The U.S. Supreme Court once again is weighing into a fraught elections case — a case with enormous potential political repercussions. At issue is the meaning of the "one person, one vote" principle.
The federal Constitution orders the Census Bureau to count every resident in the country so that they all can be represented in districts of equal population in the national House of Representatives. The status of state legislative districts, though, is less clear.
In a landmark 1964 decision, the Supreme Court did away with grossly malapportioned state legislative districts by ordering that state legislatures be divided on the basis of "one person, one vote."
For a half century, the states have followed that ruling by designing state legislative districts roughly equal in population. Now, however, that definition is being challenged by a small cadre of conservative activists who contend that the one-person, one-vote principle is meant to equalize the number of eligible voters, not the total population in each district.
That would mean that children, immigrants — legal and illegal — and other groups, would be eliminated from the count.
On the steps of the Supreme Court Tuesday Texas State Senator Sylvia Garcia said that if the criterion for apportionment is voter eligibility, not population, her Houston district would grow from about 835,000 people to over a million. But at the same time the Latino population in her district would be reduced from 54 to 46 percent because children would no longer be counted and Latino families tend to be larger.
Winner and losers would not be entirely predictable, said Nina Perales, of the Mexican American Legal Defense Fund.
"In a place like Texas, primarily rural voters would benefit, older more Anglo populations, but on the other hand pockets of Anglo populations with lots of kids in the suburbs would lose out," she said.
The named plaintiffs challenging the Texas State Senate map are YouTube-using conservative preacher Edward Pfenninger, and Texas State Republican Executive Committee member Sue Evenwel. They are represented by the Project on Fair Representation, which two years ago persuaded the Supreme Court to strike down a key provision of the 1965 Voting Rights Act. Neither the challengers nor their lawyers came out on the Supreme Court steps to talk to reporters on Tuesday.
Inside, however, their lawyer, William Consovoy, told the justices that his clients votes count for as much as 50 percent less in State Senate races relative to the votes of those who live in counties with fewer eligible voters. Evenwell lives in a rural district with 584,000 eligible voters, while a neighboring district, equal in total population, has only 372,000 eligible voters. Therefore, he argued, her vote has less relative weight, and that the one-person, one-vote principle does not permit that.
"For a half century, population has been the legitimate standard, not voter eligibility," interjected Justice Ruth Bader Ginsburg. "We have never held to the contrary."
Consovoy replied that "tradition doesn't trump the individual rights of a voter...."
"What you're forgetting is the dual interest," Justice Sonia Sotomayor noted, adding that there is a voting interest, and a representational interest in state legislative districts.
"Why would the constitution mandate a total population metric for the house of representatives and then forbid it for state legislatures?" Justice Elena Kagan asked.
Ginsburg followed up, telling Consovoy, "In your interpretation of the Fourteenth Amendment, from 1869 till 1920, the state should not have been counting women" for the purposes of representation because they didn't have the right to vote.
Kagan pointed out that "the framers of the Fourteenth Amendment explicitly considered this question and ... made a decision." She quoted one of the authors of the Amendment as declaring that what matters in representational government is "numbers, not voters; numbers, not property, this is the theory of the Constitution."
In contrast, in this case, Kagan told Consovy, you are arguing "that States have to do it the exact opposite way."
Defending the Texas apportionment was the Texas Solicitor General, Scott Keller. He told the justices that all 50 states have drawn state legislative lines to create districts of equal population. Such a system would be unconstitutional, he said, only if it were targeted at limiting the voting power of a particular group.
"The principle is called one person, one vote," Chief Justice John Roberts observed. "That seems to be designed to protect voters."
Justice Samuel Alito said that the state could make either of two possible arguments. One is that total population figures are "a good enough proxy for eligible voters ... and that's what the census measures." The second is that "representational equality is the real basis" and therefore that's why you use population. So which one of these arguments is the state making, Alito asked.
Keller dodged the question, only to face a series of skeptical queries from the Chief Justice and Justice Anthony Kennedy. Why, they wanted to know, couldn't states draw legislative lines that both equalize total population and minimize deviations in the number of eligible voters.
Keller questioned the feasibility of doing that, noting that the challengers in this case had proposed no alternative map to do what they want. Indeed, he said they had failed to demonstrate that doing so was possible.
Representing the federal government, Deputy Solicitor General Ian Gershengorn followed up, telling the justices that trying to draw district lines based on both population and voter eligibility presents real data problems. As a constitutional matter, he said it would be "very odd" for the court to demand data that does not exist, that does not even have to be collected under the constitution, and that does not in fact accurately measure voter eligibility.
As to combining population and voting eligibility criteria, he noted that in New York, for instance, Manhattan has 9 percent children in its population, while Brooklyn has 30 percent children. To equalize both population and voter eligibility, he said, would require pairing up the two boroughs. This method, Gershengorn observed, would ignore classic political subdivisions, and other factors that the Court has said are "critical in redistricting."
At the end of the day, only one thing was sure. As big arguments go, this one was remarkably quiet. The usually verbose Justice Antonin Scalia asked not one question.
What that means is anybody's guess.