Evenwel v. Abbott: Supreme Court Maintains Status Quo on Redistricting

The Court left open the question of how a state must apportion its districts, so for now, both total population and total voting age population remain acceptable means of apportionment.  The Court’s decision today sided with Texas, a decidedly Republican-leaning state, and simply ruled that the way Texas had apportioned its districts was constitutionally acceptable.

One hundred and fifty years ago, the Framers of the Fourteenth Amendment debated our Constitution’s system of equal representation, affirming that every person counts in our system of representative democracy.  Earlier this week, in Evenwel v. Abbott, in a landmark opinion written by Justice Ruth Bader Ginsburg, the Supreme Court reaffirmed that the Constitution’s text and history secure equal representation for all, rejecting the far-reaching claim—never accepted by any court in history—that the Constitution requires states to draw districts composed of an equal number of eligible voters.  Evenwel’s bid to rewrite the Constitution to require excluding children and huge portions of the immigrant population from representation in state legislatures—a bid financed by Ed Blum—did not get a single vote.

In a unanimous opinion, the U.S. Supreme Court approved that last option in a Texas case this week, knocking down a contention that eligible voters were being disenfranchised by the unequal distribution of ineligible voters. The voters who sued the state — and who lost in this week’s decision — figured it this way: If the state’s Senate districts have equal populations, differences in participation within those districts allow some voters a greater say in who goes to the Legislature and who does not. In the district with more voters, each voter gets proportionately less of the decision than in districts were fewer voters take part. In Texas, the population difference between the largest and smallest districts is about 8 percent. If you instead count the number of eligible voters in each district, there is about a 40 percent difference between the biggest and the smallest. The Supreme Court didn’t buy that argument.

But it was probably not the final word because the court was silent on whether any other population formula could be used to draw new voting districts. And within hours, advocates on both sides of the issue indicated that Texas or another conservative-dominated state was bound to do just that, probably after the 2020 census triggers a new round of redistricting nationwide.