Redistricting was back at the Supreme Court last week with oral argument in Evenwel v. Abbott, a case that seeks to radically change the way states equalize the population in drawing legislative districts. But during argument, the Court was unusually subdued. Perhaps that’s not wholly surprising.
It's been nearly 50 years since the Supreme Court last took up the issue of what the Equal Protection Clause requires when it comes to achieving population parity. A majority of the current justices hadn’t even started — much less graduated — from law school at the time of the Court’s 1966 decision in Burns v. Richardson. Not only were the justices approaching the issue fresh but there was a lot to wrestle with.
On one hand, Justice Ruth Bader Ginsburg wondered how a rule that apportioned districts by counting only voters, as urged by the Evenwel plaintiffs, could possibly be fair considering that for much of the nation’s history women, and many others, could not vote. Likewise, Justices Stephen Breyer and Sonia Sotomayor returned repeatedly to the fairness of erasing children from state redistricting maps. And Justice Elena Kagan found it hard to accept that the drafters of the 14th Amendment meant to require use of total population for apportioning congressional districts while forbidding states to use total population when drawing their own legislative districts — especially given strong statements from the drafters about how “numbers, not voters” was “the theory of the Constitution.”
On the other hand, Justice Anthony Kennedy was bothered by the notion that disparities in the number of voters could be completely ignored. Instead, he asked “why can’t you have both" and pressed to see if it might be possible to somehow balance both voters and population. Justice Samuel Alito similarly tested the outer boundaries of the Court's jurisprudence, asking about the constitutionality of a hypothetical district containing mostly non-voting prisoners and another with no prisoners.
But if some justices were inclined to change things, they also confronted some stark practical realities. For one, there is the unreliability of data. Plaintiffs counsel William Consovoy conceded that the number of registered voters “is not ordinarily going to be the right one” for determining the number of eligible voters, which is the yardstick they seek. Rather Consovoy suggested that the Court embrace citizenship estimates by the Census Bureau. After all, these are the numbers that are used to determine compliance with the Voting Rights Act, he maintained.
These arguments drew sharp pushback from the defendant, the state of Texas, and the U.S. government. Deputy U.S. Solicitor General Ian Gershengorn told the Court that citizen voting age population might be used in voting rights cases to determine whether a map diluted the voting power of minority communities, but that it was only one of more than two dozen factors in that analysis. Texas Solicitor General Scott Keller added that because the Voting Rights Act was concerned about voting effectiveness, it was natural to use citizenship data. But when considering apportionment, he said a broader range of concerns were implicated.
Perhaps an even bigger blunt reality emerged in response to questioning by Justice Kennedy about whether it would be possible to balance both voters and total population. Both Texas and the U.S. told the Court it would be all but impossible to draw such districts. “States would invariably have to disregard many other traditional redistricting factors, like compactness, continuity, [and] keeping communities together,” said Keller. The impact, moreover, would be huge because “not just 50 states but thousands of jurisdictions around the country, local jurisdictions, none of which use voter population as a measure for redistricting” would be affected, added Gershengorn. Even Consovoy conceded that many districts would have far larger populations than they do now.
In the end, Justice Kennedy and any others seeking a middle ground were left with a sharply drawn choice between accepting that districts might have an unequal number of voters or abandoning longstanding redistricting practices used in every state. Depending on what they decide, American redistricting could be in for an upheaval even greater than that which took place after the Court’s apportionment cases of the 1960s. Those cases shook up redistricting but revitalized American democracy by ending practices that underrepresented the booming urban and suburban communities where a majority of the nation had come to live. With Evenwel, the Court could go in the opposite direction.
If it upends a consensus on how to do redistricting that has endured for half a century, the Court ironically could sweep away many of the features of legislative districts that voters say time and time again are most important to them — things like having compact, community-centered districts. The effect would be dramatic, as a study by the Brennan Center found, requiring redrawing of every legislative map and a huge percentage of the nation’s legislative districts.
In short, the issue for the Court could not be more stark or more fundamental to American democracy.