Speculation that a contested Republican convention may choose a nominee who struggled at the polls, or was not even on the primary ballot, has once again reignited the debate about the nature of American democracy. Yet for all of the media’s focus on delegate counts, Monday’s Supreme Court decision in Evenwel v. Abbot addressed a far more critical issue: the meaning of “one person, one vote.” In a representative democracy, the people elect representatives, from local officials to the President of the United States, to speak on their behalf and protect their interests. The question before the Supreme Court in Evenwel was who do those officials represent: the people, or the voters?
States have a significant influence over the electoral process. Despite constitutional guarantees prohibiting discrimination such as on the basis of race or gender, the qualifications for voting are historically a state and local issue. For example, in local elections in Silver Spring, Maryland, the voting age was lowered to sixteen and the franchise granted to non-citizens, even though the standard for national elections remains citizens over the age of eighteen. State legislatures also control redistricting. The Constitution requires that every ten years, the government conduct a census so that congressional representation, which is based on population, may be reallocated. Redistricting is the process of drawing boundaries for the congressional state legislative districts after that reallocation. This process can be highly partisan, and has been the basis for most of the high profile voting cases, including Evenwel, to come before the Supreme Court in recent years.
Since the 1964 decisions in Reynolds v. Sims, 377 U.S. 533 and Wesberry v. Sanders, 376 U.S. 1, redistricting has been governed by the principle of “one person, one vote.” Under “one person, one vote,” voting districts must have roughly the same population (usually the average, +/- 5%), and every state currently uses total population as the standard. However, the plaintiffs in Evenwel argue the standard should instead be eligible voters, asserting some Texas state Senate districts have nearly 50% more eligible voters than others.The question before the Court was thus whether “one person, one vote” required districts have an equal population, or an equal number of eligible voters?
In a decision unanimously upholding the Texas map and population-based approach, Justice Ginsburg, writing for the majority, noted that “[b]y ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.” This also serves to protect the interests of non-voters, such as children who attend public schools. Notably, however, the Court made clear it did not address the constitutionality of a redistricting map based on eligible voters, instead holding only that a total population based approach was constitutional. It is thus quite possible this issue will return to the Supreme Court, particularly given that the State of Texas’s brief took the position that states could adopt either approach. This is a particularly daunting prospect for many civil rights groups, who argue that an eligible voter standard would significantly diminish the clout of Hispanic communities with proportionally higher numbers of non-citizens and children, and certain African American communities with higher felony disenfranchisement rates. Thus while the issue may have been settled for today, it remains a question to keep an eye out for in years to come.