With its unanimous decision in Evenwel v. Abbott, the Supreme Court sent a strong message that it was not interested in upending a decades-old interpretation of the foundational principle: one person, one vote. The question is, will the conservative forces who pushed the case listen?
Voting rights advocates saw the decision as a slam-dunk victory that rejected a challenge they contended was a long-shot to begin with. However, the conservative legal activist who brought the lawsuit is claiming he has found a silver lining and is hinting at a coming crusade to take another swing at one person, one vote. While two of the justices seemed at least open to taking another look at “one person, one vote” if another lawsuit showed up at their doorstep, bringing it there would be an uphill challenge.
The case was a lawsuit brought by voters in Texas who claimed their votes had been diluted by the the state’s Senate redistricting plan, because their district had a higher percentage of eligible voters than a neighboring district. Had the Supreme Court agreed, and said the use of total population was unconstitutional, it would have ripped open an interpretation of “one person, one vote” that dates back to the 1960s and upended the near-universal practice of using total population to draw legislative districts.
Alas, the challengers could not get a single justice to agree with their argument. Furthermore, six justices — including conservatives Chief Justice John Roberts and Justice Anthony Kennedy — signed onto the majority opinion written by Justice Ruth Bader Ginsburg. Her opinion offered a robust defense of using total population, hailing it as “constitutional history” as well as “longstanding practice.”
But her opinion saying Texas could use total population stopped short of addressing whether it could have used some other metric. That was just what Texas had argued while defending its plan, causing some to worry about the prospect of a more muddled opinion greenlighting an either/or approach that would encourage states to no longer draw districts based on total population.
Justice Clarence Thomas — perhaps the challengers’ strongest ally in the lawsuit for his documented skepticism of “one person, one vote” — said in a concurring opinion that indeed states should have the choice. Meanwhile Justice Samuel Alito, in his own concurrence, said the majority had gone too far in its praise of total population but that it would require another lawsuit to settle question whether a state could use something else.
Indeed, Edward Blum — who spearheaded the Evenwel challenge and has a noteworthy record of baiting the Supreme Court into dismantling progressive civil rights policies — signaled that that’s the direction he would like to see states go.
“The issue of voter equality in the United States is not going to go away,” he said in a statement after the ruling was handed down Monday. “This ruling allows states and municipalities the ability to experiment further with different populations considered in drawing district lines. It is our hope that now given the choice, jurisdictions will create voting districts that equalize only some metric of citizen population.”
Legal experts and the voting rights advocates dismissed the idea that the court had sent that kind of signal. They argued instead that court avoided the question outright because it was not in a position to definitively rule on it.
“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.”