The Independent View: How Should We Measure One Person, One Vote?

A half-century after the Supreme Court declared the democratic ideal that the voters within a state should be equal to each other, it has indicated that it is finally ready to say how that should be measured. “One person, one vote” was a very simple constitutional slogan. But what does it mean, in the real world of sorting out election opportunity?

Next Tuesday, December 8, the Court will take up the case of Evenwel v. Abbott, a Texas case in which two voters have complained that, because they were placed in two State Senate districts with many other voters, their votes count for less than those in other districts with fewer voters eligible to go to the polls. Their plea raises the profound question, as important in practice as it is in theory: what, in a democracy, does representation mean?

The Supreme Court famously said, in 1964, that “legislators represent people, not trees or acres.” That was its basic explanation for getting away from the traditional pattern of mapping election districts by geographic area, rather than by the people who are to be represented.

But the lingering question is: who are “the people” who are represented?

- They could be the voters who actually go to the polls to exercise that right.

- They could be the people eligible to vote, many of whom stay away from the polls.

- They could be only U.S. citizens.

- They could be all the people, even those who do not have the right to vote, because they are children, non-citizens, or prison inmates, for example.

Actually, when the Supreme Court's 1964 decision in Reynolds v. Sims first mandated equality, it used the idea of population and voters interchangeably. “The overriding objective,” it said, “must be substantial equality among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the state.”

It is possible, some mathematicians argue, that a legislature, drawing up districts for election purposes, can achieve both absolute equality of population among the districts and absolute equality among the voters in those districts. That can be done, they say, because census data is now very precise and computer technology is exceedingly sophisticated.

So how would it be possible, then, if population is made equal among districts, to have the power to vote come out unequally? Lawyers for the two Texas voters whose appeal the Court will hear next week have provided examples. Their case arose when the State Legislature was drawing new districting maps for electing the thirty-one members of the State Senate following the 2010 census.

Here is their hypothetical example: “The legislature could have adopted a Senate map containing thirty-one districts of equal total population without violating the one-person, one-vote principle, even if thirty of the districts each contained one voter and the thirty-first district contained all other voters in the state.”

That was the hypothetical. The real arrangement they were complaining about began when the legislature chose total population as its starting point, then simply divided it by thirty-one, giving an “ideal” population measure for each district. Then, taking into account local arrangements such as county lines and existing district maps, the legislature moved the district lines around to get within the ten percent shy of absolute mathematical equality that the Supreme Court has said is permissible.

In Texas, this meant there was only an 8.4% difference between the population of the largest Senate district and that of the smallest one. That was enough, a federal court concluded when the maps were challenged, to achieve the “one person, one vote” objective.

But the two voters wanted the legislature to start and finish with some measure of voters, not total population. The legislature, under this scenario, would have to take into account the numbers of actual or potential voters put in each district, using voting age, voter registration or participation, or citizenship as a measure, and try to even them out. But, using total population, the resulting maps crowded a lot of non-voters into some districts, while leaving others with fewer voters.

Because each district would elect only one State Senator, the power of each voter’s ballot would be greater in those districts with fewer actual or potential voters, than those who wound up in districts with larger numbers of voters. For those in the latter group, their votes were said to be diluted, each ballot had less electoral clout when cast.

The two voters making the challenge in this case were Sue Evenwel and Edward Pfenninger. Evenwel lived in what wound up as District 1. Using any one of seven measures of voters, Evenwel’s vote would count as only about forty percent as effective as in an “ideal” district,total population divided by thirty-one. Pfenninger landed in District 4, and using the same voter measures, his vote was calculated as between thirty and forty percent as effective as in an “ideal” district.

That, their lawsuit contended, violated the “one person, one vote” principle because they were not treated equally with some of their neighbors in Texas. “A statewide districting plan that distributes voters or potential voters in a grossly uneven way,” they argued, “is patently unconstitutional under Reynolds v. Sims and its progeny.”

A three-judge federal district court rejected their challenge, saying that the Supreme Court had left it to the legislatures to decide which metric to use in drawing new districting maps. The one constitutional measure, they said, was that the metric chosen not discriminate against selected groups of voters.

Taking the case on to the Supreme Court, the two Texas voters posed a single question: did the principle of “one person, one vote” give them a court-enforceable right “ensuring that the districting process does not deny voters an equal vote”? It is voter equality, they insisted, that the Constitution mandates.

Their petition cited a now-famous dissenting opinion by Ninth Circuit Judge Alex Kozinski in 1991, declaring that the celebrated phrase proclaimed by the Supreme Court “is an important clue that the Court’s primary concern is with equalizing the voting power of electors, making sure that each voter gets one vote, not two, five, ten, or one-half.”

The Court agreed on May 26 that it had jurisdiction to hear the case from a three-judge trial court, and granted review.

The case is set for argument at 11 a.m. next Tuesday. William S. Consovoy, an attorney with Consovoy, McCarthy and Park PLLC in Arlington, Va., will represent the voters, with thirty minutes of time. Texas’s Solicitor General, Scott A. Keller, will argue for the State, with twenty minutes. Deputy U.S. Solicitor General Ian H. Gershengorn will represent the Federal Government, with ten minutes.

I think since an elected official should represent all the people in their covered area, I would use population and not voters as the test.