[EL] Breaking/Analysis: Big Victory for Voting Rights as #SCOTUS Rejects Plaintiffs’ Claim in Evenwel One Person, One Vote Case,Posted on April 4, 2016 7:15 am by Rick Hasen

Mon Apr 4 07:55:48 PDT 2016

    Breaking/Analysis: Big Victory for Voting Rights as #SCOTUS Rejects
    Plaintiffs’ Claim in Evenwel One Person, One Vote Case
    <http://electionlawblog.org/?p=81460>

Posted onApril 4, 2016 7:15 am 
<http://electionlawblog.org/?p=81460>byRick Hasen 
<http://electionlawblog.org/?author=3>

A unanimous Supreme Court in/Evenwel v. Abbott/ (with two Justices 
(Thomas and Alito) concurring in the judgment)has rejected the argument 
<http://www.supremecourt.gov/opinions/15pdf/14-940_ed9g.pdf>that states 
must draw district lines so as to equalize the total number of voters 
(as opposed to total population) in redistricting. A contrary ruling 
would have shifted power to Republican, rural districts, and away from 
Democratic urban areas (because non-citizens and children, especially in 
Latino areas in states such as Texas would be in Democratic areas). 
  Most importantly, in a big victory for the federal government’s 
position in the litigation, the Court did not say that a state can 
simply choose between doing total population or total voters in how 
district lines are drawn. Some expected that if the Court gave Texas the 
green light to choose, as Texas argued it had the right to do in this 
litigation, then in the next round of redistricting, it would have done 
so in order to increase the number of Republican districts in the state.

Justice Ginsburg wrote the opinion for the Court, and it is clear (as I 
had been saying) that Justice Scalia’s death did not affect the outcome 
of this case. It was clear from the oral argument that, despite what 
some said, this was not a case where the Court was likely to divide 4-4. 
Ed Blum’s position in this case to require total population was not only 
at odds with historical practice, it was not practically possible given 
the data that we have, and it would have led to terrible outcomes, 
including making it basically impossible to also comply with Voting 
Rights Act requirements for districts.

Justice Ginsburg’s opinion holds that districting using total population 
was consistent with constitutional history, the Court’s own decisions, 
and longstanding practice. A long section of Justice Ginsburg’s opinion 
recounts constitutional history, and relies on the fact that for 
purposes of apportioning Congressional seats /among/states, total 
population, not total voters, must be used. Plaintiffs’ argument in 
/Evenwel/was inconsistent with this practice. As to the Court’s own 
precedents, Justice Ginsburg acknowledged language supporting both total 
voters and total population as possible bases, but Court’s practice has 
been to look at total population in its cases. Further, that is the 
practice that states uniformly use, despite the occasional case such as 
/Burns v. Richardson/, allowing Hawaii to use a registered voter level.

Finally, Justice Ginsburg gives a sound policy reason for a total voter 
rule.  In key language, she writes that “Nonvoters have an important 
stake in many policy debates—children,, their parents, even their 
grandparents, for example, have a stake in a strong public-education 
system—and in receiving constituent services, such as help navigating 
public-benefits bureaucracies. By ensuring that each representative is 
subject to requests and suggestions from the same number of 
constituents, total population apportionment promotes equitable and 
effective representation.” A footnote following this states that even 
though constituents “have no constitutional right to equal access yo the 
their elected representatives,” a state “certainly has an interest in 
taking reasonable, nondiscriminatory steps to facilitate access for all 
its residents.”

Perhaps the most important aspect of Justice Ginsburg’s opinion, and 
especially notable because it attracted the votes of not just the 
liberals but also Chief Justice Roberts and Justice Kennedy, is the 
Court’s refusal to give Texas the green light to use total voters if it 
wants in the next round of redistricting. The Court simply put the issue 
off for another day. It is hard to stress enough what a victory this is 
for plaintiffs. Many of us thought/Burns/already gave Texas this power. 
The fact that the Court leaves that issue open will serve as a deterrent 
for states like Texas to try to use total voters in the next round of 
redistricting, because it will guarantee major litigation on the question.

One notable aspect of Justice Ginsburg’s opinion is that it seeks to 
provide some clarity about when perfect equality is required and when it 
is not. Interesting, the Court ignores the /Tennant/case, which seemed 
to allow some deviation from perfect equality even in Congressional 
district cases, and seems to restore a 10% safe harbor for state and 
local redistricting. (See pages 3-4.) As Derek Muller points out on 
Twitter, this is a bad sign for the plaintiffs in the pending 
/Harris/case from Arizona, although the Court could still hold that the 
10% safe harbor does not apply when there is proof of partisan motive in 
deviating from perfect equality.

The concurring opinions coming from Justices Thomas and Alito are not 
surprising. Years earlier, Thomas dissented from the Court’s refusal to 
hear an earlier case on this question. Back when Alito applied to work 
at the Justice Department, he mentioned in his application his 
disagreement with the Warren Court one person, one vote cases. Justice 
Thomas, quite radically given the last 50 years, suggests there is no 
basis for a one person, one vote principle at all. This strikes me,as 
I’ve written, as a sound conservative argument, 
<http://www.scotusblog.com/2015/07/symposium-ideology-partisanship-and-the-new-one-person-one-vote-case/>unlikeEd 
Blum’s argument 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/05/evenwel_v_abbott_supreme_court_case_state_districts_count_voters_or_total.html>in 
Evenwel which would have restricted states even further in their choice 
of one person, one vote rules. I suspect that Justice Scalia could have 
concurred in Justice Thomas’s opinion.

Justice Alito does not go as far as Justice Thomas. Relying heavily on 
historical analysis, he would hold that a state can use total 
population, but casts serious doubts on the question (not reached by the 
majority) as to whether it must. He says the question whether a state 
could use some other measure “is an important and sensitive question 
that we can consider if and when we have before us a state districting 
plan that, unlike the current Texas plan, uses something other than 
total population as the basis for equalizing the size of districts.”

This was never a close case, as judged by the unanimous rejection of Ed 
Blum’s position in this case. So why did the Court take it?  As I’ve 
suggested inmy forthcoming /Stanford Law Review /piece, 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639902> the Court 
likely took this case for a purely technical reason: Ed Blum managed to 
maneuver it to come before a three judge district court with direct 
appeal to the Supreme Court. In those cases, a decision by the Court not 
to hear the case and to simply affirm is treated as a judgment that the 
Supreme Court agrees with the lower court result (though not necessarily 
its reasoning). The Chief Justice and others have said they feel 
compulsion to take these cases, as they are often reluctant to endorse a 
result without a full examination.

It might be said that liberals dodged a bullet. But as I’ve said since 
the beginning, this bullet was never close to hitting its victim.

/This post has been updated./

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
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