by Michael Dorf
The headline from Monday's SCOTUS ruling in Evenwel v. Abbott was that the Court unanimously construed the constitutional obligation of one-person-one-vote (OPOV) to allow the drawing of electoral lines to reflect roughly equal numbers of people, rather than, as the plaintiffs had argued, to require roughly equal numbers of voters. There were, however, two wrinkles.
Wrinkle One: Justice Ginsburg's majority opinion did not address the argument put forward by Texas that the Constitution permits equal-voter districts or the argument by the federal government that the Constitution requires equal-population districts (and thus forbids equal-voter districts except in the coincidental circumstance when equal-population districts are also equal-voter districts). Concurring in the judgment, Justice Alito went further, rejecting most of the federal government's arguments for its position. Like the majority, Justice Alito did not officially purport to resolve the disagreement between Texas and the U.S. on an issue not before the Court, but he leaned towards Texas. His concurrence (joined in part by Justice Thomas) practically invites states to experiment with equal-voter districts.
Replacing equal-population districts with equal-voter districts would systematically favor Republicans, because the districts with a higher ratio of people to voters (or to people eligible to vote) tend to be urban, and thus more Democratic. The major exception is that some rural districts include disenfranchised prisoners in their population base, so shifting to equal-voter districts would eliminate the "prisoner bonus." But that exception is not sufficient to outweigh the overall electoral advantage that would accrue to Republicans from switching from population-based to voter-based districting. Justice Ginsburg can't really be faulted for leaving that door potentially open. Doing so might well have been the price of holding together a 6-vote majority. But it means that there could be mischief down the road--especially if a Republican president gets to fill the vacancy.
Wrinkle Two: Justice Thomas wrote a concurrence in the judgment in which he questioned OPOV itself as ungrounded in the Constitution. He wrote that "in embracing one person, one vote, the Court has arrogated to the Judiciary important value judgments that the Constitution reserves to the people." In his view, there is no principled way to decide between equal-population districts and equal-voter districts. Here I want to push back against Justice Thomas's position in three ways.
First, it's important to realize just how radical Justice Thomas's position is. In attacking OPOV, he's not just saying that states can choose between equal-population districts, equal-voter districts, and equal-eligible-voter districts. He's saying that states can adopt manifestly unequal districts. The only limit he sees is the clause of the Constitution that guarantees to each state a republican form of government. But legal challenges under the Guaranty Clause are traditionally deemed non-justiciable, and Justice Thomas gives no indication that he would change that rule. Thus, so far as Justice Thomas is concerned, there is no judicial check on state districting.
Second, Justice Thomas's position relies on a bit of bootstrapping. He says the Constitution leaves to "the people"--by which he means the people of the several states--the choice of how to draw legislative districts. But the people do not act directly. They only act through elections, either directly via referendum in some states or via their elected officials. Where the objection is that the elected officials do not truly represent the people, it is no answer to say that the people's elected representatives have chosen the system for representing the people. Where, as in Evenewel or such Warren Court classics as Baker v. Carr and Reynolds v. Sims, the voters complain that the legislature is chosen on an undemocratic basis, saying "take your case to the legislature" misses the point.
At the very least, Justice Thomas needs to provide some reason to think that legislators will vote against their self-interest to change the basis for elections. Such arguments are possible. Jeremy Waldron has noted that Parliament reformed its rotten boroughs without judicial review. Justice Thomas might make an argument that slow progress in this way is preferable to judicial intervention, perhaps by pointing to the adoption of various constitutional amendments that expanded the franchise and thus put existing elected officials at risk. There are counter-arguments about justice delayed, of course. However one thinks this question should be resolved, mere invocation of "the people" is insufficient to grapple with the problem.
Third, Justice Thomas makes too much of the need for a principled basis for choosing a constitutionally required basis for legislative districting. The Evenwel majority pointed to constitutional text, history, and doctrine as the basis for equal-population districts, but Justice Alito and to an even greater extent the plaintiffs pointed to the logic of vote-dilution as the basis for equal-voter districts. I think one could plausibly find one or the other more persuasive. There's at least as good an argument for, say, population, as there is for many of the other doctrinal lines the Court's cases draw. The fact that some people would disagree with the choice of equal-population districts doesn't make that choice unprincipled. And even if it did, so what? Once the Court settles on a line, administrability is more important than having a principled basis for that line in the first place.
John Hart Ely made that point very effectively in Democracy and Distrust. He acknowledged the same normative considerations that Justice Thomas does in the latter's Evenwel concurrence. Ely thus thought that on grounds of principle, it is hard to say that OPOV is clearly superior to a weaker rule: "simply don't systematically frustrate the majority will"--which is how Ely characterized Justice Stewart's position in the post-Reynolds cases. (Note that Justice Stewart voted with the majority in Reynolds but got off the OPOV boat in later cases. His view was thus more sympathetic to judicial review than is the view espoused by Justice Thomas in Evenwel.) But Ely nonetheless thought that OPOV was a better principle than Stewart's alternative on administrability grounds. OPOV is, or at least can be turned into, a clean line.
To close the loop, just as OPOV is a better, because cleaner, line than the mushy approach of Justice Stewart, so the Court could settle on an equal-population measure of OPOV even absent a slam-dunk argument for population rather than voters as the measure. Sometimes it's more important that a matter be settled than that it be settled according to a principle. Or as Ely put it in characterizing OPOV and other Warren Court doctrines: "Sometimes more is less."
N.B. Most weeks when one of my Verdict columns appears I run a blog post on a related subject. This week, my column appeared on Wednesday. In it, I compare the post-oral argument order in the Zubik case to a settlement conference. I may have more to say about that in a later blog post, but I'm not going to try to find a connection between the column and this post.