When a state legislature takes census data and carves up new voting districts, how should it count who is in those districts? Should it count all residents, or only eligible voters? This is the question presented in Evenwel v. Abbott, a case that the Supreme Court recently agreed to take up in its next term. Evenwel is being billed as the biggest redistricting case in 50 years, since the Warren Court held that voting districts with large differences in total population are unconstitutional. The case has major stakes for who holds power at the federal, state, and local levels.
Evenwel was filed in 2014, as a challenge to the state senate district plan enacted in 2013 by the Texas state legislature and signed by Governor Rick Perry. The legislature used the results of the 2010 census to create senate districts that had roughly the same number of residents.
The plaintiffs in Evenwel claim that this plan violated the Fourteen Amendment, by denying their rights to have votes that are equal in weight to voters in other districts. The claim is that the votes of eligible voters in districts that have a large proportion of non-citizen residents have greater weight than those of voters in districts that have a large proportion of eligible voters.
The Evenwel plaintiffs are Texas voters selected by the Project on Fair Representation, a one-man conservative advocacy group created by Edward Blum, a former investment banker and current fellow at the American Enterprise Institute. (New York magazine has a good profile describing how Blum has engineered a number of the Roberts Court’s recent blockbuster cases on the role of race in voting and college admissions.)
A ruling that electoral districts can or must have equal numbers of eligible voters would have huge implications for the balance of power at the federal, state, and local levels.
The impact on state-level politics is perhaps most obvious. In the case, the Court will determine how state legislatures may draw state legislative districts. (At the NCSL Blog, Lisa Soronen notes that Evenwel follows on another case this term which questions the role of state legislatures in redistricting. Arizona State Legislature v. Arizona Independent Redistricting Commission presents the question of whether a state legislature can be completely cut out of the redistricting process.)
But allowing or mandating state legislatures to draw districts in a new way would be likely to affect the balance of political power at the federal level. Nate Cohn did some calculations and writes in the New York Times that such a system would put control of the House of Representatives even farther out of reach of Democrats. Nathaniel Persily of Stanford Law School observes that it would also require a new kind of census, one that counts who is and isn’t a citizen.
Finally, the case holds the potential to alter the balance of power between cities and suburbs, particularly in states like Texas with large non-voting immigrant populations. University of Texas law professor Joseph Fishkin argued in a Yale Law Journal article that a shift to districts based on equal numbers of eligible voters “would shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.”
In short, in deciding Evenwel, the Roberts Court will have the opportunity to rework how our democratic system functions — and who it tends to empower.