Right now, all states and most localities count everyone. Counting only eligible voters and excluding youth and non-citizens (including those here legally) would ultimately grant greater political power to population groups that are older, wealthier and more suburban. And rural areas that lean Republican usually have higher percentages of residents eligible to vote.
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Evenwel v. Abbott asks the court to examine whether the principle of one person, one vote requires state legislative districts to be apportioned on the basis of the state’s total population as they are now or based on the number of citizen voters.
Chief Justice John Roberts suggested he viewed eligible voters as a legitimate standard.
“If you have a siutation where one person’s vote is effectively worth half of what another person’s vote is in the neighboring district, that, I think, is a problem”, Shapiro says.
“Apportionment plans that equalize total population satisfy the Equal Protection Clause because they ensure equal representation for equal numbers of people”, Solicitor General Donald Verrilli argued in court papers. And minority students can’t simply be token representatives; there should be enough minorities so that they feel comfortable on campus and speaking out in class.
Justice Anthony M. Kennedy seemed to be looking for a middle ground. “Why is one option exclusive of the other?” he asked.
Kennedy sounded persuaded. “That sounds highly probable”, he said.
As to combining population and voting eligibility criteria, he noted that in NY, for instance, Manhattan has 9 percent children in its population, while Brooklyn has 30 percent children.
The Texas and Arizona plaintiffs claim their votes are diluted when state leaders pack them and other eligible voters into the same – often rural – districts, which results in their vote becoming less potent.
If the court issues a sweeping decision on the constitutionality of affirmative action, it could affect public universities across the country, as well as private ones that accept federal aid. Everywhere else, voting districts must have very close to the same populations. That likely means there are four votes against racial preferences, three in favor of them – and Kennedy as the justice who can save or strike down affirmative action, either just at the University of Texas or nationwide.
But the plaintiffs’ attorney William Consovoy spoke of a discrepancy of “nearly 50 percent” in some cases. Everybody’s vote is equal, and nobody gets more votes based on wealth, education, occupation, sex, race or geography.
It may not be practically feasible to do so because states would have to “disregard many other traditional redistricting factors”, responded Scott Keller, the lawyer for Texas, a reliably conservative and Republican-governed state that is fending off this conservative legal challenge.
MARCIA COYLE: So why would the Constitution require total population for that, but forbid it for use of state legislative redistricting? “The answer is no”. The suit brought by Evenwel against the state of Texas seeks to change the definition to eligible voters.
The U.S. Fifth Circuit Court of Appeals has twice agreed with the University of Texas policy, finding that that program makes limited use of race, and it conforms to the university’s intent to promote a racially and culturally diverse student body. But the court has never said – and this principle goes back to the 1960s – the court has never said what population counts.
Ginsburg mentioned a brief filed by Nathaniel Persily, a political scientist at Stanford Law School, that said there is only one constitutionally required and reliable data set: the census.
Who would benefit from a shift to eligible voters? She quoted one of the authors of the Amendment as declaring that what matters in representational government is “numbers, not voters; numbers, not property, this is the theory of the Constitution”.
Consovoy responded that courts have accepted other sources of data to assess other kinds of voting rights violations.
The U.S. Supreme Court once again is weighing into a fraught elections case – a case with enormous potential political repercussions.
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“If there was an attempt to stack this in favor of Democrats, it certainly failed”, she said.
