(From the diaries…bill s)

Amid the recent spate of Supreme Court decisions as they wind up this term lost in the discussion is a potentially blockbuster case they accepted for review for the October 2015 term- Evenwell vs. Abbott.  It, in fact, has the potential to change politics for years to come, perhaps generations.  This “controversy” dates back to a 1964 decision- Reynolds vs. Sims- which established the notion of “one man, one vote.”  Since then there has been a progeny of cases with the most famous being Baker vs. Carr which decided that redistricting could be reviewed by the courts and that it was not a purely political question.  It evolves from the Equal Protection Clause of the 14th Amendment.

In the 50 years since, a nagging question has been left open- does one count total population, or does one count citizens, particularly voting eligible population (VEP).  Only Justice Clarence Thomas, in a written dissent in a denial to hear the case of Chen vs. City of Houston, has gone on record of encouraging the Court to decide this issue.

To briefly recap and explain why Gregg Abbott, the conservative Governor of Texas, is allied with liberal groups, this case involves the redistricting of Texas’ 31 senatorial districts after the 2010 census.  The legislature passed a plan which was invalidated by the District Court as a violation of Section 5 of the Voting Rights Act.  They implemented an interim map for the 2012 cycle which was largely later codified by the legislature.  Sue Evenwell and Edwin Pfenninger appealed to the District Court that their votes were diluted as a result of the redistricting because the state relied on population, not VEP.

After the census, states must adjust boundaries of districts and most do so making sure that each district is roughly equal in population.  At the federal level, for example, the number of Representatives is fixed at 435.  Hence doing the math, each federal Congressional district must contain about 733,000 people.  The same formula is applied at the state level where each political district must contain roughly the same amount of people.

Both Evenwell and Pfenninger are registered and regular voters in different districts in western Texas, a largely rural area.  In order to capture the requisite population, their towns were drawn into areas of higher population, although not necessarily voters.  The reason is simple: many of those in larger population areas are ineligible to vote because of their age (under 18) or their citizenship status.  The Census Bureau counts total population regardless of their legal status in this country and it is those figures which states use to apportion their legislative districts.

In the Texas instance, each senatorial district has about 811,000 people.  In Evenwell’s district, 584,000 are eligible to vote.  In the neighboring more urban district, although containing 811,000 people, only 372,000 are eligible to vote.  Because each district gets a state senator, one can see how Evenwell’s actual vote is diluted among one of 584,000 versus someone in the neighboring district whose vote is one among 372,000.

On the federal level, let’s look at California where all 53 districts have roughly the same amount of people.  However, the sprawling 1st District in the northern part of the state has about 521,000 VEP compared to the compact 40th District in Los Anegles which has a VEP of 262,000- or half that of the First yet they both get a representative.  Hence, how could that be considered Equal Protection?  In order to fix the disparity, rural/suburban voters- who tend to be conservative- would have to be shed into blue, urban districts thus lessening urban political power.

Staying at the federal level if this new metric were adopted, there would be a net shifting of 12 electoral votes.  California (6), New York (1), Texas (4) and Rhode Island (1) would all lose a seats in the House.  Rhode Island is simply losing population, but in the other three states, they have a large population, but also a large population that is not eligible to vote.  The reason is their large Hispanic, largely illegal population or other factors like disenfranchised ex-felons.  Twelve states would gain one Representative each: Iowa, Kentucky, Louisiana, Michigan, Missouri, Montana, North Carolina, Ohio, Oklahoma, Oregon, Tennessee and Virginia.  Looking at this, one can see why liberals and Democrats are fretting about the case.  If one were to extrapolate out to presidential elections, there would be a net movement of 4 electoral votes from blue to red states, and the likely gains in the House.

A decision in favor of the plaintiffs in this case could seriously alter the balance of power at the state and local level.  This would particularly effect states with large Latino populations and urban centers.  In California, for example, districts which are primarily urban today would have to be redrawn into the suburbs.  A district that existed in LA proper only would likely have to be redrawn into neighboring Orange County or Inland Empire- both areas that are considerably more conservative and which have considerably higher VEP.  In New York, Nydia Velazquez’s 7th District is suspected of having a 40% discrepancy between VEP and total population.  Most of the New York City area districts would have to be obliterated with the net effect of shifting political power upstate which tends to be more conservative and more Republican-friendly.

Originally considered a GOP pipe dream, that dream became partially true when the Court decided to take the case.  They’ve had the opportunity in the past, but Thomas’ pleas to resolve the issue in 2001 went unheeded.  Ironically, 25 years ago a similar case with similar arguments came before the Supreme Court- County of Los Angeles vs. Garza- which the Court rejected based on the view of the Solicitor General who was Kenneth Starr at the time.  However, it was his assistant, John Roberts, who actually framed the legal framework siding with the total population, not VEP, argument.  Of course, Roberts is not bound by a brief he filed as a government worker 25 years ago.

Liberal groups, especially Hispanic civil rights groups, fear a loss of political power if the Supreme Court rules in favor of the petitioners.  Texas tried to have the case dismissed as “non-justiciable” under the political question doctrine.  The original case in 1964 left undecided whether total population or VEP counted as the “man” in one man-one vote.  Because all 50 states effectively decided on total population does not mean a state cannot adopt the VEP metric.  That is, this is a state’s decision best left left to elected officials in the state and to the extent it should be changed, it is best changed through the political process.  In effect, Texas and its conservative Governors were arguing from a position of state’s rights.  However, this seems like a classic case under Baker vs. Carr for the Court to intervene and definitively decide this issue.  The mere fact they accepted this case should have many Democrats, liberals and Hispanics fearing its outcome.