Evenwel v. Abbott: What “One Person – One Vote” Means

May 5, 2016Articles Fox Rothschild LLP Immigration View Blog

On March 15, 2016, I hosted a program for the South Asian Bar Association-Southern California at Fox Rothschild on a case pending before the United States Supreme Court, Evenwel v. Abbott, that had the potential to drastically change the landscape by which states apportion legislative districts and allocate state funds. Under the traditional “one person-one vote” approach, states design legislative districts with equal population numbers based on the total population count determined by the decennial census. Where the maximum population difference between the largest and smallest district is less than 10%, a state or local legislative map presumptively complies with the one-person, one-vote rule.

After the 2010 decennial census, Texas adopted a State Senate map that has a maximum total-population difference of 8.04% within the presumptively permissible 10% range. However, if measured by the voter-population (eligible or registered voters), the maximum population difference exceeds 40%. Plaintiffs Sue Evenwel and Edward Pfenniger, who live in a district in Texas with large voter population, filed suit against the Texas Governor and Secretary of State arguing that apportioning legislative districts based on total population is unconstitutional under the Equal Protection Clause. Plaintiffs argued that legislative districts should be apportioned based on voter population rather than total population, thereby having the effect of allocating state funds away from communities (especially major cities) with higher concentrations of people ineligible to vote including non-citizens, children, mentally incapacitate persons and disenfranchised felons.

The program I hosted at Fox Rothschild included speakers from the Los Angeles City Attorney’s Office and the South Asian Network (SAN), a South Asian community organization based in Southern California. The City Attorney’s Office had submitted an amicus brief to the United States Supreme Court advocating against using voter population in deciding how to apportion legislative districts. Among other things, the Office argued that such a system would harm America’s cites and deny equal representation to their residents, both voters and nonvoters, which, in turn, would cause residents in less-populated rural areas to obtain more representation in state government than their population warrants.

On April 4, 2016, just three weeks after my program, the United States Supreme Court issued a unanimous decision against Plaintiffs Sue Evenwel and Edward Pfenniger. Delivering the opinion of the Court, Justice Ginsburg wrote that “[a]dopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.” Justice Ginsburg further explained that “[n]onvoters have an important stake in many policy debates- children, their parents, even their grandparents, for example, have a stake in a strong public-education system-and in receiving constituent services, such as help navigating public-benefits bureaucracies.” Accordingly, the current practice of states using total population in apportioning legislative districts remains intact.