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.