Symposium: Taking voter equality seriously

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. He filed an amicus brief supporting the jurisdictional statement in Evenwel and will be filing another at the merits stage. Shapiro became a U.S. citizen just last year. Like most immigrants, he does a job few native-born Americans will: defending the Constitution.

The issue in a nutshell

The “one person, one vote” standard (OPOV) has become an axiomatic part of election law: Whatever mischief happens during the decennial redistricting process, states can’t draw districts with wildly disproportionate populations, such that a vote in lightly populated districts is worth much more than a vote in heavily populated districts.

It’s an easy principle to understand. You can avoid getting tied into knots determining whether a given regulation is “congruent and proportional” to the problem it addresses – and you can stay out of the thicket of “undue burdens” and other jurisprudential monstrosities.

Instead, OPOV solves the old “rotten borough” problem, where some British parliamentarians represented constituencies where very few – or no! – people lived. This became an issue in the United States as the country urbanized but depopulated rural areas maintained disproportionate voting power in state legislatures and congressional delegations. The Supreme Court ruled in the 1964 case of Reynolds v. Sims that political map-designers can’t dilute the franchise that way and instead must draw districts with roughly equal numbers of people.

In other words, each person’s vote should be equal, as guaranteed by the Constitution; nobody gets more votes based on wealth, education, occupation, sex, race, or geography. None of this is or should be controversial.

But a funny thing happened on the way to electoral utopia: just as the Industrial Revolution fomented radical population shifts, modern immigration patterns have created disparities in the number of voters per district. Just as it was intolerable for a rural district with 500 voters to have the same representation in a state legislature as an urban district with 5000 voters, it’s now constitutionally suspect to have that disparity between a heavily (non-citizen) foreign-born district and one with mostly native-born citizens. In each case, the Supreme Court must intervene to maintain voter equality.

While the specific case now before the Court, Evenwel v. Abbott, doesn’t present the stark 10:1 ratio in voting power I just stylized, the disparities are nonetheless significant: as detailed by the challengers to Texas’s districting map detail (see tables on pages 8-10 of their jurisdictional statement), some state senate districts deviate by as much as fifty percent from the ideal. That means that twice as many voters may elect a state senator in one district as in the smallest district.

In sum, regardless of one’s views of Evenwel’s particular facts, it has to be the case that disparities between the number of voters in state districts raises a constitutional issue. Otherwise, even 10:1 or 100:1 ratios wouldn’t be a problem. And if all we’re talking about here is line-drawing rather than first principles, then the challengers win.

Cato’s briefing

I don’t want to simply summarize the challengers’ arguments, so let me focus instead on two points that Cato is developing for our Evenwel merits brief: (1) the inaptness of the so-called “federal analogy” (which I’ll explain); and (2) that when the Voting Rights Act (VRA) conflicts with the Constitution, the latter trumps.

1. The federal analogy

When the Supreme Court was asked more than fifty years ago to uphold grossly disproportionate state legislative districts, Alabama argued that states should be allowed to implement a “little federal system” that would be “framed after the Federal System of government—namely one senator in each county of the state.”

The Court correctly realized then that “the federal analogy [is] inapposite and irrelevant to state legislative districting schemes.” After all, the states are “separate and distinct governmental entities which have delegated some, but not all, of their formerly held powers to the single national government,” whereas “[p]olitical subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities, [but rather] have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” Further, because “[t]he system of representation in the two Houses of the Federal Congress . . . [arose] from unique historical circumstances,” “the Founding Fathers clearly had no intention of establishing a pattern or model for the apportionment of seats in state legislatures when the system of representation in the Federal Congress was adopted.”

The Court is now presented with a new, twenty-first-century federal analogy, this time relating to the other chamber of Congress. Texas and its supporters are arguing that because the Constitution allocates congressional representatives by total population rather than voter population, states should be able to do the same for their own legislative districts.

This federal analogy works no better than the last one. Careful study of the original public meaning and history of both Section 2 of Article I and Section 2 of the Fourteenth Amendment show that the rule they established is one for dealing with separate states that possess a great deal of legal autonomy – first and foremost in defining for themselves who shall have the right to vote. Once again, states are asking that they be allowed to treat their legislative districts as if they were separate states.

Since the federal rule provides no support for state inequalities, we’re left back at the same simple principle the Court has consistently upheld, that “[t]he conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”

2. The Voting Rights Act vs. the Constitution

Another argument has been put forward to justify violating OPOV – that Section 2 of the VRA requires gerrymandering state legislative districts to create majority-Hispanic districts where possible, and that this “compelling interest” justifies the effect of unequal voter strength. This argument fails because even if the VRA does ask states to do such gerrymandering, such legislation can’t trump the Constitution. Where the VRA conflicts with the Fourteenth Amendment, the VRA must give way.

Let me explain. States are now caught in the inevitable trap of (1) maintaining majority-minority districts under complex, overlapping legal precedents and (2) administering electoral schemes that do little to advance racial equality while doing much to undermine voter equality. In the background of this conflict, there lurks a cacophony of precedent and oft-conflicting court-administered standards that have arisen from cases interpreting Section 2 of the VRA. Basic constitutional guarantees of equal protection inherent in the Fourteenth Amendment – such as OPOV – get lost in this thicket.

Avoiding racial discrimination is particularly difficult in jurisdictions where “total population” and “citizens of voting age population” (CVAP) – standard metrics for evaluating whether a district violates OPOV – diverge due to varied concentration of non-citizens. As I’ve described before, jurisdictions navigating between the VRA’s Scylla and the Constitution’s Charybdis are bound to wreck individual rights – here, voter equality – on judicial shoals.

Over the years, the Supreme Court has repeatedly recognized the potential for devaluing individual votes by drawing majority-minority districts in a manner that accords greater weight to minority votes in protected districts and diminishes the relative weight of voters elsewhere. In 2000, in Chen v. City of Houston, the Fifth Circuit also recognized this danger while ultimately ruling the other way. Nevertheless, here the special district court adhered to that flawed lower-court precedent – refusing to acknowledge CVAP as integral to OPOV and thus a required element of equal protection.

At least one Justice – Justice Clarence Thomas, dissenting from the denial of certiorari in the Chen case in 2001 – has already recognized the urgency of the problem: “Having read the Equal Protection Clause to include a ‘one-person, one-vote’ requirement, and having prescribed population variance that, without additional evidence, often will satisfy the requirement, we have left a critical variable in the requirement undefined.”

The VRA’s Section 2 and the Fourteenth Amendment have thus reached an impasse that has been highlighted by a conflict among lower courts’ application of OPOV. (The Fifth Circuit has held that states can choose either total population or CVAP on the grounds that the Equal Protection Clause is ambiguous, the Fourth Circuit reached the same conclusion but through the “political question” doctrine, and the Ninth Circuit held that states can only use total population, in a split 2-1 decision that provoked a strong dissent by Judge Kozinski.) It’s thus heartening that the Court took up Evenwel – and hopefully it will resolve that conflict once and for all by explaining the proper use of different population metrics. The noble principle of OPOV needs to be saved from the legal morass of Voting Rights Act jurisprudence.