[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

[Marty Lederman]

Is it fair to read pp. 12-13 of the slip opinion as characterizing *Wesberry
*as having established that total population *must be* the touchstone for
congressional districting equality?  If so, it's going to be awfully
difficult for a state to defend using CVAP or other population bases for
state legislatures--an argument that would depend upon reading the
Fourteenth Amendment to establish different notions of state and federal
"equal protection."  Of course, *Burns *establishes a very narrow
carve-out, for what the Court today called "Hawaii’s special population
problems”; but it's conspicuous that the Court does not even mention the
broad dicta in *Burns *about States' discretion to choose among different
population bases.

On Mon, Apr 4, 2016 at 10:55 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>
> 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 on April 4, 2016 7:15 am <http://electionlawblog.org/?p=81460> by Rick
> 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/>
>  unlike Ed 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 in my 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.*
> [image: Share]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D81460&title=Breaking%2FAnalysis%3A%20Big%20Victory%20for%20Voting%20Rights%20as%20%23SCOTUS%20Rejects%20Plaintiffs%26%238217%3B%20Claim%20in%20Evenwel%20One%20Person%2C%20One%20Vote%20Case&description=>
> Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme Court
> <http://electionlawblog.org/?cat=29>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.edu
> hhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160404/f2cd27e5/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160404/f2cd27e5/attachment.png>