well as a high proportion of children under the age of 18, who are too young to vote. While children and noncitizens count for purposes of equal representation, their inclusion in the mapping of voting districts can sometimes serve to enhance the voting power of eligible voters in that district vis a vis other districts with a higher proportion of voting-age citizens.

What this discrepancy ultimately means is that it can take significantly fewer votes to elect a state senator in certain districts in Texas than in others.

Based on the total population in Texas, the average senate voting district should contain 811,000 residents. But that number has no relation to the total number of eligible voters in each district, which can vary substantially.

For example, the citizen voting-age population in District 1 is 570,000. In contrast, there are only 370,000 citizens of voting age in the Texas senate district with the least number of voters (District 27).

That represents a 40 percent deviation from one district to the other. Ultimately, it means that a voter in the district with fewer voting age citizens wields voting power that is one and a half times that of a voter in District 1.

All of these differences exist even though both districts are apportioned to contain roughly the same total populations.

It is the resulting discrepancy among voters that the challengers in the Texas case say violates the one person, one vote principle.

That principle was highlighted in a 1964 landmark Supreme Court decision in a case called Reynolds v. Sims. In that case the high court invalidated a voting district plan for the Alabama state senate in which instead of apportioning the seats equally across the state by population, it assigned one senator to each county.

The Supreme Court said that apportionment by population is constitutionally required for both houses of a state legislature in recognition of the “right of all of the state's citizens to cast an effective and adequately weighted vote.”

The Reynolds decision was handed down at a time when a state’s total population could generally function as an accurate proxy for eligible voters. Today, with up to 11 million unauthorized immigrants in the country, that is no longer the case in many parts of the country.

In his majority opinion, Chief Justice Earl Warren appears to treat total population and the population of eligible citizen voters as interchangeable terms.

The decision says that state legislative districts “must be apportioned on a population basis” in which states must make an honest and good faith effort to fashion districts “as nearly of equal population as is practicable.”

The decision notes: “Whatever the means of accomplishment, the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the state,” the decision says.

The Constitution explicitly requires that congressional districts be equalized based on total population. That requirement helps uphold the principle of equal representation for all – both citizens and noncitizens.

But the high court also acknowledged that the constitutional scheme allows the states more flexibility than Congress in deciding how to equalize their own legislative districts.

Most states currently use population as the sole base measure upon which to equalize voting districts. But the Texas case is asking whether states might need to develop a more refined method of apportionment given the imbalance between total population and eligible voters in many districts.

In his Reynolds decision, Chief Justice Warren mentions three potential populations that might be used by states to apportion legislative districts: “residents, or citizens, or voters.”

Nonetheless, legal precedents and interpretations since that 1964 landmark case consistently reflect a total population approach to equalizing voting districts. Many civil rights and election law experts say the issue is decided and there is no reason for further debate.

“This case involves a thoroughly settled question,” writes G. Eric Brunstad, Jr. in a friend of the court brief on behalf of the Lawyers’ Committee for Civil Rights Under Law.

“In the half-century since this court first announced the one-person, one-vote principle…, not a single court has held that the use of total population as the basis for apportionment is impermissible,” Mr. Brunstad said. “To the contrary, both the lower courts and the states have consistently relied on this court’s sanctioning of total population apportionment in Reynolds and its progeny.”

Others disagree. “I don’t think it has ever been settled law,” says Edward Blum, founder of the Project on Fair Representation in Austin, Texas. It is Mr. Blum who conceived and launched the Texas lawsuit.

Blum says that by his reading of the Supreme Court’s decisions outlining the one person, one vote principle, references to voter equality in those decisions overwhelmingly outnumber references to population equality.

“If you add up all the references to voter equality and compare them to references to population equality, we win by a landslide,” he said in an interview.

Blum says the issue is an open question that the high court has never answered, at least not yet.

In the Texas case, a three-judge panel upheld the state’s exclusive use of population data to equalize voting districts. The court said Texas was not constitutionally required to draft districts that afforded equal weight to eligible voters.

Lawyers for the two Texas voters challenging the system argue in their appeal to the Supreme Court that, under the lower court’s decision, it would be permissible for Texas lawmakers to draft a Senate voting map with 31 districts of equal population that would – in the lower court’s view – fully comply with the one-person, one-vote rule, “even if 30 of the districts each contained one eligible voter and the 31st district contained every other eligible voter in the state.”

“That cannot be right,” says William Consovoy, an Arlington, Va., appellate lawyer, in his brief on behalf of the Texas challengers.

“The court,” he wrote, “must decide whether the one-person, one vote rule protects the right of eligible voters to have an equal vote. If it does, then the judgment below cannot stand.”

Texas officials defend their use of total population estimates to equalize state senate districts by saying that the Supreme Court has left it to the states to decide which method to use to draw their own legislative districts.

Use of total population is one of the approved methods, the state argues.

“The Equal Protection Clause does not require states to reapportion based on any particular measure of population,” Texas Solicitor General Scott Keller wrote in his brief to the court.

He says in addition to using total population, states are also free to apportion districts based on the voting-eligible population, as requested by the Texas challengers.

The choice belongs to the state, he says.

The Obama administration is seeking to steer the high court away from addressing the voter-eligible issue. US Solicitor General Donald Verrilli argues in his brief that it is clear that state legislative districts can be apportioned based on total population and that since that’s the way Texas drew its districts, the plan should be upheld and the lawsuit dismissed.

He says nothing in the 14th Amendment’s Equal Protection Clause requires states to equalize districts based on eligible voters.

Mr. Verrilli and many civil rights groups argue that the relevant goal is equal representation of everyone in the district – both citizens and noncitizens, both adults and children. The interest at stake is not equality among voters, or the relative weight of each vote, they say, but numerical equivalence among all persons being represented.

“[The voter equality position] is in tension with this court’s recognition that elected officials are responsible to their entire constituency, not just to those who can or do vote,” Verrilli wrote in his brief.

State discretion to choose which population base upon which to equalize new voting districts would make it easier for officials to engage in gerrymandering and other “gamesmanship” to protect incumbents or limit participatory democracy, Verrilli said.

Mr. Consovoy disagrees. He says the Obama administration’s position in the case, if successful, would make it impossible for voters – other than members of minority groups – to win vote dilution claims in the courts.

Critics of voter equality also say a new system of equalizing districts would be difficult and disruptive.

The US Census is designed to collect data about the total population, not voters. Existing statistics for voting age population are not as detailed and reliable as Census data reflecting total population, experts say.

But some demographers counter that surveys that include voting age population are accurate enough for the government to use them to distribute billions in government assistance. And they are accurate enough for courts to use when investigating alleged voting rights violations, they say.

Such surveys could also be used to help draw more accurate districts, they say.

As a middle-ground compromise, some analysts suggest that states could use a combination of both total population and eligible voters to equalize voting districts.

But right now the question is significantly more basic.

The case is Evenwel v. Abbott (14-940). A decision is expected by late June.

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