The End of Equal Representation?

Yesterday, the Supreme Court heard oral arguments in Evenwel v. Abbott – a case that has the possibility to scrap equal representation in state legislatures. This is kind of a big deal. See, the Constitution promises equal representation for everybody regardless of whether they can vote or not. I mean that makes sense, right? For example, kids can’t vote but their interests need to be represented in state legislatures and school boards.

For that reason, states draw voting districts to contain a substantially equal number of people to ensure that all are represented equally. If there are 1.5 million people in one district and 500,000 people in another district, then the citizens of the second district essentially have 3 times the amount of legislative power as those in the first district. It doesn’t take a genius to realize that wouldn’t be fair. Split the districts up so each has 750,000 residents and everyone in each district has equal representation in the state legislature.

This is exactly what Texas did in 2013 when it enacted its current redistricting plan. Ms. Evenwel presents to the Supreme Court that the Equal Protection Clause of the Fourteenth Amendment requires states to draw districts on the basis of the state’s voter population rather than its total population. They submit that unnaturalized immigrants, children, and others lacking access to the ballot shouldn’t be counted for purposes of legislative representation. As a practical matter, this would shift political power away from urban population centers toward more rural areas (whiter/more conservative) areas of the state. Not surprisingly, this case was initiated by conservative activists.

The good news is that no court has ever accepted similar claims that representation should be based on number of voters rather than number of people. At the end of the Civil War, the framers of the Fourteenth Amendment debated whether to base Congressional representation on the number of eligible voters or the total population – and many members of Congress proposed amendments to the Constitution that would have changed the basis of representation from total population to voter population. After months of debating, the framers ultimately concluded that the “whole population is represented; that although all do no vote, yet all are heard. That is the idea of the Constitution.”

It’s a really steep uphill legal battle for Evenwel considering that the guys who – you know – actually enacted the Fourteenth Amendment 150 years ago affirmed that representation is based on the total population. In oral argument this morning, Justice Kagan emphasized that “the framers of the Fourteenth Amendment explicitly considered this issue” and made a “clear, explicit choice” in favor of “equal representation” as a constitutional rule. The total population rule is the “most just and satisfactory” rule for our system of democracy and ensures that all persons – not just voters – are entitled to equal representation.

Justice Ginsburg pointed out that – if Evenwel’s view was the correct interpretation of the Constitution – women would have been denied representation in state legislatures from 1868 to 1920 because they weren’t eligible voters. Justice Breyer emphasized the fact that children – who can’t vote – are profoundly affected by policies decided upon by those who represent their interests in school boards and state legislatures.

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For Evenwel to win – for lack of a better word – she has to prove that Texas’ redistricting plan violated the Constitution. So the natural question here is how in the world do states violate the equal protection guarantee the Constitution provides when they draw election districts to represent all persons – which is exactly what the Constitution requires?! Evenwel’s attorney and the Court’s conservative justices didn’t have much of an answer to that question. Her attorney posed that the key issue is whether the one person, one vote rule affords eligible voters any reasonable protection. Chief Justice Roberts opined that the rule “seems to be designed to protect voters.”

Saying that the “one person, one vote” rule protects voters is one thing However, it’s completely different to suggest the Constitution’s guarantee of equal protection under the Fourteenth Amendment doesn’t include equal representation for minors, immigrants, and others without access to the ballot. Evenwel is suggesting that Texas is diluting the rights of its voters by drawing districts on the basis of total population. That’s an absurd suggestion. Voting districts based on total population recognize that our Constitution’s system of representation affords equal representation to voters and non-voters.

The thing with the Supreme Court is that you only need five people to agree with you to change the history of how the Constitution is interpreted forever. Five votes in favor of Evenwel would erase 150 years of equal representation for equal numbers of people. A decision is likely months down the road, but equal representation in state legislatures will be stripped from millions of people if the majority agrees with Evenwel.

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A lucky man. Also a lawyer. Classic oxymoron.

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