The Independent View: Evenwel v. Abbott One Person, One Vote Case

This post is from the Symposium: Ideology, partisanship, and the new “one person, one vote” case by Richard L. Hasen, a Chancellor’s Professor of Law at the University of California, Irvine School of Law. He blogs at Election Law Blog.

The Evenwel v. Abbott case is a new “one person, one vote” lawsuit, Ed Blum and his Project on Fair Representation undertook for the Evenwel plaintiffs: it is about taking power away from the states and having the Supreme Court overturn precedent by imposing through judicial fiat a one-size-fits-all version of democratic theory unsupported by the text of the Constitution or historical practice.

He writes:

The plaintiffs in Evenwel are asking the Court to require states to draw their legislative district lines by dividing up only voters, rather than considering the total population in each district. Lyle Denniston has thoroughly explained the background of this case: the Supreme Court first imposed the “one person, one vote” rule in cases in the 1960s, basing the requirement for states on the Constitution’s Equal Protection Clause; the Court did not specify in those early cases whether states must use total population, total number of voters, or some other measure in drawing roughly equal districts; and the Court in the 1966 case Burns v. Richardson approved Hawaii’s use of total registered voters rather than total population, saying that the issue of what to use as the denominator in drawing equal districts resided in the states.

For purposes of congressional apportionment (that is, the calculation of how many members of Congress each state receives based upon each state’s population), Section 2 of the Fourteenth Amendment requires the use of total number of persons, not voters. It seems quite odd to require counting all people for purposes of dividing up representation among the states but not for drawing districts within each state.

If I am correct that Evenwel is not motivated by conservative principles, what’s behind it? It is hard to see it as anything but a Republican power grab. As I explained at Slate, a ruling that states may not draw legislative district lines taking total population into account will benefit rural voters over urban voters, and that by extension will benefit Republicans over Democrats. Urban areas are much more likely to be filled with people who cannot vote: non-citizens (especially Latinos), released felons whose voting rights have not been restored, and children. With districts redrawn using only voters as the denominator, there will be more Republican districts. And although Evenwel involves state legislative districts, the next claim will likely be for the same principle to be applied to congressional districts, affecting the balance of power in Congress.

It is the last paragraph I want to explore.

What will happen as a state's legislature changes after an election?

Under a Republican controlled legislature, they would want to use "One Voter, One Vote". But a Democratic controlled legislature, would want the "One Person, One Vote" method.

In New York, the locations with large prison populations, creates skewed congressional districts.

I do not have an answer. Do You?