WASHINGTON—All eight justices of the Supreme Court are leaving open the possibility of allowing states to draw lines based on citizenship or voter-eligibility, making this yet another issue likely to be decided by the outcome of the 2016 presidential election.
In Evenwel v. Abbott, the court’s remaining justices unanimously ruled that the Constitution permits states to draw legislative districts based on total population.
All 50 states draw their congressional and state legislative districts based on each decade’s census numbers for each state’s total population, which includes foreigners, illegal aliens, and other nonvoters. In Evenwel, Supreme Court lawyer Will Consovoy represented challengers Sue Evenwel, Edward Pfenninger, and the Project for Fair Representation, arguing that the Fourteenth Amendment’s Equal Protection Clause requires all eligible voters to have equal representation, and thus that only eligible American citizens should be counted when drawing state legislative districts.
Texas argued that the Constitution would allow states to draw their lines on citizenship or eligible voters, but also allowed Texas to do what all the states currently do, in using total population. By contrast, the Obama administration argued that the Constitution requires states to use only total population, and forbids any basis other than “one person, one vote.”
Liberal media commentators were quick to claim this week’s decision as a unanimous victory. But that simplistic boast misunderstands what the justices wrote, and how it could change over the next couple years.
Justice Ruth Bader Ginsburg wrote the opinion of the Court for six justices, including all the liberal justices, plus moderate Justice Anthony Kennedy and moderate-conservative Chief Justice John Roberts.
Even this liberal-dominated block explicitly held that it was not closing the door on the possibility that the Constitution would allow some basis other than total population. The challengers were only arguing that the Constitution required the basis of citizenship or voter eligibility, and the majority held that the Constitution does not definitely require those approaches.
Rejecting the challengers’ argument, Ginsburg wrote for the Court, “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.”
Ginsburg went on to make clear that the majority supported drawing legislative lines on the basis of total population, writing, “Nonvoters have an important stake in many policy debates,” citing how children, parents, and grandparents have an interest in services such as public education and welfare programs.
Justice Clarence Thomas refused to join Ginsburg’s opinion, writing separately to say that even though he concurred in the result, “this Court has never provided a sound basis for the one-person, one-vote principle.”
Thomas went on to write that the Constitution “leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government.”
In other words, Thomas declared, “The Constitution leaves the choice to the people alone—not to this Court.”
Referring to a watershed 1964 case where the liberal Warren Court revolutionized this area of constitutional law, Reynolds v. Sims, Thomas continued, “This Court’s post-Reynolds decisions likewise define the one-person one-vote principle in terms of eligible voters, and thus imply that States should be allocating districts with eligible voters in mind.”
Noting that the Constitution makes the states the “laboratories of democracy,” Thomas concluded, “That ‘laboratory’ extends to experimenting about the nature of democracy itself.”
Justice Samuel Alito likewise refused to join Ginsburg’s majority opinion, writing a separate opinion concurring in the judgment only, a separate opinion which Thomas also joined in large part.
Alito noted that every ten years, the “census required by the Constitution tallies total population,” and that, “these statistics are more reliable and less subject to manipulation than statistics concerning eligible voters.”
Referring to the Obama administration’s argument that “legislative districts must be equal in total population even if that results in districts that are grossly unequal in the number of eligible voters, a situation that is most likely to arise where aliens are disproportionately concentrated in some parts of a State,” Alito reasoned that this argument:
… implicates very difficult theoretical and empirical questions about the nature of representation. For centuries, political theorists have debated the proper role of representatives, and political scientists have studied the conduct of legislators and the interests that they actually advance. We have no need to wade into these waters in this case, and I would not do so. Whether a State is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state redistricting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.
Alito added in a footnote that no one is disputing that there should be equal representation. The question is, who should be equally represented? It could be (1) eligible voters, (2) all citizens (including, for example, children who cannot vote), or (3) all persons (including foreigners).
Justices Thomas and Alito are therefore very open to reconsidering “one person, one vote,” in a future case. And while not showing any enthusiasm for the idea, the justices joining the majority opinion did not shut the door on the possibility.
It is widely believed that the late Justice Antonin Scalia would have sided with Thomas and Alito, and may have even written one of the separate opinions, had he lived.
Given that two more justices are expected to leave the bench during the next presidential term, which added to Scalia’s seat could mean three new justices on the High Court, it is possible that if a conservative Republican is elected president in November, a very different Supreme Court could revisit this issue in a few years.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.