by Tom Faiella
“The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.”
--Justice Earl Warren, U.S. Chief Justice, 1964, Reynolds v. Sims.
When redistricting cases first arrived on the steps of the United States Supreme Court arguing that the way states divided up their voting districts violated the Equal Protection Clause, the Court was concerned about wading into a political issue that might be better left to the other branches of government. The political questions doctrine holds that some types of issues are “fundamentally political” and therefore better left to “some other aspect of the political process to settle out.” Until the 1960s, the Supreme Court had held that the issue of redistricting was a purely political question. Most notably, in 1946 in Colegrove v Green the Supreme Court held that redistricting decisions were better left to the State legislatures or Congress.
In 1962, however, in the case of Baker v Carr, the Court agreed to hear a malapportionment case out of Tennessee that argued that although the Tennessee State Constitution required the state to redraw election districts every ten years in connection with the decennial federal census, the state had not reapportioned their voting districts in sixty years. The caused the voting district that Mr. Baker lived in, Shelby County, to have ten times as many people than some rural districts, substantially diluting his vote. The Court in Baker v Carr, ruled 6-2 in Baker’s favor, and laid out the current test for whether or not a case presented to a federal court must be rejected as a “political question.” The Court set forth the following factors:
Prominent on the surface of any case held to involve a political question is found:
(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department;
(2) or a lack of judicially discoverable and manageable standards for resolving it;
(3) or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
(4) or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
(5) or an unusual need for unquestioning adherence to a political decision already made;
(6) or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."
Applying these six factors to the Baker case, the Court determined that the vote dilution question before it was justiciable. Two years later, in Reynolds v Sims, the Court formally enunciated its famous “one man, one vote” rule. Specifically, the Reynolds majority opinion, written by Justice Earl Warren, required “substantially equal state legislative representation for all citizens” and that states make “honest and good faith” efforts to construct districts “as nearly as practicable ” based on equal population. The Court, however, cautioned that voting districts did not require “mathematical exactness.”
Evenwel v. Abbott
Over half a century later, redistricting cases continue to appear on the Court’s docket. This term, the Court has granted review to one of the more controversial cases in recent memory. In Evenwel v. Abbott, the Court considers whether the traditionally-followed rule that districts should be drawn to include roughly equal total populations should be changed to instead include roughly equal eligible voters. That is, to exclude those who are not eligible to vote from being counted for redistricting purposes.
Sue Evenwel and Edward Pfenninger are residents of districts in Texas that are significantly overpopulated with eligible voters, as compared to other districts in Texas. As such, they contend that the current redistricting plan violates the Equal Protection Clause of the 14th Amendment and the one-person one0vote rule established in Reynolds v Sims.
A three-judge panel of the United States District Court for the Western District of Texas considered the Evenwel case and decided that it lacked merit, granting the State of Texas’s motion to dismiss. The court first held that the appellants’ needed to show that the approved plan failed to achieve the Reynolds’ “substantial equality of population” test. The District Court further pointed to Supreme Court precedent that held that “minor deviations” in population were permitted, defining a “minor deviation” to be a deviation under 10%. The court noted that the Evenwel case only presented a population deviation of 8.04%. That is, the difference in total population between the largest district and the smallest district.
The District Court next confronted the argument that Texas should use the number of eligible voters to draw its districts rather than total population. The court accepted that a 1966 Supreme Court precedent Burns v. Richardson, governed the matter. In Burns, the Court considered a redistricting plan in Hawaii in which the State chose to use registered voter data to draw its districts rather than total population. The Supreme Court accepted Hawaii's approach stating, "[T]he Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which this substantial population equivalency is to be measured" Yet, importantly, the Court further stated that the decision as to which method to use was one that was to be left to the States. The Court stated that the decision whether to exclude or include individuals who are ineligible to vote from an apportionment base “involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere." The court concluded that the appellants were asking the court to “interfere” with a choice that the Supreme Court had “unambiguously left to the states,” and as such, “decline[d] the invitation.”
Before the United States Supreme Court, Sue Evenwel and Edward Pfenninger argue that if the one-person, one-one vote principle provides “any protection,” then they have a meritorious claim. They point to an example in Texas's current redistricting map where “the votes of electors in Senate District 3, a district over-populated with electors, have only sixty-one percent (61%) of the weight of the votes of electors in Senate District 27, a district under-populated with electors.” Under the district court’s reasoning they argue, “[T]he Texas Legislature could have adopted a Senate map containing 31 districts of equal total population without violating the one-person, one-vote principle—even if 30 of the districts each contained one voter and the 31st district contained all other voters in the State. That cannot be correct.” Relying heavily on language from a 1970 Supreme Court case, Hadley v. Junior College District of Metropolitan Kansas City, they quote:
[W]hen members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.
They ask the Supreme Court for a declaratory judgment to hold that the plan as currently instituted violates the 14th Amendment and to enjoin Texas from using their current plan to hold any elections.
The State of Texas responds that the lower court correctly found that there was no “unsettled substantial federal question” and points to the decisions of three other circuits whose courts have rejected the same arguments put forth by these Texas voters. In the alternative, Texas argues that even if dilution of voting power among eligible votes was a concern, the dilution here is no more than a “minor deviation,” which is not enough to make a prima facie claim of a Constitutional violation.
The Supreme Court’s decision in Evenwel v. Abbott is expected in June 2016.