The Independent View: Supreme Court Evenwel v. Abbott Oral Argument Analysis

The oral argument analysis is by Lyle Denniston, an Independent Contractor on the SCOTUSBlog, "Argument analysis: The choice — be bold or practical".

The Supreme Court does not shy away from being bold, at least some of the time, but sometimes the temptation is overcome by real-world practicality. That’s the way the Court seemed to be leaning on Tuesday when it considered throwing out the basis for drawing election districts for thousands of state and local legislative seats across the country, and starting over with a new standard. The problem: no one had a solid idea of how to make an alternative approach actually work.

The argument in Evenwel v. Abbott involves as fundamental an issue for a democracy as can be imagined: is everyone represented in elected governments, or are those eligible to vote entitled to special influence and the political power making that possible? The reason that such a choice is just now arising is that it is controlled by the half-century-old constitutional principle of “one person, one vote,” but the Supreme Court has never specified how to measure that equality.

For decades, the states have opted to divide up legislative seats, at the state and local level, by starting with total population, dividing that by the number of seats at stake, and then (with some modifications) coming up with roughly equal district populations. With modern census data and advanced computers, it is possible to come very close to mathematical parity, although the Court has allowed legislatures to come within ten percent of that, if they are making allowances for such permissible things as respecting county and city boundaries and even, to a degree, protecting incumbent lawmakers.

In fact, the principle of “one person, one vote” has been understood as equality of districts, rather than voters, on the theory that everyone placed in each district, whether eligible to vote or not, is entitled to be represented by the winner. But there is a political movement now, increasingly active, that is pushing for the famous phrase to mean voter equality, so the process would start with making sure that those who are qualified to vote should wind up with roughly equal numbers in each district.

If there is great disparity between the numbers of eligible voters between districts, the theory goes, there is no voter equality: those in districts with fewer voters have considerably more clout, at election time, than those with many voters, even if the districts’ total populations are equal. A district over-populated with voters is said to dilute the ballot strength of each, compared to some other districts’ residents.

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