My primary piece on Evenwel v. Abbott, No. 14-940, One-Person/One Vote. Really?, ran on December 7, 2015. (It also discussed Harris v. Arizona Independent Redistricting Commission, No. 14-232, which has not yet been decided.)
Yesterday, in an 8-0 decision, the Court affirmed the decision of a three-judge panel, holding that Texas need not have state legislative redistricting maps based on voters, as opposed to people. Justice Ruth Bader Ginsburg wrote the opinion for the Court. Justices Clarence Thomas and Samuel Alito concurred in the judgment.
The decision represents good news for Democrats and those who believe many voices should be heard. But it’s not especially bad news for the other side.
For decades, legislative districts have been established on the basis of population. People. Battles have been fought, but they have revolved around how legislative districts get shaped, how close to equal and compact they need to be, etc. In the modern era, pre-Evenwel, no one suggested that the very character of people should be part of the mix.
Now, in a world in which political power seems to rule, the plaintiffs wanted the Court to mandate that Texas base legislative districts on voters, and not on people. And the Court said no.
Commentators have had a field day with Evenwel. For example, Steve Benen for The Rachel Maddow Show wrote ‘One person, one vote’ prevails at Supreme Court. In it he stated:
In other words, this is about boosting the voting power of Republicans. No one on the Supreme Court was willing to play along.
Not so, actually. Yes, Republicans want to count voters to increase their power, for it’s a generally accepted principle that non-voters share Democratic Party issues and values. Alas, the Evenwel majority opinion does not tell states they cannot count voters. Instead, the opinion states:
[b]ecause history, precedent, and practice suffice to reveal the infirmity of appellant’s 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.
The Court punted on whether Texas, and every other state, can do what the plaintiffs wanted the Court to make Texas do. Nothing prevents Texas from counting only voters, and taking its chances with the Court. Texas is the state which redistricted in 2003, despite having done so soon after the completion of the 2000 Census. That was an aggressive—and successful—move. So there is no reason not to expect from Texas, and other states, an affirmative response to the invitation for further process before the Court on this issue.
The decision was 8-0, reflecting the absence of Justice Antonin Scalia, or his replacement. Josh Marshall for Talking Points Memo, in Big, Big Deal, writes:
The big question in my mind is whether this would have been 9-0 or 8-1 decision if Justice Scalia were still alive.
Justice Scalia was silent during the December 8, 2015 oral argument in Evenwel, so we don’t have any way to know with even a bit of certainty where he was on the issue when he died. Generally, Justice Scalia was not, simply, another vote; instead, he was the leader of the conservative side of the Court, through and through.
Justice Thomas, in his concurring opinion in Evenwel, is hardly opposed to the notion of voter-based redistricting. And Justice Alito was clearly not comfortable with the majority opinion in its entirety. Thus, while it looks like Justice Scalia was taking a pass on this case—he was not often silent at oral argument—this might well have been a 6-3 or 5-4 decision, had Justice Scalia not died.
In sum, the Evenwel decision buys time, before the mischief-making returns. But it will return!