Chemerinsky: Should SCOTUS have turned down these election law cases?
Erwin Chemerinsky.
Two recent Supreme Court decisions with regard to voting were significant because they did not change the law. Both were unanimous and both raise the question of whether the court should continue to be obligated to review decisions of three-judge courts concerning voting districting. At a time when the court is hearing and deciding so few cases—only 66 were decided last term after briefing and oral argument—does it make sense to have some of the docket occupied by cases where the results are so clear?
Evenwel v. Abbott
In Evenwel v. Abbott, decided on April 4, the court reaffirmed that state and local governments may draw election districts on the basis of the total population. After the 2010 census, Texas drew the districts for its state senate based on the total population in the state, making sure that each district was about equal in population. Challengers argued that this violated equal protection because the districts varied greatly in their number of eligible voters. They contended that each voter should have equal influence, and that the Constitution requires that districts be based on the number of eligible voters, not total population.
Because the case involved a challenge to how election districts were drawn as required by federal law, it was heard by a three-judge federal district court. The district court panel upheld Texas’ reliance on total population in drawing districts for its senate. In a unanimous decision, with the opinion written by Justice Ruth Bader Ginsburg, the Supreme Court affirmed. The court declared: “We hold, based on constitutional history, this court’s decisions and longstanding practice, that a state may draw its legislative districts based on total population.”
The court explained that the framers of the Constitution and the drafters of the 14th Amendment clearly intended that districting would be based on population. Section two of the 14th Amendment says: “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” In order to rule for the challengers and hold that districting had to be based on eligible voters, the court would have had to explain why it was constitutionally forbidden for state and local districts to be drawn on the same basis that is constitutionally required for congressional districts.
The court explained that its prior decisions with regard to equal protection and voting had approved and applied using total population in drawing election districts. The court noted that total population is used in all 50 states and “adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 states and countless local jurisdictions have followed for decades, even centuries.” There would be a significant practical problem with requiring that districting be based on the number of eligible voters: the census provides a count of the population, but there is no similar mechanism that measures the number of eligible voters.
Finally, and perhaps most importantly, the court’s decision is based on a basic principle of democracy: Everyone—adults and children, voters and non-voters, citizens and non-citizens—deserves representation.
Justice Ginsburg powerfully made this point: “As the Framers of the Constitution and the 14th Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.”
The court did not decide whether a state or local government could choose to use eligible voters rather than total population in drawing election districts. Justice Clarence Thomas, in an opinion concurring in the judgment, argued that there is no constitutional basis for the “one-person one-vote” rule and that states can draw districts however they want. He wrote: “In my view, the majority has failed to provide a sound basis for the one-person, one-vote principle because no such basis exists. The Constitution does not prescribe any one basis for apportionment within States.”
Justice Alito also concurred in the judgment and stressed that whether states may choose to apportion based on eligible voters “is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.”
The bottom line is that the Court did not change the law and upheld the basis for drawing election districts that is used throughout the country.
Harris v. Arizona Independent Redistricting Commission
On April 20, the court unanimously upheld the districting for the Arizona state legislature, and reaffirmed that districts do not have to be precisely equal and that generally deviations of less than 10 percent will be permitted.
After the 2010 census, the Arizona Independent Redistricting Commission drew districts for the Arizona state legislature that “produced a maximum population deviation (calculated as the difference between the most populated and least populated district) of 4.07 percent.” A lawsuit was brought challenging this, and a three-judge federal district court upheld it.
The Supreme Court unanimously affirmed. Justice Stephen G. Breyer wrote for the court and explained that the Constitution “does not demand mathematical perfection” and that generally deviations of less than 10 percent are upheld. He wrote that “in a case like this one, those attacking a state approved plan must show that it is more probable than not that a deviation of less than 10 percent reflects the predominance of illegitimate reapportionment factors rather than … legitimate considerations.”
The challengers claimed that districting was done to help Democratic candidates and thus any deviation lacked a legitimate basis. But the court rejected the argument: “We believe that appellants failed to prove this claim because, as the district court concluded, the deviations predominantly reflected Commission efforts to achieve compliance with the federal Voting Rights Act, not to secure political advantage for one party.” Even though subsequent to the Arizona districting the Supreme Court effectively invalidated the preclearance requirement in the Voting Rights Act in Shelby County v. Holder (2013), it existed in 2010 and ensuring compliance was the basis for the districting.
The court’s decision in Harris did not change the law in any way. Deviations of less than 10 percent in population in drawing districts are presumptively permissible; the burden is on the challenger to demonstrate that such deviations were motivated by impermissible purposes.
Reaffirming settled law certainly has benefits. Yet there is the sense that neither of these cases required Supreme Court attention, especially in an era of a very reduced court docket. In neither instance was there a split among the circuits that needed to be resolved.
At the beginning of American history, the Supreme Court was required to hear every case brought to it. Over time, Congress modified these statutes, most recently in 1988, so that today the court has mandatory appellate jurisdiction only when Congress requires that a case be heard by a three judge federal district court. The Voting Rights Act requires this for challenges to the drawing of election districts. But mandatory Supreme Court jurisdiction makes no more sense here than in any other area. Congress could change this to have appeals in voting cases, like in all other matters, go first to a United States Court of Appeals and then to the Supreme Court.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).
