Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a test case that now awaits the Supreme Court about the concepts of “one-person, one-vote” and equality among voters.
THE STATEMENT AT ISSUE:
“The one-person, one-vote principle protects the rights of voters to an equal vote. A statewide districting plan that distributes voters or potential voters in a grossly uneven way is therefore patently unconstitutional under Supreme Court precedent….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….At the core of one-person, one-vote is the principle of electoral equality, not that of equality of representation.”
– Excerpts from an appeal filed in the Supreme Court, urging the Justices to adopt the theory that the allocation of power to elect public officials must be based on equality among the voters who will be represented, not on equality in the number of people in each election district. The case is titled Evenwel v. Abbott.
WE CHECKED THE CONSTITUTION, AND…
One of the most basic aspirations of the American Constitution is the principle of equality, the notion that in a free and democratic society, no person or class of persons is to be favored over another. But to achieve equality, one has to know how to measure that: to what does one compare a person’s situation to know if that person is being treated equally?
That is easy if, for example, one is talking about racial equality. If one race is given special advantages, but others are not, that is a condition of inequality among the races. The same is true if one is talking about gender equality: men cannot be treated better than women. But that is not so easy when one is talking about equality among those who will be given the opportunity to choose government leaders, through elections.
At America’s founding, the vote was held by those who were male and owned property. Within that group, one could say those voters were equal. But people not in that category – women, or the property-less -- obviously were not treated equally; they simply did not share in the sovereign act of voting. Over the decades that came later, that sovereignty was spread around more widely, though not universally, and one could say with more accuracy that there ultimately was something close to an equal right to vote.
The Supreme Court made that broader equality a constitutional mandate in the 1964 decision in Reynolds v. Sims, establishing the concept of “one-person, one-vote.” When legislatures created districts for electing public officials, that mandate required, the vote of each person should count as fully, in determining election outcomes, as that of any other person. In other words, the weight of one’s vote should not depend upon what district each person called home; districts had to be equal, or close to equal, in the people represented.
But it is a historic curiosity that, a full half-century later, the Supreme Court has yet to spell out just how the one-person, one-vote goal is to be achieved in drawing up new election districts. Should the basis of comparison be actual population, the total number of people in each district? Should it, instead, be how many voters are in each district? And who is to decide on which measure is to be used?
The Supreme Court has now been asked to answer those questions. Lawyers who filed a test case that now awaits the Justices’ attention make the bold argument that one-person, one-vote means equality among voters; it is their right to equal electoral opportunity that is said to be constitutionally mandated.
The target of this complaint is a redistricting plan that the Texas legislature drafted in 2013, creating new districts for electing the 31 members of the state senate. The legislature decided that it would proceed on a theory of equal representation by actual population. It came very close to achieving absolute equality among the 31 districts using that measure: between the largest and the smallest, there was only a mere 8.04 percent difference.
But because some of the districts actually had many more registered voters in them than were in other districts, using voting age population as the decider, the difference between the largest and the smallest rose to as much as 49 percent. That meant, when it came to election time, that voters in districts with the lowest proportions of voters would cast votes that were about one and a half times more powerful than in the other districts. The smaller the number of voters, the more power they had in voting.
The challenge to that situation was based directly on the one-person, one-vote principle, with equality of voting power as the aspiration. That challenge failed in lower federal courts, however, in a decision that it is up to the state legislature to decide what theory of representation it wants to follow, and thus what population metric to use in striving for near-equality.
Taking their complaint to the Supreme Court, two Texas voters who live in districts where voters will have much less than equal voting power, comparatively, asked the Justices to declare for the first time that one-person, one-vote doctrine requires a legislature to use voting population numbers – at least when using total population numbers would cause serious disparities in the strength of the votes that will be cast. Total population as the metric could be valid, the argument goes, but only when it does not produce the kind of skewed results that it has in Texas for state senate elections.
The challengers to the Texas districting plan would concede, of course, that the senators who get elected would actually be representing everyone in their districts, and not just the voters who sent them to Austin. But it is the constitutional legitimacy of their election, the challengers suggest, that is what actually is at stake.
The Texas case reached the Supreme Court in a procedural form that may require the Justices to decide, one way or the other, whether the use of the total population metric can become unconstitutional when it has such a negative impact on voter equality. That could be a formidable task if for no other reason than that it would require the Justices to decide if the answer is in the Constitution, or should be left to elected representatives.
