Evenwel v. Abbott: The Future of “One Person, One Vote” and the Role of the Courts

By: Jerry Yan (PO ’18) and Zachariah Oquenda (CMC ’16)

FOREWORD

It seems obvious that every citizen in the United States is entitled to an equally-weighted vote, regardless of age, race, sex, or socioeconomic status. But, as far as the courts are concerned, the concept of an equally-weighted vote did not emerge until relatively recently. In the early 1960s, the Supreme Court held in Baker v. Carr (1962) and Reynolds v. Sims (1964) that the Equal Protection Clause of the Fourteenth Amendment requires States to draw their legislative districts in a way that achieves “substantial equality of population,” boldly declaring that “[t]he conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address … can mean only one thing – one person, one vote.” The Court, however, was not particularly clear about what “substantial equality of population” meant. In the years that have followed since Reynolds, judges and politicians have, generally speaking, interpreted Reynolds to mandate the States to equalize districts’ total population – that is, States must draw their legislative districts so as to ensure that each district has the same number of persons regardless of citizenship status, age, race, sex, and so on.

But is that what “One Person, One Vote” really means? In December 2015, the Supreme Court heard arguments in Evenwel v. Abbott. The plaintiffs in that case sued Texas, arguing that equalizing total population is not enough to satisfy the “One Person, One Vote” standard. Instead, they maintain that States must equalize both the total number of people in the district as well as the number of voters in the district. They argue that failure to do so deprives some, especially those who live in districts with large populations of people who cannot vote (e.g., undocumented immigrants, children, convicted felons), of an equally weighted vote. In April 2016, the Court unanimously sided with Texas, and held that the Constitution does not require States to redistrict on the basis of voter population.

As part of the process of appealing a case to the Supreme Court, parties submit briefs arguing their case. This article is a mock brief for Evenwel v. Abbott. In this brief, we argue that States should not be required to equalize voter population and that the choice of what population to use when drawing legislative districts should be left to the States.

QUESTION PRESENTED

Does substantial equality of total population among a State’s legislative districts satisfy the “One Person, One Vote” standard required by the Equal Protection Clause?

INTRODUCTION

The Texas Constitution requires the­­ Texas Legislature to reapportion its senate districts after each federal decennial census.[i] In compliance with that mandate, the Texas Legislature used data from the 2010 census to create Plan S148 in 2011. Then-Governor of Texas Rick Perry signed Plan S148 into law in June 2011. A three-judge panel in the United States District Court for the Western District of Texas found that Plan S148 violated the federal Voting Rights Act (“VRA”) and issued an interim plan, Plan S172, for the 2012 election, which the Texas Legislature then permanently adopted.

Plaintiffs Sue Evenwel and Edward Pfenninger filed suit in the United States District Court for the Western District of Texas in 2014, alleging that Plan S172 violates the “One Person, One Vote” principle of the Equal Protection Clause. Conceding that Plan S172 achieves substantial equality of total population, the plaintiffs maintain that Plan S172 violates the Equal Protection Clause because it fails to achieve substantial equality of both total population and voter population. Plaintiffs suggest a variety of metrics with which to measure voter population, including citizen voting age population (CVAP), total voter registration, and non-suspense voter registration. Plaintiffs’ suit calls for requiring Texas to account for both voter population and total population in all future apportionment schemes, and stopping Texas from holding any elections using Plan S172.

The defendant, Texas Governor Greg Abbott, moved to dismiss the plaintiffs’ complaint for failing to state a claim the court could act on. The lower court ruled that plaintiffs must demonstrate that Plan S172 either (1) fails to achieve substantial equality of population between districts when using a permissible population base or (2) was created in a manner that is otherwise invidiously discriminatory against a protected group.[ii] The court noted that the plaintiffs conceded that Plan S172 achieves substantial equality of population among districts using total population as a metric.[iii] Accordingly, the court directed its attention to the question of whether Plan S172 is invidiously discriminatory against a protected group. The court found that the plaintiffs failed to allege facts that, if proven, demonstrate that Plan S172 is invidiously discriminatory against a protected group.[iv] The three-judge panel found that neither the Fifth Circuit nor this Court has ever endorsed the plaintiffs’ theory that any apportionment scheme that fails to achieve substantial equality in voter population and total population is unconstitutional.[v] Citing this Court’s decision in Burns v. Richardson (1966), the district court went on to hold that “a state’s choice of apportionment base is not restrained beyond the requirement that it not involve an unconstitutional inclusion or exclusion of a protected group.”[vi]

Finally, the district court held that the plaintiffs’ theory “is contrary to the reasoning in Burns and has never gained acceptance in the law.” The district court concluded that the plaintiffs’ complaint failed to state a claim upon which relief can be granted and granted Defendants’ motion to dismiss the case. The plaintiffs then appealed.

ARGUMENT

I. THIS COURT HAS NEVER HELD THAT STATES MUST EMPLOY A SPECIFIC POPULATION METRIC WHEN APPORTIONING STATE LEGISLATIVE DISTRICTS.

A. Reynolds v. Sims Left The Decision Of Which Population Metric To Employ Open To The States.

The “One Person, One Vote” principle articulated in Reynolds v. Sims (1964) requires States to apportion their legislative districts in a manner that achieves the “overriding objective” of “substantial equality of population among the various districts.”[vii] The Reynolds Court relied on total population as a metric for equality, finding that Alabama’s apportionment scheme violated the Equal Protection Clause because, among other reasons, the substantial variations in total population between districts were constitutionally impermissible.[viii]

Although the Reynolds Court used total population as its means of measuring equality, it did not at any point hold that States must employ total population, or any other single metric, as a metric for population equality. Instead, the Reynolds Court noted that “the matter of apportioning representation in a state legislature is a complex and many-faceted one” and declined “to restrict the power of the States to impose differing views as to political philosophy on their citizens.”[ix] Furthermore, Reynolds held that some flexibility may be accorded to States when drawing their own legislative districts, because “[w]hat is marginally permissible in one State may be unsatisfactory in another.”[x] The Reynolds Court cautioned that a certain degree of deference would only be given “so long as the resulting apportionment was one based substantially on population.”[xi] Nevertheless, the Reynolds Court did not elaborate upon what metric of population should be employed in an apportionment scheme.

As such, the “One Person, One Vote” principle in Reynolds is a constitutional floor for State redistricting plans. Reynolds placed the bar for satisfying the constitutional requirements of the Equal Protection Clause at substantial equality of population. The means of meeting that bar, including choosing which population metric to employ when drawing legislative districts, were left to the States.

B. Later Decisions Do Not Require States To Employ A Specific Population Metric.

The Reynolds Court, realizing that the specifics of redistricting should be left to the individual States, declined to establish any specific tests, instead deciding to resolve future disputes on a case-by-case basis.[xii] We now turn to those cases, beginning with Burns v. Richardson.

In Burns, this Court was confronted with Hawaii’s apportionment scheme that relied on the number of registered voters when drawing State legislative districts. The Burns Court held that “the Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which this substantial population equivalency is to be measured.”[xiii] The Burns Court, elaborating on Reynolds, found that Reynolds “carefully left open the question what population was being referred to.”[xiv] Burns also left that question open. Burns does not at any point hold that any one apportionment base must be used, nor does it hold that that a specific apportionment base cannot be used.  Burns merely specifies that “[u]nless a choice is one the Constitution forbids, the resulting apportionment base offends no constitutional bar.”[xv]

This principle was seen later in Hadley v. Junior College District of Metropolitan Kansas City (1969). In Hadley, this Court held that the apportionment scheme used by a Kansas City school district to apportion board members was unconstitutional. In conducting its analysis in Hadley, the Court relied on disparities between “school enumeration,” or the “number of persons between the ages of six and 20 years who reside in each district.”[xvi] The apportionment scheme was ultimately held unconstitutional because of how trustees were apportioned, not because of the population metric chosen by Kansas. Hadley suggests that school enumeration is a valid apportionment base for school districts, but does not require that all States use it to apportion their school districts.

Hadley and Burns both attest to this Court’s historical deference to States on the metric chosen by States when devising apportionment schemes. Unless the State’s choice of apportionment base offends the Constitution, this Court should not interfere. Similarly, it is not this Court’s responsibility to require States to employ a specific population metric when drawing legislative districts, whether it be CVAP, total voter registration, or even total population.

II. PLAN S172 IS CONSTITUTIONAL BECAUSE IT ACHIEVES SUBSTANTIAL EQUALITY OF TOTAL POPULATION AND IS NOT OTHERWISE INVIDIOUSLY DISCRIMINATORY.

A. Plan S172 Achieves Substantial Equality Of Total Population.

Reynolds held that the Equal Protection Clause requires that a State’s apportionment scheme be “based substantially on population” and achieve “substantial equality of population among the various districts.”[xvii] Therefore, according to Reynolds, this Court must consider whether Plan S172 meets several criteria: (1) whether Plan S172 is based substantially on some metric of population and (2) whether Plan S172 achieves substantial equality of that population metric among the districts. Additionally, according to Burns, this Court must also consider (3) whether the particular metric employed by Texas is constitutional.[xviii]

Plan S172 clearly meets all three criteria. First, plaintiffs have conceded that Plan S172 is based on total population. Second, plaintiffs have also conceded that Plan S172’s total deviation from ideal, measured using total population, is 8.04%. As 8.04% is less than 10%, any population deviations in Plan S172 are de minimis and thus insufficient to establish a prima facie case of a violation of the Equal Protection Clause.[xix] Therefore, Plan S172 satisfies the first two criteria. The question then becomes whether the total population alone is a constitutional metric of population.

The third criterion is a key point of dispute in today’s suit. By alleging that both total population and voter population must be equalized, the plaintiffs implicitly allege that total population by itself is an unconstitutional population metric. To evaluate the plaintiffs’ claim, this Court must turn to Burns. Under Burns, the plaintiffs must show that using total population as the sole apportionment base offends the Constitution.[xx] Nevertheless, this Court has consistently held that total population by itself is a constitutionally permissible apportionment base.[xxi] Thus, this Court’s past decisions compel it to find that total population alone is a constitutional apportionment base.

As such, Plan S172 meets all three criteria for achieving substantial equality of population set forth in Reynolds and Burns. Plan S172 is therefore not an unconstitutional dilution of citizens’ votes.

B. Plan S172 Is Not Otherwise Invidiously Discriminatory

Plaintiffs’ theory in this case alleges that Plan S172 is unconstitutional because Texas did not use a dual apportionment base of total population and voter population. One possible construction of the plaintiffs’ claim is that Plan S172 is invidiously discriminatory because Texas failed to give voters sufficient weight over non-voters in its redistricting scheme. However, Plan S172 gives equal weight to voters and non-voters because it treats voters and non-voters equally and makes no effort to distinguish between the two. Thus, the plaintiffs are essentially arguing that the Texas should give preferential treatment to voters, not that Texas should treat voters and non-voters equally. The Equal Protection Clause demands that States provide equal treatment to different groups. It does not demand preferential treatment to one group or another. Moreover, Texas has not unconstitutionally included nor excluded a protected group, because this Court has never held that voters or non-voters in general qualify as a protected class. The relative weight Texas gives to voters relative to non-voters has no bearing on this case.

An alternative construction of the plaintiffs’ theory is that Plan S172 is invidiously discriminatory because Texas must exclude non-voters from one of the two population metrics. This theory fails on three counts. First, claiming that failing to exclude a group amounts to invidious discrimination is, at best, illogical and oxymoronic. Second, this Court has consistently held that only one population metric is necessary when drawing state legislative districts.[xxii] Plaintiffs’ theory requiring that two population metrics be employed in apportionment schemes is entirely without precedent in this Court’s jurisprudence. Third, even if this Court were to hold that two apportionment bases are required, this Court has never held that States are required to include or exclude certain groups of persons in any one apportionment scheme. The Burns Court acknowledged this, noting that no decision, including Reynolds, required States “to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime” in their apportionment base.[xxiii] Similarly, neither Reynolds nor its progeny have required States to exclude such groups. The Burns Court further held that the choice of which groups to include and which to exclude is one “about the nature of representation with which we have been shown no constitutionally founded reason to interfere.”[xxiv] To require States to equalize both total population and voter population would be to break from decades of this Court’s jurisprudence.

III. EQUALIZING TOTAL POPULATION AND VOTER POPULATION IS NOT A PRACTICAL CONSTITUTIONAL REQUIREMENT.

A. CVAP Is Not Sufficiently Precise Or Accurate To Satisfy The “One Person, One Vote” Standard.

Not only has census data been traditionally used in apportionment, but census data is also the most reliable and precise method of measuring population. CVAP and similar metrics are inherently flawed. No other datasets, including those derived from the American Community Survey (“ACS”), “have the granularity, timeliness, detail, or accuracy comparable to the census enumeration.”[xxv] The United States census data set is superior to other sets because it is the only set of data that is based on “actual enumeration,” meaning it counts people head-by-head.[xxvi] Unlike other datasets, including those derived from ACS data, census data accounts for children, noncitizens, prisoners and disenfranchised felons, and those ineligible [to register to vote or to vote] because of mental disability.”[xxvii] The precision of the dataset is important because failing to precisely account for actual enumeration may lead to both under- and over-inclusion in apportionment.

At best, ACS measurements for CVAP are ballpark figures and are insufficient for establishing a constitutional standard. ACS is a survey and not an enumeration as defined by the Constitution. Surveys are samplings of the population and are accompanied by significant margins of error. While a 95% confidence is the normal standard for determining “statistical significance,” according to the U.S. Census Bureau itself, the “ACS releases data and error margins at the 90 percent confidence interval.”[xxviii] This evidence should not be construed to mean that CVAP and ACS are useless metrics for other purposes; however, it is clear that these measures are inferior to census data.

Plaintiffs and supporters of CVAP argue that CVAP is a viable constitutional standard because CVAP and other ACS datasets happen to “serve[] as the basis for distributing more than $450 billion in federal programs” and “to ensure compliance with the Voting Rights Act.”[xxix] While we acknowledge that CVAP can be a useful metric to aid in redistricting and apportionment matters, plaintiffs fail to prove that the Equal Protection Clause requires States to employ CVAP or any other ACS datasets. Establishing that CVAP is a useful metric in administering federal programs or in complying with the VRA is not relevant to the constitutional question in this case.

We recognize that total population is not without its own flaws. As this Court has already noted, “total population, even if absolutely accurate as to each district when counted, is not a talismanic measure of the weight of a person’s vote.”[xxx] The main reason for this is that the U.S. census “is more of an event than a process. It measures population at only a single instant in time.”[xxxi] Naturally, a decennial census will have its own distortions to population distribution, as people often relocate between different jurisdictions. Nevertheless, this Court has never ruled that this shortcoming of total population as a metric disqualified total population from alone being sufficient to establish “One Person, One Vote” standard. On the contrary, this Court has approved total population as a State legislative apportionment scheme so long as the State maintains the 10% de minimis rule created to allow for flexibility when complying with the standards already in place: compactness, contiguity, geographical boundaries, race, gender, ethnicity, etc.[xxxii] This Court’s rulings have consistently affirmed that total population is a workable constitutional standard.

B. Forcing States To Equalize Total Population and CVAP May Have Unintended Consequences Of Diluting Minority Voting Strength.

If this Court were to side with the plaintiffs, it would necessarily “enter[] into political thickets and mathematical quagmires,” a position which this Court has already explicitly rejected.[xxxiii] Moreover, forcing States to equalize total population and voter population could create practical problems that may dilute minority voting strength and violate § 2 of the VRA.

CVAP may lead to minority vote dilution. As “any theory of vote dilution must necessarily rely to some extent on a measure of minority voting strength that makes some reference to the proportion between the minority group and the electorate at large,”[xxxiv] this Court must consider how forcing states to equalize total population and CVAP would disproportionately break up “racial voting blocs” for minority voters.[xxxv] This Court would mostly likely see the effects of the foregoing theory of minority vote dilution under two separate conditions: (1) in districts with heavy immigration populations and (2) in districts with high compactness of majority-minority populations. Furthermore, border States such as Arizona, Texas, New Mexico, and California are likely to have districts in which both conditions are simultaneously satisfied, further exacerbating the risk of minority vote dilution.

Forcing border States to equalize total population and voter population could result in minority vote dilution in cases where there are large populations of children, undocumented persons, and other noncitizens. Some States, in an effort to equalize voter population, may be unable to satisfy other constitutional and statutory requirements like compactness and contiguity. Adding on further requirements such as equalizing voter population and equalizing total population could require States to engage in a deleterious trade-off between theoretical and practical equality: at some point, adding requirements that may sound appealing in theory will prove to be meaningless. For example, this Court has clearly determined that the VRA prevents States from diluting minority voting strength by breaking apart “politically cohesive and geographically compact” minority populations.[xxxvi] Nevertheless, the plaintiffs demand that a State should not only have to preserve minority voting strength, but also ensure equality of total population, equality of voter population, geographical compactness, and geographical contiguity. Additionally, State constitutions may require consideration of other factors including, but not limited to, county lines, geographical features, and municipal boundaries. With all of these factors, something must give way, and minority voting strength may well be diminished to a certain degree.

Despite the plaintiffs’ best intentions, the potential discriminatory effects of their proposed apportionment scheme renders voter population an impermissible constitutional standard. Inviting States to dilute minority voting strength would be to take a step back 50 years in representational- and voting-equality progress established by this Court.

IV. EVEN IF EQUALIZING TOTAL POPULATION AND VOTER POPULATION WERE PRACTICAL, THIS COURT SHOULD NOT REQUIRE STATES TO DO SO.

The district court was correct in asserting that the plaintiffs’ argument can be reduced to a complaint that Texas does “not apportion[] districts pursuant to plaintiffs’ proffered scheme.”[xxxvii] plaintiffs’ argument fails to take into account that this Court has always deferred to the state legislatures to frame their apportionment scheme given their unique populations, unless the scheme “would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.”[xxxviii] In Burns, this Court permitted registered voters as a metric because (1) it closely approximated total population and (2) Hawaii chose the apportionment scheme to alleviate the “sizeable” differences in the population distribution.[xxxix] This Court was careful not to create a new constitutional mandate as it recognized that this Court had no role in doing so. Hawaii’s apportionment scheme cannot reasonably be expected to work in every district of Hawaii, let alone every district across the United States. The Burns Court declined to adopt a blanket law, and chose instead to defer to the judgment of the States as to how to apportion their districts.

It is worth noting that Texas has not chosen CVAP as its preferred apportionment base. Nevertheless, even if Texas did employ CVAP or any other metric, Burns still does not hold that CVAP is necessary for an apportionment scheme to be constitutional. The plaintiffs argue that Reynolds requires the use of CVAP or some other similar metric, but, as discussed previously, Reynolds carefully left the question of which metric to use open to the States. Burns permits Hawaii to use registered voters as the metric in its apportionment schemes, but did not go so far as to require it. Similarly, this Court cannot impose CVAP as a required metric for Texas when a metric of “substantial equality of population” that satisfies this Court’s 10 percent-deviation test already exists.[xl] Plaintiffs have confused sufficiency with necessity in this case. CVAP may be sufficient as a standard, but it is certainly not necessary.

This Court has repeatedly refused to “become bogged down in a vast, intractable apportionment slough.”[xli] Accepting the plaintiffs’ conflation of sufficiency and necessity will drag this Court down a road with no end in sight. This Court has already rejected this path in Gaffney v. Cummings (1973), when the Court said that “[i]nvolvements like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally ‘better’ when measured against a rigid and unyielding population equality standard… The point is, that such involvements should never begin.”[xlii] As long as the apportionment scheme selected by the State is constitutionally sufficient, and plaintiffs are unable to show “a prima facie case of invidious discrimination,” then this Court has no constitutional basis to interfere.[xliii] In this case, the plaintiffs are unable to present a prima facie case of invidious discrimination. Thus, this Court should defer to Texas’s right to use the reliable total population metric.

CONCLUSION

Although this Court has often used total population as its metric of equality, it has “never determined that relevant ‘population’ that states and localities must equally distribute among districts,” instead defining the general boundaries of constitutional permissibility.[xliv] Moreover, this Court has held that an apportionment scheme is constitutionally valid if it substantially equalizes population among the districts and is not invidiously discriminatory. Plaintiffs have conceded that Plan S172 achieves substantial equality of total population, a metric of equality consistently allowed by this Court. The plaintiffs rely on an entirely novel theory rejected by the Fourth, Fifth, and Ninth Circuits. This Court has never endorsed the plaintiffs’ theory and should not do so today.

Total population based on decennial census data is a reliable metric that is permitted under the Equal Protection Clause. On the other hand, CVAP and other ACS datasets are insufficiently precise for redistricting purposes. Additionally, requiring States to equalize total population and voter population could dilute minority voting strength in an attempt to satisfy other requirements. But, even after setting aside practical concerns, this Court must not mandate that all States equalize voter population by using CVAP or some other similar metric when drawing legislative districts. Doing so would drag this Court down into “a vast, intractable apportionment slough”[xlv] and thrust this Court into “political thickets and mathematical quagmires.”[xlvi] This Court has carefully avoided those situations and should continue to do so.

The judgment of the United States District Court for the Western District of Texas should be affirmed.

[i] Tex. Const. art. III, § 28.

[ii] Evenwel v. Perry (2014).

[iii] Ibid.

[iv] Ibid.

[v] Ibid.

[vi] Ibid., quoting Burns v. Richardson, 384 U.S. 73, 91 (1966).

[vii] Reynolds v. Sims, 377 U.S. 533, 579 (1964).

[viii] Id., at 568-569.

[ix] Id., at 566.

[x] Id., at 578.

[xi] Ibid.

[xii] Ibid.

[xiii] Burns, supra, at 91.

[xiv] Ibid.

[xv] Id., at 92.

[xvi] Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 51 (1970).

[xvii] Reynolds, supra, at 578-579.

[xviii] Burns, supra, at 92.

[xix] Gaffney v. Cummings, 412 U.S. 735, 745 (1973).

[xx] Burns, supra, at 92.

[xxi]  See Reynolds, supra, at 568-569, Burns, supra, at 95, Gaffney, supra, at 737.

[xxii] See Reynolds, supra, at 577 (“both houses of a state legislature must be apportioned on a population basis” (emphasis added)) and Burns, supra, at 80 (“using registered voters as a basis” (emphasis added)).

[xxiii] Ibid.

[xxiv] Ibid.

[xxv] Brief of Nathaniel Persily, et al., as Amici Curiae, at 4.

[xxvi] Id., at 3.

[xxvii] Id., at 4-5.

[xxviii] Id., at 18.

[xxix] Brief of Demographers Peter A. Morrison, et al., as Amici Curiae, at 4.

[xxx] Gaffney, supra, at 746.

[xxxi] Ibid.

[xxxii] Id., at 775.

[xxxiii] Reynolds, supra, at 566.

[xxxiv] Thornburg v. Gingles, 478 U.S. 30, 84 (1986) (O’Connor, J., concurring in the judgment).

[xxxv] Id.

[xxxvi] League of United Latin American Citizens v. Perry, 548 U.S. 399, 425 (2006) (quoting Gingles, supra, at 50).

[xxxvii] Evenwel v. Perry (2014).

[xxxviii] Burns, supra, 89.

[xxxix] Id., at 90.

[xl] Gaffney, supra, at 744 (quoting Reynolds, supra, at 579).

[xli] Gaffney, supra, at 750.

[xlii] Id., at 750-751.

[xliii] Id., at 751.

[xliv] Chen v. City of Houston, 532 U.S. 1046, 1047-1048 (2001) (Thomas, J., dissenting from denial of cert.).

[xlv] Gaffney, supra, at 750.

[xlvi] Reynolds, supra, at 566.

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