The Supreme Court on Tuesday agreed to hear a case that will answer a long-contested question about a bedrock principle of the U.S. political system: the meaning of “one person, one vote.”
The court has never resolved whether that means that voting districts should have the same number of people, or the same number of eligible voters. The difference matters in places with large numbers of people who cannot vote legally, including immigrants who are here legally but are not citizens; unauthorized immigrants; children; and prisoners.
The new case, Evenwel v. Abbott, No. 14-940, is a challenge to voting districts for the Texas Senate brought by two voters, Sue Evenwel and Edward Pfenninger. They are represented by the Project on Fair Representation, the small conservative advocacy group that has mounted earlier challenges to affirmative action and to a central part of the Voting Rights Act.
“There are voters or potential voters in Texas whose Senate votes are worth approximately one and one-half times that of appellants,” the challengers’ brief said.
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In a statement issued after the Supreme Court accepted their case, Evenwel and Pfenninger said they “hoped that the outcome of our lawsuit will compel Texas to equalize the number of eligible voters in each district.”
A 1964 Supreme Court decision, Reynolds v. Sims, ruled that voting districts must contain very close to the same number of people. But the court did not say which people count.
Almost all state and local governments draw districts based on total population. If people who were ineligible to vote were evenly distributed, the difference between counting all people or counting only eligible voters would not matter. But demographic patterns vary widely.
If the challengers succeed, the practical consequences would be enormous, Joseph R. Fishkin, a law professor at the University of Texas at Austin, wrote in 2012 in The Yale Law Journal.
It would, he said, “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.”
Federal appeals courts have uniformly ruled that counting everyone is permissible, and one court has indicated that it is required.
In the process, though, several judges have acknowledged that the Supreme Court’s decisions provide support for both approaches. The federal appeals court in New Orleans said the issue “presents a close question,” partly because the Supreme Court had been “somewhat evasive in regard to which population must be equalized.”
Judge Alex Kozinski, in a partial dissent from a decision of the federal appeals court in San Francisco, said there were respectable arguments on both sides.
On one theory, he said, counting everyone ensures “representational equality,” with elected officials tending to the interests of the same number of people, whether they are voters or not.
On the other hand, he said, counting only eligible voters vindicates the principle that voters “hold the ultimate political power in our democracy.” He concluded that the Supreme Court’s decisions generally supported the second view.
Even if counting only adult citizens is the correct approach, there are practical obstacles. “A constitutional rule requiring equal numbers of citizens would necessitate a different kind of census than the one currently conducted,” Nathaniel Persily, a law professor at Stanford, wrote in 2011 in the Cardozo Law Review.
For now, he said, “the only relevant data available from the census gives ballpark figures, at best, and misleading and confusing estimates at worst.”
In 2001, the Supreme Court turned down an opportunity to decide the question, in another case from Texas.
Justice Clarence Thomas objected. “We have never determined the relevant ‘population’ that states and localities must equally distribute among their districts,” he wrote.
“The one-person-one-vote principle may, in the end, be of little consequence if we decide that each jurisdiction can choose its own measure of population,” Thomas added. “But as long as we sustain the one-person-one-vote principle, we have an obligation to explain to states and localities what it actually means.”
Military contractors: In a unanimous decision, the court ruled that a whistleblower suit accusing KBR Inc. and Halliburton Co. of fraudulent billing had been filed too late. The suit was brought in June 2011 under the False Claims Act by Benjamin Carter, who had worked for KBR in Iraq in early 2005 as a water-purification operator.
The law lets whistle-blowers sue on behalf of the federal government and collect part of any recovery. Carter said the companies had billed the government for services they had not performed or had performed improperly.
The statute of limitations is ordinarily six years, but it is shortened to three years if the government should have known about the violation. Carter filed several suits. He submitted the one at issue in the Supreme Court in June 2011, and most of its accusations came too late under either deadline.
Bankruptcy judges: By a 6-3 vote, the court ruled that bankruptcy judges may hear claims they are ordinarily powerless to consider if the parties consent. Chief Justice John G. Roberts Jr. filed a sharp dissent, saying that the majority had committed a major constitutional misstep and had allowed a stark violation of the separation of powers.
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