Monday, October 05, 2015

The New SCOTUS Term: What's Law Got to Do With It?

By Eric Segall

The Supreme Court’s new Term starts today and it promises to be a blockbuster. The Justices have already agreed to hear important cases on affirmative action, public sector unions, and the death penalty, with abortion and voter ID cases likely to also be on the agenda. But, perhaps the most important case this term, or maybe any term since Bush v. Gore, is Evenwel v. Abbott.

In this case, the Supreme Court will wrestle with a fundamental political issue: for purposes of redistricting in state and local elections (and probably federal as well), do states need to count all the people who live in the districts or just eligible voters? The answer has major practical implications for each political party and for our country as a whole. It also raises a difficult and core issue of political philosophy: whom do our elected leaders represent?

For much of our history, states were allowed to carve out their electoral districts without judicial interference. The Constitution is silent on the question and, in fact, the right to vote in state elections is not even mentioned in our foundational document.

After World War II, with the vast migration of African-Americans to the North and Mid-West, as well as the development of urban areas in the South, civil rights groups challenged electoral districts that gave far more power to rural voters (mostly whites) than city voters (more people of color). The Supreme Court rebuffed all such attempts, holding that, in light of the textual silence in the Constitution, as well as the essentially political nature of the questions raised by redistricting, it had no legal standards to evaluate such claims.

The Court’s reluctance to interfere in how states drew up their voting districts ended with the Warren Court. In the early sixties in Baker v. Carr and Reynolds v. Simms, the Justices announced (there is no other word for it) that the Equal Protection Clause of the 14th Amendment required electoral districts to abide by a “one person, one vote” rule. This decision resulted in far more political power for people in high population areas such as cities than for people in rural counties. Chief Justice Warren was fond of saying that Baker v. Carr was the most important case ever decided by his Court.

The Court has never resolved the issue whether the appropriate metric is people or eligible voters and, until now, has refused to hear such cases. As Adam Liptak of the New York Times reported, if the Court says that all people, including children, prisoners and aliens must be counted, urban areas which tend to vote Democrat will be helped, but if only eligible voters count, then rural communities with more GOP voters will benefit. The Roberts Court has not been shy about deciding important voting cases, and it apparently will do so again this term.

Currently, most states comply with the one-person-one-vote rule by counting everyone (not just eligible voters) pursuant to numbers provided by the U.S. Census. The plaintiffs claim that Texas is violating their constitutional rights by diluting their votes because districts with far fewer eligible voters but more people have more influence than districts with more eligible voters and fewer people.

There are respectable policy arguments on both sides of this question. On one hand, our elected leaders are supposed to represent all the people in their districts, not just those allowed to vote. On the other hand, voters are supposed to hold the ultimate power (subject to constitutional limitations) in our democracy. If districts with large numbers of ineligible voters have the same power as districts with larger numbers of eligible voters, then the power and influence of those eligible voters is reduced. There is no doubt that this case presents a difficult conundrum.

The United States Constitution says nothing about this issue. Theoretically, if states carve up their districts intentionally to disadvantage people of certain races, religions, or genders, the Equal Protection Clause is certainly there as a backstop. The plaintiffs in Evenwel, however, aren’t really making that kind of claim.  Moreover, although the choice to count people or voters has dramatic implications in many states, including Texas, for the two major political parties, the Supreme Court has never overturned a redistricting plan solely on the basis that it helped or hurt one political party.

Texas currently takes all people into account and the plaintiffs are trying to obtain a Court decision saying Texas is violating the Constitution by doing so. On what basis could the Court say the Constitution requires states to count either all people or only eligible voters? There is no text, history, or case law that provides a persuasive answer and both conclusions are rational. Any Court decision, therefore, other than the states are allowed to choose for themselves, would simply amount, as so much of constitutional law does, to the Justices replacing the decisions of one set of politicians with the choices of another set (the Justices themselves).

There may be strong reasons for us to have a Council of Revision staffed with independent governmental officials with the power to overturn the decisions of elected officials. The separation of powers is furthered by a third-party referee with authority to resolve the kinds of fundamental questions raised by the many difficult problems of electoral districting. But, should the Court step into this quagmire and require Texas, and all the other states, to abide by its decision on who counts, let us not pretend that decision has anything at all to do with law, lawyers, or judges. It would simply represent the Justices overturning the value choices of state officials based on their own values all the way down. In other words, with apologies to the great Tina Turner, law will have nothing to do with it.


Unknown said...

There is a third but unlikely outcome. The court could overturn Baker.

Shag from Brookline said...

Eric, can you square this:

"On one hand, our elected leaders are supposed to represent all the people in their districts, not just those allowed to vote. On the other hand, voters are supposed to hold the ultimate power (subject to constitutional limitations) in our democracy."

with the constitutional guarantee of a republican form of government?

Eric Segall said...

I don't think that Clause has anything to do with the tough issues raised by the case.

Joe said...

"The question presented is whether the “one-person, one-vote” principle of the Fourteenth Amendment creates a judicially enforceable right ensuring that the districting process does not deny voters an equal vote."

Determining if the Equal Protection Clause was violated when determining if a fundamental right (voting) is carried out is not merely a "value choice" but an application of constitutional law. Now, perhaps, this should be just treated as a political question given how that concept is usually applied (e.g., judicial standards here would just be arbitrary) but that is debatable especially given decades of settled law, accepted by political branches, in the districting area.

I also think as Shag suggested the Guarantee Clause can be used in this context.

Joe said...

"Theoretically, if states carve up their districts intentionally to disadvantage people of certain races, religions, or genders, the Equal Protection Clause is certainly there as a backstop. The plaintiffs in Evenwel, however, aren’t really making that kind of claim."

Are these three categories the only time when equal protection arises? I note your conclusion that "no text, history, or case law that provides a persuasive answer" but others disagree. I see here another case, perhaps, of strong disagreement taken to the next level. You don't simply disagree, including with some voting experts, but think the Supreme Court is not really applying "the law" at all but "value choices."

Might just be that you disagree on the merits.

Michael C. Dorf said...

1) For the sorts of reasons laid out by John Hart Ely, the complaint that judicial review is undemocratic has very little to it when, as in Baker and Reynolds, the courts are asked to intervene to ensure that the representative branches of government in fact represent the people. The district lines that were found invalid in Reynolds had not been changed over the course of six decades, during which time demographic shifts led to grossly disrpoportionate representation. The existing legislators--drawn as they were from the unrepresentative districts--lacked any incentive to redraw the lines to make them more representative. You can say that nonetheless, neither the text nor the original understanding of the Equal Protection Clause ruled out such unrepresentative districts but you can't say that in such cases the courts are substituting their views for those of democratically elected officials. Thus, I think Baker and Reynolds were rightly decided.

2) Once one has one-person-one-vote as the constitutional rule, I agree that it is unclear whether to count voters or residents. However, that strikes me as sufficiently closely tied to the underlying rule of Reynolds that the Court can establish it pursuant to what Dick Fallon usefully called the power of the courts to "implement" the Constitution.

3) Which rule to choose is a hard question, I also agree. But there is something to be said for a uniform rule of counting either voters or residents rather than leaving it up to each state, where the choice will be made opportunistically. That said, I don't have a strong view about which rule is better nor do I even have a strong view that there needs to be a uniform rule. But to the extent that Eric's main post challenges Baker and Reynolds themselves, I disagree.

Unknown said...

@Joe: I generally agree with what You say here, I did want to raise one point. In San Antonio Independent School District v. Rodriguez, the court noted (albeit in a footnote) there is no constitutional right to vote.

Hashim said...


You say: "On what basis could the Court say the Constitution requires states to count either all people or only eligible voters? There is no text, history, or case law that provides a persuasive answer and both conclusions are rational."

I'm curious, would you level the same criticism as the entire one-person, one-vote doctrine? After all, geographic gerrymanders were solidly rooted in history and supported by a rational theory of political representation (one reflected in the US Senate), and no text or precedent prohibited them before the Warren Court invented them.

If you would, then great (and I agree). But if you wouldn't, then I'm quite confused as to your critique of the challengers' position here.

Joseph said...

I agree wholeheartedly. Not only has the Constitution explicitly endorsed not counting every person (the 3/5 Clause and the superseding 14th Amendment's exclusion of "Indians not taxed"), the 14th Amendment requires "counting the whole number of persons in each State" at the federal level for the apportionment of Representatives. The Amendment proceeds to impose a limitation on states (the effect of which is to not count all people), but only extending that limitation when a state denies voting rights to "male inhabitants (presumably now including women due to the 19th Amendment) of such State, being twenty-one years of age (presumably impacted by the 26th Amendment changing voting age to 18), and citizens of the United States" who have not been convicted of crimes.

A decision on who the state must count gives no respect to the language of the 14th Amendment as ratified by state legislatures who would be impacted by a decision. It seems obvious that the silence in the Constitution on the question before the Court is an intentional silence.

It is also a good illustration of a slippery slope, from Baker to Reynolds and beyond, where a couple of arguably limited decisions in extreme circumstances lead to a conclusion that ignores, or makes superfluous, constitutional text. Both decisions are easily differentiated and yet also point in the plaintiffs' direction. I hope the Court doesn't put that third point on the graph.

Joe said...

"there is no constitutional right to vote"

Granting court doctrine, it is a "fundamental right," which means laws in question have to be closely examined for equal protection purposes. The case cited covers the ground.

I believe the footnote you cite says:

"Since the right to vote, per se, is not a constitutionally protected right, we assume that appellees' references to that right are simply shorthand references to the protected right, implicit in our constitutional system, to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State's population."

There is at least a limited right to vote, particularly as spelled out in Art. I and 17A as applied to voting for members of Congress. And, once in place, the right to vote has to be applied equally pursuant to various constitutional provisions.

Shag from Brookline said...

My curiosity is aroused by Joseph's:

"It seems obvious that the silence in the Constitution on the question before the Court is an intentional silence."

This suggests that there could be "unintentional" or "inadvertent"silence. What are the criteria for identifying the type of silence? A textualist would probably claim "intentional," whereas a New Originalist might look at it as a matter of construction. How was that brouhaha of yesteryear on a national bak finally resolved?

Eric Segall said...

Baker and Reynolds are two cases that do give me heartburn in the sense that if we are going to have a system of strong judicial review, an obvious place for it is the political process cases where people really don't have any other place to turn. But, at the end of the day, because I think our country would be better off with an "irreconcilable variance" standard of judicial review, I would not extend those cases unless a showing could be made that equal protection is clearly violated. That might have been possible with Reynolds (that is my response to Mike) but it is not possible with the current case and thus the Court should leave it up to the states.

Joseph said...

I don't think it is that complicated, Shag. At least, I think the rest of my post explained how such silence is intentional regarding this issue. Maybe "deliberate" is a better word.

During his U.N. speech, Netanyahu exhibited "intentional" or "deliberate" silence as he glowered at the chamber for 40+ seconds. It would be silly to dismiss any meaning in that silence by questioning whether his breaths between words was "unintentional" or "inadvertent." We could argue about a rhythm of speech resulting in slightly varying pauses between words and sentences but the prolonged moment of silence was undoubtedly deliberate.

An omission can be obvious and meaningful. My argument is that is the case here. The Constitution is not silent on the matter of when every person must be counted for purposes of representation (A: for the House of Representatives). Another way to say it is that the Constitution deliberately does not extend that requirement to state legislatures.

Joe said...

"proceeds to impose a limitation on states"

Actually, it states a penalty to be applied in certain cases without saying that no other limitation would violate section one.

"When" something happens the representation "shall" be reduced though this provision never was actually applied. Some other denial of voting rights very well might warrant only personal relief, not this special penalty. The section also includes the words "or in any way abridged" which were omitted for some reason.

The "language" being "respected" would take this all in mind. If the "privilege" of suffrage is denied without "equal protection" or without "due process" (then and now having a substantive component), such as the allegedly unbalanced representation involved here, the language can apply. It's debatable. A person might be wrong to apply it one way, but that is not "disrespect" necessarily.

What is there (not omitted) is the debate at issue.

Shag from Brookline said...

Joseph, I understand "body language," but the Constitution does not have "body language," although the Framers/Ratifiers may have exhibited such. The Constitution does not spell out privacy, abortion, national banks, paper money, self-defense, and many other things. Sometimes like a cigar silence is just silence. Sometimes construction supplies an answer. Sometimes politics decides the answer. Whether the silence is intentional, unintentional or inadvertent may be in the ear of the beholder.

Shag from Brookline said...

I should have pointed to the "silence" of the 1787 Constitution regarding not using the words "slaves," "slavery." The body and actual language of the Framers in the course of the Constitutional Convention, as well as the fact that many of them were slaveowners, suggests strongly that the omissions were intentional (despite Sean Wilentz's recent OpEd claim). But what other silences in the Constitution were so loud and clear?

What about a couple more silences, e.g., the silences of "judicial review" and "judicial supremacy" (over the elective federal branches). While "judicial review" seems generally accepted, some scholars disagree. Ditto on such "judicial supremacy." We have been dealing with constitutional cacophony from the beginning on what seems silence in the Constitution.

Query: Are there any scholarly articles on the subject of silence in the Constitution? Originalism views would be welcomed.

Greg said...

Reading Article 1 Section 2, the 14th amendment, and all later amendments (to see how they affect the 14th, which is to say, they don't) the constitutionally acceptable methods to apportion representatives are:

1.) Full count of residency (whole number of persons), excluding Indians not taxed.
2.) Full count of residency (whole number of persons), excluding people not taxed. (Implicit expansion of "Indians not taxed" to really mean any untaxed resident.)

3.) Number of male citizens 21 years of age. (implicit in the 14th amendment penalty.)
4.) Number of male citizens 18 years of age. (if the 26th changes the 14th, which I'm not convinced of textually.)
5.) Number of citizens 18 years of age. (if the 19th also changes the 14th, which I'm again not convinced of textually.)

To me, inferring the constitution not to allow at least one of 1 or 2 is to read it to say the exact opposite of what it explicitly says. It seems absurd to read section 1 of the 14th amendment to implicitly require that states not use, for state elections, the formula that is explicitly required for Representative apportionment in section 2.

To be clear, I'm not saying that the constitution explicitly or implicitly prohibits other methods of apportionment, just that it explicitly allows at least some form of "whole number of persons" method of apportionment. As such, Texas should absolutely win this particular case.

Shag from Brookline said...

Greg, are undocumented aliens included in the census and included for apportionment purposes?