Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
The Supreme Court just heard arguments on a redistricting case based on a 15-year battle to preserve white voting power.
The Evenwel v. Abbott case argued Tuesday before the U.S. Supreme Court is about the drawing of legislative districts at the state and congressional levels, but it began as an issue among cities. For that civic genesis we can look back to the early 1960s when the Supreme Court ruled that states that continued to afford legislative voting advantages to rural areas, even as they were thinning out in population, over urban areas, which by this point were peaking in population, violated the U.S. Constitution’s Equal Protection Clause.
A more recent starting point, though, is the 2000 Chen v. City of Houston case, where some residents challenged the city’s drawing of council districts because it was based on total population as opposed to the number of people eligible to vote.
Using total population numbers has been the longtime standard for determining the appropriate size of congressional, legislative and local council districts. It’s what redistricting professionals have understood the “one person, one vote” maxim to mean, as established by SCOTUS in its 1964 Reynolds v. Sims decision. For that, SCOTUS established that “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people.” This meant that states needed to draw districts “as nearly of equal population as is practicable.”
Plaintiffs in the Evenwel v. Abbott case want to nix that understanding for good, changing the status quo so that states must try equalizing the number of people eligible to vote when drafting district lines. This would effectively shift the function of redistricting from protecting people represented by elected officials in the democratic process to only protecting those who vote, or can vote, for those officials. The adoption of that new standard would mean that children, non-citizens, and possibly many other citizens eligible to vote but who historically have been discriminated against at the polls would be zeroed out of the redistricting process.
A process like that could also end up disenfranchising people who are eligible to vote. Redistricting occurs every 10 years, in alignment with Census updates. But a lot can change in 10 years that would skew a redistricting process that’s based primarily on eligible voters. The next Census numbers come out in 2021, and will include people who were under 18 years old when the data was collected but are over 18 and registered to vote when Census figures are released. Same for people who aren’t full citizens at the time of Census data collection, but will be naturalized by the time of the Census release.
The areas most affected by such an abrupt change in redistricting policies would be those with huge populations of children. Richard Florida and Martin Prosperity Institute researcher Charlotta Mellander mapped which metros had the largest share of children this past summer and found that many in the top 10 were in Texas and other areas around the southwest. Redistricting consultant Andrew A. Beveridge, CEO of Social Explorer, mapped the jurisdictions that would lose the most political representation because of children and non-citizens erased from representation under new standards. Florida’s map overlaps pretty closely with Beveridge’s, showing the metros that would be most affected by a new redistricting standard, as seen below:
Latinos would get pinged the most under a voters-only redistricting process, and their representation was threatened before, in the aforementioned Chen v. City of Houston case. There, the challengers argued that what SCOTUS and Congress has really meant all these decades is “one person (who can vote), one vote.” It was a direct strike at the Voting Rights Act, which had compelled Houston to create four new council districts back in 1997, two majority-African-American, and two majority-Latino, to assure these minorities equal political representation. The lawsuit did not prevail in court.
The Evenwel v. Abbott case heard December 8 before the U.S. Supreme Court revisits that failed argument. Sue Evenwel is a white voter in Texas’s state Senate District 1 who believes her voting rights have been compromised because, while her district is roughly the same size as others, the number of eligible voters in her district is much larger than that of other districts.
Texas, of course, has one of the fastest growing Latino populations. And as seen in Florida’s maps above, it also has a large share of residents that haven’t turned 18 yet. Evenwel’s argument is that these two populations shouldn’t be considered as heavily as the voting population when drawing new lines. However, as the Leadership Conference on Civil and Human Rights wrote in a friend of the court brief, in favor of keeping districts defined in total population terms:
In our democracy, elected officials do not simply represent the people who voted for them, or the people who are eligible to vote. They are expected to, and do, represent the interests of all of the people who live in their respective districts. After all, those who cannot or do not vote are still impacted by government in a wide variety of ways. They attend public schools and universities, walk or drive along public streets, and utilize a wide variety of other government services and benefits. They pay taxes and are required to comply with the same laws that apply to voters. In short, they are important members of society, and should be entitled to representation in government according to their numbers.
Justice Sonia Sotomayor reminded the challengers of the “dual interests” of the “one person, one vote” adage during the Evenwel oral arguments, saying, “A state has to be able to say … the legislature is protecting not just voters; it’s protecting its citizens, or non citizens—the people who live there.”
Attorney William S. Consovoy, arguing on Evenwel’s behalf, said that in drawing its state senate districts Texas could have achieved both representational and voter equality, but instead went for the representation and supposedly robbed the voter. All states abide by total population numbers for redistricting purposes. What Evenwel’s attorneys are asking the Supreme Court to do is overturn how America has been doing redistricting for decades.
As voting rights expert Dan Tokaji tells CityLab, “I would be surprised if [SCOTUS] determines that the practice of every single state violates the U.S. Constitution.”
Chief Justice Roberts wondered if there was a way that redistricting line-drawers could create districts that achieved both equal total population numbers and voting-age population simultaneously. A number of redistricting experts have looked into this recently and concluded this would be extremely difficult.
Scott Keller, solicitor general for Texas, told the court that the only data available on voting-age populations is collected in the American Community Survey’s five-year reports, and that it was unreliable. The other problem with ACS data, said Ian H. Gershengorn, Deputy Solicitor General for the United States, is that unlike Census data, ACS data is not required by the Constitution to be collected.
“It would be very odd, we think, for the Court to demand, as a constitutional standard, data that does not even have to be collected,” said Gershengorn.
The ACS also does not count some voting-age populations, like those with felonies, those stationed overseas, or the mentally ill. In a report from Beveridge, on the impact of a new redistricting standard, he wrote:
Switching to a standard that uses a count of voters would be technically quite difficult because not only is it well known that voter lists and those who present themselves to vote in a given election vary greatly, but the handling of such lists is conducted by each local jurisdiction throughout the United States (most often counties). … It would force substantial shifts in many redistricting plans because while the case concerns state legislatures, it could impact how districts from congressional down to city and county are drawn.
There is plenty of data out there, though, on how a new standard could rob many Latinos and African Americans of their political representation, both as constituents and legislators. Carl E. Klarner, political science professor for Harvard’s Institute for Quantitative Social Science, broke down the racial implications of a ruling in favor of Evenwal. Among his findings:
- Utilizing [voting age population] for districting would result in a 12% reduction in Latino state legislators and a 13% reduction in Latino U.S. Representatives.
- Latino voting power in the mass public would decline by 4.6% in the U.S. House, 5.2% in state senates and 6.2% in state houses.
- Black state house members currently represent 11.9% of the county, but excluding non-citizens and citizen children would reduce this percentage to 11.4%. Black state senate members represent 10.1% of the country, but would represent 9.6% by utilizing [voting-age population numbers].
- African-American voting power in the mass public would go down between 1.3% in the U.S. House to 1.9% in state houses.
“Not surprisingly, white non-Latinos would benefit from the shift,” writes Klarner. “White non-Latino majority districts currently represent 69.8% of the county in state houses, but would expand to 72.0% by excluding non-citizens and citizen children. Majority white non-Latino state senate districts would go from covering 71.6% to 73.7% of the country. For the U.S. House, the shift would go from 73.3% to 75.0% of the country.
As the Leadership Conference on Civil and Human Rights wrote in their brief, “This would amount to a massive shift in political power away from groups that are already disadvantaged in the political process and further concentrate power in the hands of a white plurality that does not adequately represent the full diversity of the total population.”
This kind of shift makes sense if you’re part of the population in the U.S. that is shrinking as the nation grows browner. Changing the electorate in order to preserve political power is the logical move of a fading demographic. Consider in Texas, there have been a number of maneuvers to manipulate electorate numbers, including the state’s 2011 congressional redistricting plan and the passing of a photo voter ID law, both of which were found by federal courts to have a discriminatory effect on black and Latino voters.
Not to mention, the stripping of essential voter discrimination powers from the Voting Rights Act, which was orchestrated in part by attorney Ed Blum, who also is part of Evenwel’s legal team. He was also part of the legal team that contested redistricting in the Chen v. City of Houston case. Blum is also leading the legal team that’s challenging affirmative action in the Fisher v. University of Texas at Austin case, which SCOTUS is hearing just one day after Evenwel. He’s hoping to finish what he started in Houston, which is the preservation of white power.