Since 1964, the law of the land has required that states draw their electoral districts according to population so that no person or group is disproportionately benefitted or harmed by those boundaries. Under this formula, known as “one person, one vote,” the U.S. Supreme Court has granted the states wide latitude in their methods for dividing districts. Many use the total population – an approach that has not, until recently, been challenged. In agreeing to hear a case from Texas that takes issue with the population-based districting method, the Supreme Court has an opportunity to more clearly define the “one person, one vote” standard. It should do so as inclusively as possible.
The case in question stems from a conservative group’s challenge of Texas’ districting protocol. Project on Fair Representation has argued that the state’s use of population in drawing district boundaries should be traded for a system that counts only eligible voters when dividing districts. Doing so would significantly shift voting power away from communities with large immigrant populations, which tend to have more children and non-citizens ineligible to vote. The plaintiffs, Sue Evenwel and Edward Pfenninger, claim that the current system dilutes the power of each individual vote. A three-judge panel rejected the complaint, citing states’ rights to use a population-based formula. Evenwel and Pfenninger appealed to the Supreme Court, which surprised observers by taking up the case.
In considering the matter, the court can more clearly articulate the intent of the “one person, one vote” doctrine that informs the population-based districting method widely in use for 50 years. It should do so in a manner that enfranchises more Americans, rather than allowing for more narrow parameters that strip political power from districts largely inhabited by minority populations. In the 1964 case that set the standard, Reynolds vs. Sims, then-Chief Justice Earl Warren wrote that as a representative form of government, ours cannot allow some votes to count more than others. Basing voting districts on the number of eligible voters therein would do exactly that.
Republican Texas Attorney General Ken Paxton reminded the Supreme Court of the lack of precedent for such a formidable shift, as well as the court’s duty under the 14th Amendment. “Plaintiffs cite no case in which a court has accepted their claim that the Constitution compels states to apportion their legislative districts based on voter population as opposed to or in addition to total population. And multiple precedents from this court confirm that total population is a permissible apportionment base under the Equal Protection Clause.” Further, as a practical matter, the eligible-voter scheme is hardly feasible. Population data is drawn from the U.S. Census – a relatively reliable source. There is no comparable database for eligible voters, and constructing one would be a considerable undertaking not easily executed.
The Project on Fair Representation is the project of Edward Blum, the conservative activist whose Shelby County vs. Holder case saw the Supreme Court throw out several components of the Voting Rights Act. He has a case pending that would erode affirmative action in university admissions. Blum’s focus, it seems, is less on fair representation than narrow representation. When considering the redistricting question before it, the U.S. Supreme Court should think more broadly than the plaintiffs and their backer.
