The US Supreme Court issued an important unanimous 8-0 ruling today in a case involving voting rights. States are required to draw electoral districts that have roughly equal numbers of people. The question is whether the ‘people’ who count should be every resident (even those who cannot vote) or just eligible voters. The former has been the universal practice, since the argument has been that government serves everyone, voters and non-voters alike.
But in Texas, that practice has been challenged by those who say that the basis should be just eligible voters, using citizen-voting-age-population (CVAP) data obtained from the annual statistical sample of the U. S. population taken by the Census Bureau’s American Community Survey (ACS). Such a change would result in fewer districts allocated to cities and other urban centers and more for rural and suburban populations.
Today the court ruled that states can use total population as the basis but it did not rule on whether they are required to do so. The court essentially said that the constitutionality of whether states can use the voter-eligible data instead of total population data would have to await another case. All it was saying at this time was that using total population was constitutionally permissible and it was not ruling on whether other possible methods were required or permissible.
Here are some passages from justice Ruth Bader Ginsburg’s opinion.
Texas, like all other States, draws its legislative districts on the basis of total population. Plaintiffs- appellants are Texas voters; they challenge this uniform method of districting on the ground that it produces unequal districts when measured by voter-eligible population. Voter-eligible population, not total population, they urge, must be used to ensure that their votes will not be devalued in relation to citizens’ votes in other districts. We hold, based on constitutional history, this Court’s decisions, and longstanding practice, that a State may draw its legislative districts based on total population. (p.1)
Today, all States use total- population numbers from the census when designing congressional and state-legislative districts, and only seven States adjust those census numbers in any meaningful way. (p.4)
Consistent with constitutional history, this Court’s past decisions reinforce the conclusion that States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. (p.15)
Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries. Appellants have shown no reason for the Court to disturb this longstanding use of total population. (p.18)
In sum, the rule appellants urge has no mooring in the Equal Protection Clause. The Texas Senate map, we therefore conclude, complies with the requirements of the one-person, one-vote principle.15 Because history, precedent, and practice suffice to reveal the infirmity of appellants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population. (p.19)
Lyle Denniston suggests that this narrow ruling was crafted so as to gain the assent of a majority of justices, thus enabling it to avoid a 4-4 tie that sets nationwide noprecedent.
The ruling’s bottom line was unanimous, but the main opinion bore many signs that its warm embrace of the theory of equality of representation had to be qualified by leaving the states with at least the appearance of the power of choice, in order to hold together six solid votes.
Two of the eight Justices were clearly not satisfied with the rhetoric and some of the implications of Justice Ginsburg’s opinion, and only joined in the outcome. Those were Justices Samuel A. Alito, Jr., and Clarence Thomas, each of whom wrote separately. Thomas also joined most of Alito’s opinion.
Had Justice Ginsburg not held five colleagues in support of what her opinion actually said in the end, two — perhaps Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy — might have abandoned the common result. The result then might have been that the Court would have split four-to-four, settling nothing and releasing no opinion at all while leaving intact a three-judge federal district court’s ruling that Texas had the authority to base its state legislative seats on a division of the total population of Texas.
Texas actually had wanted the Court to allow it to use a total population metric, but to go further and give the states explicit constitutional permission to map out districts with equal populations of voters. The Obama administration also had wanted the Court to rule that the Constitution actually required total population as the starting point for redistricting. Neither persuaded the Court to go take those further steps.
So today saw another victory, however small, over efforts to further strengthen the power of the traditionally Republican electoral base.