Evenwel v. Abbott: Should “One Person One Vote” really be “One Voter One Vote”?

Gaia Mattiace
Columnist

In American Constitutional law the history of the phrase “one person one vote” is a tumultuous one, but what does the provision truly entail? At first glance this issue seems simple. The 14th Amendment of the U.S. Constitution states that the number of representatives shall be apportioned on the basis of state population and that all individuals shall be given equal protection under the law. However numerous questions throughout history have emerged regarding what this provision implies, who has the power to oversee its accomplishment, and who really is the “one person” who will exercise the “one vote.”

This question lies not only for Congressional districts, through which individuals elect their Representatives to Congress, but also for legislative districts, through which voters elect their state legislators. Most recently the Supreme Court case of Evenwel v. Abbott has brought to light the question of whether the number of individuals per legislative voting district should be gauged from the total population or rather only just the voting population.  To grapple with this complex issue we must first take into account the history of “one person one vote,” as it applies to both Congressional and legislative districts, then overview the arguments of the plaintiff and defendant in Evenwel v. Abbott, and lastly consider the implications of a change to our current system.

Historically, the number of representatives in the House, how they should be distributed among states, and the way states form congressional districts and divide the population per district, have all been points of contention. The apportionment of a state’s representatives was originally dictated by Article 1, Section 2, Clause 3 of the U.S. Constitution, which states, “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” [1] The Constitution also states that there should be one representative for every 30,000 people and that each state must have at least one representative. After the Fourteenth Amendment, the Three-fifths Compromise was eliminated and the provision was readjusted to: “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state.” [2] Every 10 years the 435 seats in the House of Representatives are reapportioned on the basis of population, with obviously more Representatives for states with larger populations. After apportionment each state divides its constituents into districts of equal size, one for each representative. [3]

As straightforward as the process may seem, it has been wrought with conflict from almost its inception. From the first census in 1790, to 1911, debate raged on regarding what mathematical method should be used to apportion seats as well as how many seats to add for new states joining the union. No reapportionment was done after the 1920 census, in direct violation of the Constitution, because of a war between rural and urban factions due to the fact that the number of seats was gradually lessening for rural areas. [4] Finally The Permanent Apportionment Act of 1929 fixed the number of representatives at 435 and set the manner in which seats would be reapportioned in cases of population changes. [5]

Apportionment however is not only a process for Congressional districts but also for state legislative districts, which elect the representatives and senators for each state’s respective congress. [6] In the case of state apportionment for legislative districts the relevant constitutional standard is the section of the 14th Amendment which states, “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” [2] In 1962 Baker v. Carr brought forth the issue of whether the Supreme Court could decide issues of legislative apportionment in regards to the Tennessee state legislature. The ruling affirmed that the Supreme Court had the power to review issues of apportionment for state legislative districts and ruled that they were to be apportioned on the basis of total population. [7] The court added that “an individual’s right to vote for state legislators… is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.” From which emerged the saying “one person one vote.”[8] In 1966 Burns v. Richardson, a case regarding a districting plan in Hawaii, brought forth the same issue of apportionment and legislative districts and, in this case, the Supreme Court ruled in favor of a provisional plan apportioning on the basis of voter population, not total population, because of the large number of military personnel stationed there temporarily. Since then the way populations were to be gauged was left up to the states. [8]

On December 8, 2015 the case of Evenwel v. Abbott was brought before the U.S. Supreme Court. The case was based on the state legislature’s reapportionment of districts for the purpose of electing state legislators. Under the Texas Constitution districts are reapportioned after every census. The redistricting plan passed by the Texas legislature was deemed by the district court to be in violation of the Voting Rights Act. An interim plan for the 2012 primaries was subsequently adopted and eventually became law. Sue Evenwel and Edward Pfenniger, registered Texas voters, are the plaintiffs in the case against defendant, Governor of Texas, Greg Abbott, and argue that the new plan violates the notion of “one person, one vote,” upheld by the 14th Amendment and the Supreme Court. They claim that because their districts are based on total population, rather than just the population of eligible voters, the districts vary wildly in total voter population. The issue before the Supreme Court then is whether the state legislative districts should retain their current method of apportionment, which is based on maintaining equal total populations within each district, or adopt a newer system, which seeks to maintain an equal number of voters in each district. [10]

During oral arguments, the Plaintiffs argued that basing districts on total population rather than voter population was causing vote dilution, so much so, that there was a fifty percent difference in the number of eligible voters from one district to another. The justices posed many questions and provided valid rebuttals. Justice Ginsburg brought forth the argument of tradition and the fact that all previous Supreme Court rulings had upheld the notion of apportionment based on total, not on voting, population, with the exception of Burns, which was an unusual case. Justice Sotomayor pointed to the issue of representational need and the fact that representatives are the voice of the citizens and even the non-citizens of their state, not just the voters.

The Plaintiffs countered with the argument that their suit was regarding individual right. Basing their arguments off Gray v. Sanders, they postulated that regardless of how large the non-voter population is in any given district they will all have access to their representative, however, if there are more eligible voters in one district than another, those who are of greater multitude have a vote that is effectively worth less than those who are fewer in number. Providing a particularly complex counterpoint, Justice Kagan and Ginsburg then argued that, according to the Plaintiff, women and minorities should not have been counted in considerations of representation from 1868 to 1920; an issue that the Plaintiff considered to be a separate problem. Breyer brought forth the point that looking at the constitution as a whole what the Framers devised was the kind of democracy where people would have a proportionate representation in Congress regardless of whether or not they chose to vote. And additional concern of the court was the practicality of changing a longstanding principle for calculating representation and whether apportionment would be based on the voting age population or on the registered voters. The Plaintiffs proposition leaned towards apportionment based on the voting age population. [11]

The defendants began their argument by citing the well-known message of the 14th Amendment, which states that Representatives are apportioned on the basis of population. Roberts to this said, that the clause is referred to as “one person, one vote,” which seems specifically to imply that the clause was made to protect voters. The defendants claimed that the Plaintiffs have no substantial legal claim since Texas followed the federal law and did not engage in any sort of invidious vote dilution. Justice Alito broke down the argument in favor of the defendants into two pieces: that total population is an accurate approximation of voters and therefore that one person one vote is appropriately met through population, and that total population serves the purpose of meeting representational equality. Alito also made the point that these two arguments come in conflict with each other and that voter representation often does not lead to representational equality and vice versa. Kennedy also contemplated why both population and voter proportions couldn’t be a consideration in apportionment, to which the defendants responded that if both the total population and voter population were required by law to be equal in districts then other redistricting factors like compactness, continuity and keeping communities together would have to be ignored. [11]

The underlying issue in Evenwel v. Abbott is whether equal protection affords individuals equal representation regardless of citizenship status, age, or race, or instead if equal protection is a protection of the voting public, which seeks to preserve the voting power of the individual voter. Take for example two districts, districts A and B, both with equal populations, however district A has a large pool of eligible voters and district B has a voting pool only half as large. Since each district elects one legislator to the state congress, a voter in district B has twice the decisional power, in making their choice for legislator than a voter from District A. However looking simply at the raw populations of the two districts since they are equal in number each individual has the same fraction of access to their legislator, regardless of which district they live in. Say that the Plaintiff won in this case, and that we based apportionment on effective voting population, rather than total population; some districts with a small population of voters and a large population of children, teens, or inmates, who are not eligible to vote, will have to divide up their legislator effectively amongst more people than a district whose voter population is very close to the raw population. Although the current system in place may dilute the voting individual’s vote, a new system may dilute the average individual’s access to and effective percentage of representation.

In Evenwel v. Abbott the legal question is a complex one, but there are also political ramifications if the decision were to be made in favor of the plaintiffs. The Cato Institute, a conservative organization, stated in its Amicus Curiae brief for the Plaintiff, “a relatively small constituency of eligible Hispanic voters … have their votes ‘over-weighted’ and ‘over-valuated,’ effectively diluting the votes of eligible voters” in districts with fewer Latinos.  Latino voters thus have “disproportionate power.” [12] The Leadership Conference on Civil and Human Rights and six other civil rights groups argued in their Amicus Curiae brief for the defendant, “In our democracy, elected officials do not simply represent the people who voted for them, or the people who are eligible to vote. They are expected to and do, represent the interests of all of the people who live in their respective districts. After all those who cannot, or do not vote are still impacted by government in a wide variety of ways.”[13] Should the Plaintiffs win it will produce older and in larger parts whiter districts, which would ostensibly benefit conservative candidates. [8]

Regardless of the partisan politics on this issue there seem to be a variety of practical and legal reasons why voting in favor of the Plaintiff seems most unlikely on the part of the Supreme Court. Considering the wording of the 14th Amendment, the Constitution favors districts based on total raw numbers not on voters at the federal level. Why would the case be any different for state districts? Had this been the intention we assume the Framers would have specified it. If states were to follow the example set by the federal government, where all Congressional districts are decided on the basis of total population, not voter population, then the Supreme Court should vote in favor of the defendants.

Additionally there is the practicality of the issue. Granting Texas the right to apportion districts on the basis of the voting public would create a slew of hard to legislate and execute implications. The redistricting issue in Texas is very complex and districting by voter rather than by total population may compromise the other requirements of redistricting. Lastly, and most importantly, as Justice Sotomayor pointed out there is not just a voting interest here, but a “representational interest” that is essential. As Justice Breyer put it, “what we actually want is the kind of democracy where people, whether they choose to vote or whether they don’t choose to vote, are going to receive a proportionate representation in Congress.” [11]

Notes

[1] U.S. CONST. art. I § 2, cl. 3. http://www.archives.gov/exhibits/charters/constitution_transcript.html

[2] U.S. CONST. amend. XIV https://www.law.cornell.edu/constitution/amendmentxiv

[3] Proportional Representation, HISTORY, ART AND ARCHIVES OF THE UNITED STATES HOUSE OF REPRESENTATIVES (February 7, 2016) http://history.house.gov/Institution/Origins-Development/Proportional-Representation/

[4] Apportionment: A Little History, CENTER FOR ACADEMIC SUCCESS UNIVERSITY OF ALABAMA (February 7, 2016) http://www.ctl.ua.edu/math103/apportionment/apphisty.htm

[5] The Permanent Apportionment Act of 1929, HISTORY, ART AND ARCHIVES OF THE UNITED STATES HOUSE OF REPRESENTATIVES (February 7, 2016) http://history.house.gov/Historical-Highlights/1901-1950/The-Permanent-Apportionment-Act-of-1929/

[6] Geography: About State Legislative Districts, THE U.S. CENSUS BUEARU (February 7, 2016) https://www.census.gov/geo/maps-data/data/aboutsld.html

[7] Baker v. Carr, OYEZ (February 7, 2016) https://www.oyez.org/cases/1960/6

[8] Garrett Epps, One Person, One Vote?, THE ATLANTIC, May 31, 2015 http://www.theatlantic.com/politics/archive/2015/05/one-person-one-vote/394502/

[9] Reynolds v. Sims, OYEZ (February 7, 2016) https://www.oyez.org/cases/1963/23

[10] Evenwel v. Abbott, OYEZ (February 7, 2016) https://www.oyez.org/cases/2015/14-940

[11] Evenwel v. Abbott, 14-940 U.S. (2015) http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-940_c07e.pdf

[12] Brief of The Cato Institute and Reason Foundation-Appellants, Evenwel v. Abbott, No. 14-940 (U.S. 2015). http://object.cato.org/sites/cato.org/files/pubs/pdf/evenwel-filed-brief.pdf

[13] Brief of the Leadership Conference on Civil and Human Rights-Appellees, Evenwel v. Abbott, no. 14-940 (U.S. 2015) http://civilrightsdocs.info/pdf/briefs/Evenwel.pdf

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