Redistricting case brings partisan politics, immigration and federalism before SCOTUS
But one major question has gone unanswered since the landmark 1964 case of Reynolds v. Sims and a related line of cases striking down state legislative districts that were grossly malapportioned. What population measures should be used in trying to come up with roughly equal districts? The total number of people? Citizens of voting age? Registered voters?
On Dec. 8, in Evenwel v. Abbott, the justices will examine those questions in a case that includes elements of federalism, partisan politics, immigration and demography.
“Nearly every jurisdiction in the nation uses total population” in drawing district lines, says Joseph R. Fishkin, a law professor at the University of Texas at Austin who has written widely on redistricting issues. “There is just an intuition that that’s what these cases require—that you not have one district with a lot more people than another district.”
But there’s another view, Fishkin adds, “that gets a huge boost from a sentence in Reynolds v. Sims that refers to ‘the weight of a citizen’s vote.’ That leads to the idea that we’re talking about voters here, not people.”
AN OBLIGATION TO EXPLAIN
The Evenwel case has its genesis in an unrelated suit stemming from a 1997 redistricting plan for the Houston city council that, among other things, roughly equalized district populations without regard to the number of eligible voters.
Challengers of the plan lost, including an appeal that was denied certiorari in the Supreme Court in 2001. But Justice Clarence Thomas wrote a dissent that essentially invited a new case. “The one-person, one-vote principle may, in the end, be of little con-sequence if we decide that each jurisdiction can choose its own measure of population,” Thomas wrote in Chen v. City of Houston. “But as long as we sustain the one-person, one-vote principle, we have an obligation to explain to states and localities what it actually means.”
It took time, but that expla-nation may come out of Texas’ effort to redraw its state legislative districts following the 2010 U.S. census. Amid the type of intense wrangling common in state redistricting efforts, Texas, with a 2010 population of 25 million, adopted a plan that roughly equalized its 31 state Senate districts into 811,000 people each.
Two Texas voters challenged the state’s plan under the 14th Amendment’s equal protection clause. Sue Evenwel, who lives in Titus County in northeast Texas, and Edward Pfenninger of Montgomery County, which is near Houston, say their state Senate districts are among the most overpopulated with eligible voters under the state’s redistricting plan.
Evenwel’s District 1 has some 557,000 eligible voters, compared with about 358,000 in the Senate district with the fewest eligible voters. That means that based on citizen voting-age population data, the vote of an eligible voter in that low Senate district is 1.56 percent more powerful than Evenwel’s vote. And that same vote in the low Senate district is 1.41 percent more powerful than Pfenninger’s vote.
The simple reason for the disparities in citizen voting-age population is that by apportioning districts by total population, many are packed with higher proportions of nonvoters. These include noncitizens (those in the United States legally or not), children, prisoners and people with mental disabilities.
The plaintiffs lost last year in a special three-judge federal district court in Texas, which reasoned that the choice of which population base to use in redistricting is “left to the states absent the unconstitutional inclusion or exclusion of specific protected groups of individuals.”
BEHIND THE SUIT
There is little information in the record about the two plaintiffs, in keeping with the tactics of the organization behind the suit. The Project on Fair Representation previously found plaintiffs to challenge provisions of the Voting Rights Act of 1965 in Shelby County v. Holder and affirmative action in college admissions in Fisher v. University of Texas at Austin, (which returns to the high court for arguments scheduled on Dec. 9).
Edward Blum, a former Houston investment banker who ran un-successfully for Congress in 1992, is the conservative activist who orchestrated these cases, using donations from the right to hire top-flight legal talent to press these cases. “The argument we’re making is that districts must be drawn using some metric of eligible voters,” he says. His one-man organization now lists Austin as its home, but Blum says he splits his time between Maine and Florida.
“The American population today is vastly different than the population of 50 years ago,” he adds. “Today, there are concentrations of nonvoters that have impeached the concept of voter equality.”
The project’s lead counsel is William S. Consovoy of Consovoy McCarthy Park in Arlington, Virginia. He argues in a merits brief that “the fundamental purpose of the one-person, one-vote principle has been to ensure that the states apportion districts in a way that protects the right of eligible voters to an equal vote. It necessarily follows that requiring the states to apportion approximately the same number of eligible voters to each district is the only way to enforce that constitutional right.”
In defending its plan, Texas argues that a claim of malapportionment is really a claim of invidious vote dilution. “States do not commit invidious vote dilution by simply choosing to use total—or voting-eligible—population when reapportioning,” Texas Attorney General Ken Paxton and Solicitor General Scott Keller argue in a brief. “Plaintiffs concede that Texas sufficiently equalized total population. Texas therefore did not engage in invidious vote dilution and did not violate the equal protection clause.”
One battle in the case is over census data and demography. A group of five demographers filed an amicus brief on Evenwel’s side arguing that states have the data available to apportion by citizen voting-age population because of the U.S. Census Bureau’s American Community Survey.
While the decennial census attempts to count the entire population and does not ask about citizenship, the ACS is administered annually to a sample of about 3.5 million U.S. households, with three- and five-year summaries including citizen voting-age population “at every level of geography for which ACS data are collected throughout the nation,” the demographers’ brief says. “These tables, in turn, allow demographers, legislators and the general public to calculate a jurisdiction’s CVAP with relative ease.”
They further argue that data from the American Community Survey is so reliable that the U.S. Department of Justice regularly uses it in Voting Rights Act litigation.
But Texas has some demography experts on its side, too. Four former Census Bureau directors filed an amicus brief arguing that the ACS was not designed with redistricting in mind, and the timing of the survey data doesn’t necessarily align with decennial redistricting.
Robert Groves, the provost of Georgetown University and the Census Bureau director from 2009 to 2012, says that redistricting these days involves block-by-block data, and the ACS doesn’t provide that level of detail. Requiring citizen voting-age population “would be a pretty big departure” in redistricting, he says. “If you rely on sample surveys, they become unstable. This is tricky stuff.”
Nathaniel Persily, a law professor and political scientist at Stanford University, filed an amicus brief on Texas’ side on behalf of himself and other scholars. He says that because no state maintains a data set of eligible voters, the Evenwel plaintiffs and their allies are grasping for “second-best alternatives” such as the American Community Survey.
Two issues that are mostly subtexts in the case are partisan politics and immigration. On the latter, the fact that Texas’ total population approach counts undocumented immigrants is troublesome to the Immigration Reform Law Institute, a Washington, D.C., group that filed an amicus brief on behalf of Evenwel. It says that “illegal aliens have no right to apportionment or representation under the Constitution.”
As for politics, there’s a perception that a ruling for the Evenwel plaintiffs would benefit Republicans more than Democrats across the country. Fishkin of the University of Texas says that if children and noncitizens aren’t going to be counted in the relevant population for redistricting, that will likely help the Republican Party most of the time. “That effect may not be totally uniform,” he says, “but it’s pretty clear.”
This article originally appeared in the December 2015 issue of the ABA Journal with this headline: “Redistricting Re-examined: Court considers methods to measure populations.”