In this 50th anniversary year of the Voting Rights Act of 1965, and a little over two years after the U.S. Supreme Court arguably gutted said act in its Shelby County v. Holder decision, a case is before the Court that could unravel an even more fundamental legal principle central to voting rights: the “one person, one vote” doctrine supposedly enshrined forever in the Reynolds v. Sims decision of 1964 (relying on the earlier Baker v. Carr decision ending judicial deference to the states on the issue of fair representation).
Voting-rights historian and advocate Ari Berman nicely sums up the significance and apparent durability of one person, one vote:
“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote,” wrote Justice William Douglas. Chief Justice Earl Warren famously added, “Legislators represent people, not trees or acres.” The Court’s rulings shifted power from rural to urban areas, where people actually lived. In tandem with the Voting Rights Act (VRA) of 1965, the “one person, one vote” cases led to “the greatest peace-time change in representation in the history of the United States,” wrote Harvard University political scientists Stephen Ansolabehere and James Snyder. Warren called it his most important achievement on the bench.
But now the same legal beagles that talked the Court into its Shelby County decision are back with a suit challenging one person, one vote. More specifically, they are asking that the states be required — or at least allowed — to use eligible voters, not total population, as the standard for creating equal districts for the U.S. House and State Legislatures. If Evenwel v. Abbott goes their way, it would mean a major reduction of voting representation for minority Americans as children, non-citizens, and incarcerated felons became non-people when it came to determining district lines. It would not only violate one person, one vote as we understand it today, but the principle at the heart of the Civil War Amendments to the Constitution that representation should be based on those with rights yet to be fully vindicated, not just those holding power.
As Lyle Denniston of SCOTUSblog notes in his summary of today’s oral arguments in Evenwel, the main obstacle to the revolutionary — or one might say counterrevolutionary — intent of the plaintiffs is simple practicality, since there’s no database resembling the Census for eligible voters only.
The Supreme Court does not shy away from being bold, at least some of the time, but sometimes the temptation is overcome by real-world practicality. That’s the way the Court seemed to be leaning on Tuesday when it considered throwing out the basis for drawing election districts for thousands of state and local legislative seats across the country, and starting over with a new standard. The problem: no one had a solid idea of how to make an alternative approach actually work.
But Denniston also noted that Justice Alito seemed sympathetic to the principle of “equality of voters” the plaintiffs are advancing. And worse yet, the usual swing vote on the Court, Justice Kennedy, seemed to be looking for a “compromise” between equal representation of people generally and of voters alone, perhaps through some cap on the degree of disparity in the number of voters among districts.
There’s no reason to assume the Court is going to go that way, but Kennedy’s interest in a modification of one person, one vote, especially given the possibility of a ruling that would make voter-only redistricting a state option, rather than a requirement, remains troubling. A green light for red states to reduce representation for normally Democratic voters would probably be acted upon with devilish alacrity.