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Posted by on Apr 4, 2016 in Featured, Law, Politics | 5 comments

One Person, One Vote – Still The Law


The headline you see above is used as a recitation of the popular media’s representation of today’s decision in Evenwel v. Abbott. While I use the headline for purposes of aligning with the popular construct, it does not accurately reflect the Supreme Court’s decision. The crux of Evenwel v. Abbott is not whether one person, one vote is the law of the land, but rather who counts as a person for purposes of enforcing the constitutional mandate.

This all goes back a very long way, preceding even the founding of the country. What is truly at issue here is a controversy that incorporates such divergent views as rural v. urban and agricultural v. industrial. It was discussed at the nation’s founding and again in 1865 following the Civil War as we struggled with the wording of the Fourteenth Amendment.

Even after the adoption of the Constitution and the Fourteenth Amendment much remained to be decided in terms of drawing districts, particularly for state legislatures. Some states simply assigned one seat per county without regard for population differences between rural and urban counties. This gave rural counties outsized influence and often prevented urban interests from being addressed. That it was based on the model of U. S. Senators, two per state, did not hold sway as the union of states was historically unique and required for the cohesion of the nation, unlike counties within a state.

Beginning in 1963, a series of cases resulted in the one person, one vote standard being adopted as the constitutional requirement. Those cases included Wesbury v. Sanders (1964) out of Georgia and Reynolds v. Sims (1964) out of Alabama. With the adoption of one person, one vote, the argument began to shift to who counts as a person for purposes of counting. Here’s what’s at issue. Do you count only those who vote? What about all those registered to vote? Perhaps all those eligible to vote, whether registered or not? Perhaps total adult citizen population?   Do children count? Legal immigrants? Illegal residents? Sheep? Ok, not sheep.

Historically, the test has always been total population, the theory being that all residents need to be represented, not just voters, adults or citizens. The plaintiffs in Evenwel argued that only eligible voters should be counted in apportionment for state legislative offices. The federal standard had been settled by the Fourteenth Amendment. In 1865 a proposal was made to include an eligible-voters requirement in the Amendment. That proposal was rejected in favor of this language from section 2 of the Fourteenth Amendment,

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

For practical purposes this means that the federal standard is a representational test, not an eligible voter test. Today, the Court extended that test to internal apportionment within state legislative districts, though there may be some wiggle room. Here’s why.

This case was brought on bizarre terms. Texas had apportioned based on total population, the long recognized standard. Plaintiffs sought to declare the Texas total population metric unconstitutional and force Texas, and all other states, to adopt an eligible voter standard. As Justice Ginsburg pointed out in her majority opinion, this would have upset long standing convention without any need to do so.

The real purpose appears to be that an eligible voter standard would have disempowered many urban residents, including particularly immigrants, both legal and illegal, while exaggerating the power of rural, mostly white districts. The opinion was six joining the majority opinion, with two concurring.

So where’s the wiggle room? Were a state to adopt an eligible voter standard and argue for its constitutionality, without impacting other states, it would require a different analysis, though not necessarily a different result.

The case in full.

Photo credit: 2016-02-20_04-46-00 via photopin (license)

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