This morning, the Supreme Court heard oral argument in the case of Evenwel v. Abbott, a huge case about a fundamental question that goes to the very heart of our Constitution’s system of representative democracy. Who counts when states draw election districts—all the people or only voters? The case was initiated by activists who seek to empower certain voters at the expense of the entire population, which in Texas would tilt power toward more rural and, yes, conservative areas of the state. But the Constitution settles this question, and Evenwel should begin and end with the text and history of the Constitution.
The Constitution guarantees equal representation for equal numbers of people. Our Constitution is based on the idea that all persons—whether or not they are voters—should be represented in our democracy. This is apparent in the Census Clause, which requires an “actual Enumeration” of all the people of the nation for purposes of federal representation, the disbursement of federal funds, and other ends. It is also contained in the Fourteenth Amendment, which requires “counting the whole number of persons in each State” and guarantees “equal protection of the laws” to any “person,” not merely voters. In these and other ways, the Constitution is clear: Ours is a representative democracy open to all. Indeed, Sue Evenwel’s argument that representation should be based only on the voting population was flatly rejected during the debates over the Fourteenth Amendment, when the amendment’s framers reaffirmed total population as the Constitution’s system of representation.
This point was powerfully driven home during this morning’s argument by Justice Elena Kagan, who demonstrated that “the framers of the Fourteenth Amendment explicitly considered this issue” and made a “clear, explicit choice” in favor of “equal representation” as a constitutional rule, ensuring that all persons would have their voices represented in the democratic process. Quoting Senator Jacob Howard—one of the most influential of those responsible for drafting the amendment—Justice Kagan made plain that the Fourteenth Amendment adopted the total population rule as the “most just and satisfactory” rule for our Constitution’s system of democracy: “Numbers; not voters; numbers; not property; this is the theory of the Constitution.” Justice Kagan’s questioning showed that, when it comes to the ground rules of our democracy, the Constitution is fundamentally a progressive document, ensuring a multiracial democracy is which all persons—not merely voters—are entitled to equal representation.
Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer each made similar points, insisting that states must act in conformity with fundamental democratic principles reflected in the Fourteenth Amendment and other parts of the Constitution. Justice Ginsburg made the point that, under Evenwel’s view, women would have been denied representation in state legislatures from 1868 to 1920 since they were not “eligible voters” until ratification of the Nineteenth Amendment. Likewise, Justice Breyer focused on representation of children, who cannot vote, yet are profoundly affected by policies decided upon by the people who represent them in school boards and statehouses around the country.
Neither the Court’s conservative justices nor Evenwel’s attorney, William Consovoy, offered any credible rejoinder to the Fourteenth Amendment’s text and history laid out by Justice Kagan, or any explanation why states violate the equal protection guarantee when they choose to draw election districts that represent all persons—the very system required by the Constitution for congressional representation.
Rather that grappling with the Constitution’s fundamentals, Consovoy took refuge in doctrine, insisting that the key question was “whether the ‘one person, one vote’ rule affords any eligible voters any reasonable protection.” He received some support from Chief Justice John Roberts, who observed that the rule “seems to be designed to protect voters,” and from Justice Anthony Kennedy, who suggested that there is a “liberty interest” in “protecting . . . voters.”
It is one thing to say that the “one person, one vote” rule protects voters—that was settled when the Warren Court struck down state redistricting plans that diluted the representation of voters and other people living in cities. It is quite another to interpret the Fourteenth Amendment’s guarantee of equal protection for all persons to take away representation from children, unnaturalized immigrants, and others who lack access to the ballot. Texas is not diluting the rights of voters when it draws districts on the basis of total population. It is simply recognizing that our Constitution’s system of representation accords equal representation to voters and non-voters alike. That the “one person, one vote” rule protects voters hardly justifies the sweeping constitutional revolution sought by Sue Evenwel.
The justices also grappled with the possibility that states could satisfy both population equality and voter equality in drawing election districts. But Texas Solicitor General Scott Keller suggested that a rule requiring states to equalize both total and voter population would wreak havoc on the districting process. “States would have to disregard many other traditional redistricting factors,” Keller argued. Justice Kennedy seemed to agree.
If Sue Evenwel hopes to set off a reapportionment revolution, she needs five votes to scrap our Constitution’s fundamental rule of equal representation for equal numbers of people. By the end of 60 minutes of oral argument, it is far from clear whether a majority of the Court is ready to take away representation in state legislatures from millions of individuals and throw our nation’s political system into turmoil.