Attacks on minority voting will continue

The U.S. Supreme Court's recent unanimous decision sustaining the use of total population, rather than eligible voter count, as the basis for apportionment of state legislative districts brought a sigh of relief to those concerned about further incursions into minority voting rights. The unanimity of the court was seen as strong protection of the principle and the consistent practice of one person one vote apportionment based on the entire relevant population. That sigh of relief may be premature.

The case is Evenwel v. Abbott, 2016 DJDAR 3189 (April 4, 2016), brought by two Texas residents. The plaintiffs, voters, contended that even though the proposed redistricting of the Texas State Senate conformed to one-person-one-vote when total population was counted, the proper basis for apportionment should have been only eligible or registered voters. They argued that including nonvoters in the population base diluted their votes in relation to voters in other districts. Their suit challenging the new voting map was dismissed by the district court, and was appealed directly to the Supreme Court.

The Supreme Court, in an opinion by Justice Ruth Bader Ginsburg, unanimously affirmed the dismissal. The opinion found that the current system of using total population rested firmly on constitutional history, prior Supreme Court precedent, and settled practice. None of the plaintiffs' arguments came close to rebutting any of these conclusions.

But the court left the door open. The ultimate sentence of the opinion expressly reserved on the question whether the state may utilize voter rather than total population in drawing legislative districts. Though the plaintiffs could not show that a state's adoption of the standard practice violated the Constitution, the court's ruling did not preclude the possibility of another method, such as the one advocated by plaintiffs, being equally constitutional.

Which makes enthusiasm for the unanimity of the decision highly questionable. As was pointed out in these pages by Professor Erwin Chemerinsky, adopting the plaintiffs' theory would have a "significant adverse effect on representation of minority communities." In other words, advantage Republicans.

In fact, that was the whole point of the litigation, which was organized by conservative activists. The political fact is that urban districts with high percentage of ineligible voters are unlikely to vote Republican. Minimizing the voting power of these districts will increase the influence of the districts with higher percentages of Republican voters. Cities will lose power, rural and suburban areas will gain.

And there are two concurring opinions. Both Justices Clarence Thomas and Samuel Alito wrote to express their sympathy with the plaintiffs' fundamental arguments. Justice Thomas concurred with only the result in the case, and expressed some surprising views: "I write separately because this Court has never provided a sound basis for the one-person, one-vote principle."

The principle was set forth in the 1964 case of Reynolds v. Sims, and has been strictly followed ever since. It has been widely accepted that it states with classic simplicity and great economy of words a basic principle of representative government.

Thomas went on: "In my view, the majority has failed to provide a sound basis for the one-person one-vote principle because no such basis exists." How about democracy?

In fact there was a clear adoption of the principle of representation of all in the 14th Amendment. And the original Constitution itself provides for the representation of one large group with no voting power - the slave population. Even though the compromise at the Constitutional Convention limited the count to three-fifths of "such persons" they were at least partially included in the represented body.

All of which causeth one to wonder why the opinion failed to recognize that the equal protection clause itself, the constitutional provision at issue in Reynolds, does not mandate that all persons be represented, whether or not they have the right to vote. Could it be that Justice Ginsburg needed to leave that door open to secure the votes of Justices Thomas and Alito? (The Supreme Court's self-imposed rules of discipline require that it not decide constitutional questions before it is necessary to do so, and Justice Ginsburg may have been following that guidance. But the force of the arguments and precedents she recites in the opinion justify affirming that the current universal practices has become constitutionally required.)

And make no mistake about it this, like other attacks on minority voting, will be back. The sponsors of the litigation, the Project on Fair Representation (whose cases include the Abigail Fisher affirmative action case against the University of Texas), need only to find a red state willing to become redder by adopting the plaintiffs' suggestion (Texas comes to mind). If there is a reprise at least two justices are clearly willing to allow this incursion into minority voting rights.