Evenwel threatens one person, one vote

Half a century after it seemed to settle the issue, the Supreme Court is considering whether it should redefine the meaning of the most basic principle of American democracy — one person, one vote — and, in so doing, redistribute political power across the nation.  The high Court should reject that invitation.

“One person, one vote” is a shorthand for a set of constitutional rulings handed down by the Court in the early 1960s.  In a series of opinions, the Warren Court determined that each district electing a representative to a specific governmental body — from the U.S. House of Representatives to your local school board — should contain the same population.  So, after each decennial Census reveals shifts in the population, state and local governments throughout the country redraw legislative districts based on the Census results to ensure that each contains the same number of people.

{mosads}The plaintiffs in Evenwel v. Abbott, set for argument this week, are Texas voters who contend that this fifty-year-old, nationwide practice is unconstitutional.  They point out that the Texas Senate districts in which they reside, although containing roughly the same number of people as other state senate districts, have more voters.  Thus, the plaintiffs believe that their votes count for less and argue that the Equal Protection Clause of the Fourteenth Amendment requires Texas to redraw its senate districts to contain not the same number of inhabitants, but the same number of eligible voters.

If the Supreme Court agrees with the plaintiffs, it would redraw political power across the nation.  A ruling in the plaintiff’s favor would apply to virtually every state legislative and local government body across the country.  In so doing, the Court would shift political power and resources away from urban and suburban areas that have higher concentrations of persons ineligible to vote—e.g., children, undocumented persons, and felons.  Consequently, cities across the country, including Los Angeles, Chicago, and Atlanta have opposed the plaintiff’s challenge.

The Evenwel plaintiffs should not get the ruling they desire.  First, a ruling for the plaintiffs is unworkable.  State and local governments redistrict based on Census data.  But the Census does not inquire into citizenship or voter registration and, therefore, does not collect data on who is eligible to vote.  As such, there is no national list of eligible voters to implement basis other than total population for apportionment.

Second, a ruling in the plaintiffs’ favor would create an indefensible inconsistency within the Constitution.  One provision of the Constitution requires the states to draw each district for the U.S. House of Representatives to contain the same number of inhabitants.  The plaintiffs nevertheless contend that another provision of the Constitution prohibits the states from drawing state legislative districts in the same way.  Thus, the plaintiffs argue that the Constitution prohibits what it also requires.  That makes no sense.

Most importantly, as Common Cause argued in an amicus curiae brief filed in Evenwel, the plaintiffs’ challenge runs counter to the most fundamental principle of representative government and reveals a basic misunderstanding of the Equal Protection Clause, which guarantees to each “person . . . the equal protection of the laws.”  Every person in the United States—whether an eligible voter or not—is subject to the laws enacted by the state legislatures.  Each state legislator is charged to represent every person in his or her district—not only those who made campaign contributions, or voted for him or her, or are eligible to vote.  Therefore, every district represented in a legislative body should contain the same number of people.

This basic principle was established in the seminal reapportionment case, Reynolds v. Sims, decided in 1964.  There, Chief Justice Earl Warren wrote that “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people.”  After his resignation, Warren told the press that Reynolds and its companion cases were the most important handed down by the Supreme Court during his tenure as Chief Justice.  Those rulings, alongside the Voting Rights Act of 1965, fundamentally altered the allocation of political power across the country.

The current Court, however, gutted the Voting Rights Act two years ago in Shelby County v. Holder.  And the same group that successfully mounted that challenge is behind the Evenwel plaintiffs’ attempt to rewrite the apportionment principles that States have relied on and enforced since the 1960s. 

Should the Supreme Court agree with the plaintiffs, a huge percentage of the nation’s population could be unequally represented in their state and local governments.  The high Court should reject their challenge and hold that Texas did not violate the Constitution in creating Senate districts that contain roughly equal numbers of people.  In fact, as the Warren Court taught, the Constitution requires it.  After all, it is We the People—all of the People—for whom, and on whose behalf, the laws are made.

Farris is an Atlanta attorney specializing in complex business and government litigation for the firm of Bondurant, Mixson & Elmore, and helped draft a brief in the Evenwel case for the Supreme Court on behalf of 400,000 members of Common Cause.


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