Supreme Court without Scalia Deadlocked Liberal

In Evenwel, two Texas voters claim that state legislative districts violate the Equal Protection Clause of the Fourteenth Amendment because the Texas legislature included large numbers of noncitizens, who are ineligible to vote, in the population it used to draw the districts. The plaintiffs reside in districts whose voting populations deviate anywhere from 31 to 49 percent from the “ideal” population of a Texas Senate District. As a result, their votes have only about half the value of voters in other districts. The Supreme Court has never decided what population states should use to meet the one person, one vote standard it established almost sixty years ago under the Equal Protection Clause. Should this issue be left up to the states to decide? Or does one person, one vote require that only eligible voters be considered?

Judicial Watch reports:

Judicial Watch reacted to today’s ruling by the United States Supreme Court in finding that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population only, rather than voter population, when apportioning state voting districts. Judicial Watch said that the decision was “political” and would “not stand the test of time.”

The Supreme Court ruled this morning unanimously that Texas was constitutionally justified in drawing state electoral districts based on total population.

Judicial Watch President Tom Fitton stated:

The Supreme Court’s Evenwel decision undermines the principle of “one man, one vote.”  The decision will encourage politicians to fill their legislative districts with more non-citizens and fewer voting Americans.  This abuse could lead to unequal voting power for voters in districts with large numbers of alien residents.  Under this decision, 100,000 black American voters in one state legislative district would have the same voting power as 10,000 white American voters in another district with 90,000 non-citizens.  Even though total population is the same in both districts, voting power is radically different.  These types of abuses, already present in Texas, will spread nationally. This is one reason this political decision by the High Court won’t stand the test of time.

Judicial Watch joined with the Allied Educational Foundation (AEF) in the filing of two amici curiae briefs with the U.S. Supreme Court in support of Sue Evenwel, a Texas resident who filed a lawsuit to overturn a Texas “malapportionment” law (Sue Evenwel, et al. v. Greg Abbott, et al. (No 14-940)) and (Sue Evenwel, et al. v. Greg Abbott, et al. (No. 14-940)).

Judicial Watch and AEF argued to the court that:

Texas is devaluing the votes of certain of its citizens by improperly including noncitizen nonvoters when determining the “equal population” of legislative districts. Under federal law and the laws of all 50 states, only citizens may vote in federal elections. Texas’ scheme to give weight to nonvoting noncitizens along with lawful voters is contrary to the principles embodied in citizen voting laws.

In June 2013, the Texas legislature passed “Plan S172,” apportioning senatorial voting districts according to the total number of citizens, including illegal aliens, who live in a district, rather than according to the total number of voters or potential voters. As a result, the high numbers of non-voting-eligible immigrants – whether legal or illegal – in Texas’ urban centers substantially inflated the voting power of the lesser number of eligible voters who also reside in those districts. The situation is particularly acute in urban areas like Dallas and Houston, where up to 50 percent of voting age Hispanics are not currently U.S. citizens.

In June 2014, Texas citizens Sue Evenwel and Edward Pfenninger, both of whom live in areas “overpopulated” with eligible voters as compared to other Texas state senate districts, brought suit claiming that the law violated the “one person, one vote” clause of the Fourteenth Amendment. On November 5, 2014, a three-judge federal district court dismissed the suit, and on December 4, 2014, Evenwel and Pfenninger filed their notice of appeal to the Supreme Court.

The Judicial Watch-AEF brief argued that the districting law almost cuts in half the voting power of some Texas citizens, as compared to others.


United States Supreme Court building.
United States Supreme Court building. (Photo credit: Wikipedia)

The Heritage Foundation reports:

In a loss for voters, the Supreme Court has ruled unanimously against two residents of Texas who had argued that the Texas legislature diluted their votes when it used total population to redraw state Senate districts.

In Evenwel v. Abbott, the Supreme Court allowed states to use total population in redrawing district lines, even though that this includes a large number of noncitizens (legal and illegal), felons, and others who are ineligible to vote.

Sue Evenwel and Edward Pfenninger challenged the state Senate districts drawn by the Texas legislature using total population in 2013. They claimed that both the number of citizens of voting age and the number of registered voters in their districts deviated substantially—between 31 and 49 percent—from the “ideal” population of a Texas Senate district. They argued that this disparity significantly diluted their votes in comparison to those of voters who live in districts with large numbers of non-voters.

According to this logic, their votes were worth roughly half those of voters in other districts. In other words, they claimed that their Senate districts had the same number of representatives as other districts that contained the same number of people but only half the number of eligible voters.

This is a particular problem in Texas, which has almost two million illegal aliens, about seven percent of the state’s population.

‘One Person, One Vote’

By way of background, state legislatures reapportion voting districts for their state and federal representatives following each decennial Census. The guiding principle for states—“one person, one vote”—requires that all voters have approximately equal voting power.

This principle comes from a line of cases decided by the Supreme Court in the mid-1960s. Prior to that time, the court had refused to intervene in redistricting controversies, claiming that it was a “political question” the courts should not consider.

According to the court, the “one person, one vote” principle that it read into the Fourteenth Amendment’s Equal Protection Clause requires that “seats in both houses of a bicameral state legislature must be apportioned on a population basis.”

The court never defined what population basis states could use. When the court previously declined to hear a 2001 case similar to Evenwel v. Abbott, Justice Clarence Thomas observed that the court “left a critical variable … undefined … the relevant ‘population’ that States and localities must equally distribute among their districts.”

Urban Lawmakers Dominate

Before the Supreme Court’s creation of the “one person, one vote” principle, many states had refused to redistrict for more than half a century, despite a dramatic nationwide population shift from rural to urban areas.

These state legislatures were dominated by rural legislators, who were not willing to reapportion and lose their power and control. The “one person, one vote” principle led to legislative districts being redrawn in nearly every state and urban areas gaining a large number of legislative seats.

Today, lawmakers from urban areas dominate many state legislatures the way rural areas used to because of the huge influx of noncitizens, both legal and illegal, into predominantly urban settings. The court’s decision in Evenwel is a refusal to correct this problem, in sharp contrast to what it did 60 years ago when the situation was reversed.

Claims of vote dilution have been the driving force of redistricting cases for decades, and the court has affirmed dozens of judgments against states and local governments for diluting the votes of its minority residents. Yet in Evenwel v. Abbott, the court failed to enforce its “one person, one vote” principle evenhandedly. With this ruling, the Supreme Court has sanctioned states’ dilution of citizens’ votes.

Total Population

The court has concluded that states may base their legislative districts on total population. In an opinion for six members of the court, Justice Ruth Bader Ginsburg found that history, the court’s precedents, and the settled practice of states using total population make clear that “it is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts.”

The majority also pointed out:

[N]onvoters have an important stake in many policy debates … 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 problem with that analysis is that noncitizens, particularly illegal aliens, are not entitled to any representation, constituent services, or public benefits. Their presence distorts the redistricting and apportionment process and shifts political power in a way that is fundamentally unfair to citizens, both those eligible to vote and those, like children, who are not eligible.

There is also no credible basis for the claim that representatives would choose to vary the amount of help they give to constituents depending on how large the population is in their districts.

Justices Clarence Thomas and Samuel Alito agreed with the majority’s conclusion but not its reasoning. Writing separately, Thomas noted that the court has never provided a sound basis for the “one person, one vote” principle and has struggled to define what that principle protects. Thomas concluded that Evenwel and Pfenninger are right that the court’s “one person, one vote” precedents are based on “the theory that eligible voters have a right against vote dilution.” In his view, the majority’s reasoning “rests on a flawed reading of history and wrongly picks one side of a debate that the Framers did not resolve in the Constitution.”

Alito pointed out one of the only redeeming features of this decision. Texas asked the court to also rule on whether states “are not barred from using eligible voter statistics” to draw boundary lines instead of total population.

This question “implicates very difficult theoretical and empirical questions about the nature of representation.” Alito stated the court has “no need to wade into these waters in this case” and can consider it “if and when” the court gets a redistricting plan that “uses something other than total population as the basis for equalizing the size of districts.”

State legislatures should consider changing their rules and laws governing redistricting to make citizen population the standard for drawing legislative districts, not total population. That is the best way to protect the value of citizens’ right to vote.


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