Thursday, December 17th, 2015
December 17, 2015 | The Weekly Standard
Dissenting from his eight fellow Justices in 1964, John Marshall Harlan II accused the Warren Court of stretching the meaning of the Equal Protection Clause on the judicial activism rack. Essentially, Harlan argued, the “One Person, One Vote” doctrine—as the Reynold v. Sims ruling quickly became known—manipulated the Fourteenth Amendment into funneling the general right of citizens to vote into the right to a particular kind of apportionment of state legislatures. Furthermore, although the Court ruled that state legislative seats “must be apportioned on a population basis,” rather than on geographic or political subdivisions, it had refused to specify how the States ought to translate that in practice.
Justice Harlan cautioned that the Court, out of a misplaced reformatory zeal, had not just abrogated the rightful discretion of the States, but had set off an unending contest over the meaning of “person” in relation to representation that would haunt the Court for the foreseeable future.
Four decades of subsequent cases have proven Harlan’s latter point. Two years after the Reynolds ruling, the Supreme Court only slightly clarified in Burns v. Richardson that the States could choose what population to use for apportionment (so long as the Constitution did not forbid it). Left unresolved was whether total population, voting age population, citizen voting-age population, citizen-eligible voting-age population, or some other variant were most appropriate to use for redistricting. Thus by 2001, Justice Clarence Thomas was noting with some exasperation that the Supreme Court had “never determined the relevant ‘population’ that States and localities must equally distribute among their districts,” in his dissent from a writ of certiorari in Chen v. City of Houston. But after so many years of affirming the legal status quo informed by Reynolds and Burns, the Court surprised watchers by agreeing to hear Evenwell v. Abbot, a new case directly challenging the definition of “population” for state apportionment purposes. Oral arguments for the case occurred December 8, with the decision to be released at a future date.
Working within the post-Reynolds framework of Court supervision of the States’ districting discretion, plaintiffs Sue Evenwel and Edward Pfenninger contest that the state senate districts drawn by the Texas legislature in 2013 violate the one-person, one-vote principle of the Voting Rights Act. That principle, they argue, “protects the rights of voters to an equal vote,” and thus even by Reynolds standards, the statewide districting plan is “patently unconstitutional” since it “distributes voters or potential votes in a grossly uneven way.”
The Court has already established that a state legislative redistricting plan with a population deviation exceeding 10 percent creates a prima facie case of discrimination. Such was their ruling in Brown v. Thomson (1983). But in this recent instance, Evenwel and Pfenninger, registered voters in Senate District 1 and 4 respectively, filed suit because both the number of citizens of voting age and the number of registered voters in their two districts deviate substantially—between 31 and 49 percent—from the “ideal” population of a Texas senate district. Where Evenwel’s district has 574,000 eligible voters, Pfenninger’s has 500,000, while the district around Brownsville that neighbors Mexico has only 372,000 eligible voters out of the 811,000 in total population across all Texas legislative districts. Evenwel and Pfenninger accordingly argue that their vote is diluted, and that Texas should have to redraw its legislative districts, baring total population as the standard for apportionment.
Critics of the plaintiffs can point to the Supreme Court’s warning in Burns about using registered voters or “actual voter basis” for apportionment, since that population is “susceptible to improper influences by which those in political power might be able to perpetuate underrepresentation of groups constitutionally entitled to participate in the electoral process.” But also to be found in Burns is the Supreme Court’s acknowledgement that when total population and the number of eligible voters diverge, representation should follow the eligible voters: Hawaii could base their districting plan on eligible voters because “total population” would have included the large number of tourists and military personnel there, which number substantially distorts “the distribution of state citizenry.”
The Supreme Court has further said that the states are not “required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime.” In Lockport v. Citizens for Community Action (1977), the Justices stated that all citizens, in voting for their legislators, “have an equal interest in representative democracy” and that “the concept of equal protection therefore requires that their votes be given equal weight.” In Barnett v. City of Chicago (1998), the Seventh Circuit noted that “the dignity and very concept of citizenship are diluted if noncitizens are allowed to vote either directly or by the conferral of additional voting power on citizens believed to have a community of interest with the noncitizen.” And in the well-known partial dissent to the Ninth Circuit’s ruling in Garza v. County of Los Angeles (1991), Judge Kozinski wrote that “the core of one person one vote is the principle of electoral equality, not that of equality of representation.”
How “person” or “population” should be defined in relation to apportionment and voting within the equation of American-styled representative government has been a complicated matter in our constitutional history. (See “Immigration and Representation.”) But if the Supreme Court was honest when it established the one-person, one-vote principle, then what must be considered is the votes of individual voters and eligible voters. Citizens’ votes in districts with high numbers of citizens are currently worth less than citizens’ votes with low numbers of citizens but high numbers of non-citizens. And that is a negation of the Equal Protection Clause as understood by the Warren Court in Reynolds.
It is also a dilution of citizenship. Even as recently as 2004 the New York Times editorial board believed that “the most important privilege that comes with [U.S.] citizenship is the right to vote.” It is a fundamental political right, because it is preservative of all rights; it’s how we express our political will on an equal standing with our fellow citizens. Thus concepts of citizenship and voting are necessarily tied together for us. Evenwell v. Abbott thus has the substance to be among the most important voting cases of the past 60 years—at its heart, it reaches beyond legalistic or judicial considerations of apportionment processes to pose the question to American society about how a free government acknowledges the political equality of its citizens.