The Supreme Court of the United States has reaffirmed the “One person, one vote” principle in its April 4, 2016, Evenwel v. Abbott opinion. The Court unanimously held that the U.S. Constitution does not require Texas to draw voting districts based only on citizens of voting age, and upheld the current district apportionment based on population as a whole. However, Justice Ginsburg’s majority opinion did not address whether apportionment based on citizens of voting age is constitutional. Justices Alito and Thomas wrote concurrences expressing their opinions that apportioning voting districts based on citizens of voting age, while not mandated by the Constitution, is an acceptable form of apportionment under the Constitution.
[T]he Fourteenth Amendment does state that the number of representatives should be apportioned based on the “whole number of persons in each state.”
Two Texas voters, Sue Evenwel and Edward Pfenninger, challenged the apportionment of voting districts in the Western District of Texas in 2014. The plaintiffs relied on the Fourteenth Amendment for the proposition that voting district apportionment should be based on registered voters, and not on population as a whole. The Western District disagreed, and the plaintiffs appealed to the Supreme Court. At the Supreme Court the plaintiff’s challenge was unanimously rejected. The Justices all disagreed with the idea that the Constitution requires voting district apportionment based on citizens of voting age. However, a fundamental issue that may be back before the Court in coming years is whether the Constitution allows voting district apportionment based on citizens of voting age.
The Constitution does not speak specifically to voting district apportionment, but Section 2 of the Fourteenth Amendment does state that the number of representatives should be apportioned based on the “whole number of persons in each state.” The “one person, one vote” principle was created by the Supreme Court in Baker v. Carr and Reynolds v. Sims. Those cases require states to apportion their voting districts with substantially equal populations, so that each person has access to equal representation. However, the Constitution does not specify and the Court has never interpreted on whom the states must base apportionment. In fact, the Court left apportionment to the states in Burns v. Richardson, so long as state plans do not violate the Constitution. Every state currently bases their apportionment on total population, but there is a growing movement in the United States seeking to apportion voting districts by citizens of voting age.
Proponents of districting based on citizens of voting age argue that the “one person, one vote” principle is satisfied by accounting for those who are allowed to vote, and should not account for those who are not allowed to vote. Districting based on citizens of voting age would eliminate children, felons, those with mental disabilities, and non-citizens from consideration in apportionment. Instead, voting districts would be drawn based on national lists of either franchised or registered voters drawn from Census data. Proponents claim that considering these members of the population when apportioning voting districts devalues the votes of the electorate.
Critics also argue that basing districts on citizens of voting age disproportionately affects minorities.
Critics of districting based on citizens of voting age point out that those who are allowed to vote are not the only ones affected by elections. Elected officials are entrusted to represent their entire district, not just the voters. Their influence extends to public funding of education, transportation, etc. Even non-citizens have some interest their district’s representative, as non-citizens often rely on political influence in the process of naturalization or gaining a work permit. And ultimately, even though census data is as accurate as our government can provide, there are still many people who slip through the cracks.
Critics also argue that basing districts on citizens of voting age disproportionately affects minorities. The Voting Rights Act of 1965 prevents use of redistricting to dilute the ability of minorities to vote their preferred candidates into office. Using total population to draw voting district lines often allows legislators to draw “minority-majority” districts, in which minority populations make up a significant amount of the electorate. Some see this as a benefit to minorities, allowing them the opportunity, as the Voting Rights Act provides, to elect their preferred candidates.
However, the Cato Institute, a self-described “libertarian think-tank,” submitted an amicus brief in Evenwel v. Abbott challenging that assertion. The amicus brief points out that minority-majority voting districts can just as easily be created using voting district apportionment based on citizens of voting age. The Cato Institute also challenged the idea that minority-majority voting districts are a good thing for our electorate, arguing on page eight of their brief that “states’ tolerance of racial inequalities and imbalances across minority-majority districts is symptomatic of the balkanization that has become associated with section 5 [of the Voting Rights Act] cases.”
Ultimately, both Justices [Thomas and Alito] argued that the Constitution left it to the states to choose their systems of voting district apportionment.
Justice Ginsburg pointed out in her majority opinion that states have historically used total population as the standard for drawing voting districts, and that today every state continues to use the total population method. Justice Ginsburg also reasoned that our Constitution was founded, quoting James Madison’s Federalist 54, on the “fundamental principle . . . that as the aggregate number of representatives allotted to the several states, is to be . . . founded on the aggregate number of inhabitants; so, the right of choosing this allotted number in each state, is to be exercised by such part of the inhabitants, as the state itself may designate.” Finally, Justice Ginsburg highlighted the stake non-voters have in society, and that elected officials represent everyone in their districts, not just the voters. Six justices agreed with Justice Ginsburg on the narrow holding that the Constitution does not require voting district apportionment based on citizens of voting age.
While agreeing in the result, both Thomas and Alito wrote concurrences to clarify that while Texas did not apportion their voting districts based on citizens of voting age, the Texas Legislature could have chosen to use that means of apportionment. Thomas and Alito were seeking to provide a persuasive argument for the next question in America’s voting rights debate: whether “on person, one vote” allows states to apportion their voting districts by citizens of voting age. Both opinions focused on mixed nature of American representation, that we have both a proportionally system (the House of Representatives) and a non-proportional system (the Senate). Justice Thomas pointed out that the writers of the Constitution supported majority rule, albeit with checks protecting minorities. Ultimately, both Justices argued that the Constitution left it to the states to choose their systems of voting district apportionment.
At the end of the day, all the Justices agreed that the only issue to decide in this case was whether voting district apportionment by total population is unconstitutional, and agreed apportionment based on total population is entirely appropriate under the Constitution. However, the concurrences by Justices Alito and Thomas present the divergence of opinion on the Court, which turns on the level of deference owed the various state legislatures. Justice Ginsburg’s social and historical arguments for apportionment by total population, mentioned above, suggest that she strongly supports limiting the basis for voting district apportionment to total population. Justice Ginsburg had six Justices backing her opinion, including Chief Justice Roberts and Justice Kennedy, so it would appear for the time being that apportionment by total population has won the day.
As every state currently apportions their voting districts based on total population, and there is no guarantee that any state will change their apportionment plan in the near future, this issue may not reach the court again any time soon. But, if national opinions on whom to value when drawing voting district lines continues to diverge, this could quickly become one of the most important voting rights issues since the 1960s and Reynolds v. Sims. For now, the Court decided unanimously that basing voting districts on total population is not unconstitutional.