Evenwel v. Abbott One Man One Vote Created:23-May-2022
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Another Look at "One Man, One Vote"
and certain other districting considerations
This is another Case discussing the "One Man, One Vote rule," decided by the U.S. Supreme Court in 2016. The Concurrences of Justice Clarence Thomas and Justice Samuel Alito, concur in the judgment of the Court, but, not in the Opinion's argument. Discussions of "One Man, One Vote," and representation are worth studying in the light of the other content on this site regarding Redistricting. I have not provided the Court's Opinion, here, only Justices Thomas & Alito's Opinions, with different portions highlighted, and a few of my own bracketed comments.
Justice Thomas' Opinion presents an undercurrent of dissatisfaction with the Court's historical position invoking One Man, One Vote, but, he stops short of rejecting the principle's basic premise of equality tied to the apportionment of electoral districts by it.
Evenwel v. Abbot, 2016
SUPREME COURT OF THE UNITED STATES
SUE EVENWEL, et al., APPELLANTS v. GREG ABBOTT, governor of texas, et al.
on appeal from the united states district court for the western district of texas
[April 4, 2016]
Justice Thomas, concurring in the judgment.
This case concerns whether Texas violated the Equal Protection Clause—as interpreted by the Court’s one-person, one-vote cases—by creating legislative districts that contain approximately equal total population but vary widely in the number of eligible voters in each district. I agree with the majority that our precedents do not require a State to equalize the total number of voters in each district. States may opt to equalize total population. I therefore concur in the majority’s judgment that appellants’ challenge fails.
I write separately because this Court has never provided a sound basis for the one-person, one-vote principle. For 50 years, the Court has struggled to define what right that principle protects. Many of our precedents suggest that it protects the right of eligible voters to cast votes that receive equal weight. Despite that frequent explanation, our precedents often conclude that the Equal Protection Clause is satisfied when all individuals within a district—voters or not—have an equal share of representation. The majority today concedes that our cases have not produced a clear answer on this point.See ante, at 16.
In my view, the majority has failed to provide a sound basis for the one-person, one-vote principle because no such basis exists. The Constitution does not prescribe any one basis for apportionment within States. It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government. The majority should recognize the futility of choosing only one of these options. The Constitution leaves the choice to the people alone—not to this Court.
In the 1960’s, this Court decided that the Equal Protection Clause requires States to draw legislative districts based on a “one-person, one-vote” rule.1* But this Court’s decisions have never coalesced around a single theory about what States must equalize.
The Equal Protection Clause prohibits a State from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, §1. For nearly a century after its ratification, this Court interpreted the Clause as having no application to the politically charged issue of how States should apportion their populations in political districts. See, e.g., Colegrove v. Green, 328 U. S. 549, 556 (1946) (plurality opinion). Instead, the Court left the drawing of States’ political boundaries to the States, so long as a State did not deprive people of the right to vote for reasons prohibited by the Constitution. See id., at 552, 556; Gomillion v. Lightfoot, 364 U. S. 339, 341, 347–348 (1960) (finding justiciable a claim that a city boundary was redrawn from a square shape to “a strangely irregular twenty-eight-sided figure” to remove nearly all black voters from the city). This meant that a State’s refusal to allocate voters within districts based on population changes was a matter for States—not federal courts—to decide. And these cases were part of a larger jurisprudence holding that the question whether a state government had a “proper” republican form rested with Congress. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118, 149–150 (1912).
This Court changed course in Baker v. Carr, 369 U. S. 186 (1962), by locating in the Equal Protection Clause a right of citizens not to have a “ ‘debasement of their votes.’ ” Id., at 194, and n. 15, 200. Expanding on that decision, this Court later held that “the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” Reynolds v. Sims, 377 U. S. 533, 568 (1964). The Court created an analogous requirement for congressional redistricting rooted in Article I, §2’s requirement that “Representatives be chosen ‘by the People of the several States.’ ” Wesberry v. Sanders, 376 U. S. 1, 7–9 (1964). The rules established by these cases have come to be known as “one person, one vote.”
Since Baker empowered the federal courts to resolve redistricting disputes, this Court has struggled to explain whether the one-person, one-vote principle ensures equality among eligible voters or instead protects some broader right of every citizen to equal representation. The Court’s lack of clarity on this point, in turn, has left unclear whether States must equalize the number of eligible voters across districts or only total population.
In a number of cases, this Court has said that States must protect the right of eligible voters to have their votes receive equal weight. On this view, there is only one way for States to comply with the one-person, one-vote principle: they must draw districts that contain a substantially equal number of eligible voters per district. [As opposed-to drawing the districts to equalize the total population. Exposing one glaring contradiction in the Court's demands for the basis of the "equality" districts it requires. Itasca]
The Court’s seminal decision in Baker exemplifies this view. Decided in 1962, Baker involved the failure of the Tennessee Legislature to reapportion its districts for 60 years. 369 U. S., at 191. Since Tennessee’s last apportionment, the State’s population had grown by about 1.5 million residents, from about 2 to more than 3.5 million. And the number of voters in each district had changed significantly over time, producing widely varying voting populations in each district. Id., at 192. Under these facts, the Court held that reapportionment claims were justiciable because the plaintiffs—who all claimed to be eligible voters—had alleged a “debasement of their votes.” Id., at 194, and n. 15, 204 (internal quotation marks omitted).
The Court similarly emphasized equal treatment of eligible voters in Gray v. Sanders, 372 U. S. 368 (1963). That case involved a challenge to Georgia’s “county unit” system of voting. Id., at 370. This system, used by the State’s Democratic Party to nominate candidates in its primary, gave each county two votes for every representative that the county had in the lower House of its General Assembly. Voting was then done by county, with the winner in each county taking all of that county’s votes. The Democratic Party nominee was the candidate who had won the most county-unit votes, not the person who had won the most individual votes. Id., at 370–371. The effect of this system was to give heavier weight to rural ballots than to urban ones. The Court held that the system violated the one-person, one-vote principle. Id., at 379–381, and n. 12. In so holding, the Court emphasized that the right at issue belongs to “all qualified voters” and is the right to have one’s vote “counted once” and protected against dilution. Id., at 380.
In applying the one-person, one-vote principle to state legislative districts, the Court has also emphasized vote dilution, which also supports the notion that the one-person, one-vote principle ensures equality among eligible voters. It did so most notably in Reynolds. In that case, Alabama had failed to reapportion its state legislature for decades, resulting in population-variance ratios of up to about 41 to 1 in the State Senate and up to about 16 to 1 in the House. 377 U. S., at 545. In explaining why Alabama’s failure to reapportion violated the Equal Protection Clause, this Court stated that “an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.” Id., at 568.
This Court’s post-Reynolds decisions likewise define the one-person, one-vote principle in terms of eligible voters, and thus imply that States should be allocating districts with eligible voters in mind. The Court suggested as much in Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U. S. 50 (1970). That case involved Missouri’s system permitting separate school districts to establish a joint junior college district. Six trustees were to oversee the joint district, and they were apportioned on the basis of the relative numbers of school-aged children in each subsidiary district. Id., at 51. The Court held that this plan violated the Equal Protection Clause because “the trustees of this junior college district [must] be apportioned in a manner that does not deprive any voter of his right to have his own vote given as much weight, as far as is practicable, as that of any other voter in the junior college district.” Id., at 52. In so holding, the Court emphasized that Reynolds had “called attention to prior cases indicating that a qualified voter has a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted.” Hadley, 397 U. S., at 52; see id., at 52–53.
In contrast to this oft-stated aspiration of giving equal treatment to eligible voters, the Court has also expressed a different understanding of the one-person, one-vote principle. In several cases, the Court has suggested that one-person, one-vote protects the interests of all individuals in a district, whether they are eligible voters or not. In Reynolds, for example, the Court said that “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people.” 377 U. S., at 560–561; see also ante, at 16 (collecting cases). Under this view, States cannot comply with the Equal Protection Clause by equalizing the number of eligible voters in each district. They must instead equalize the total population per district.
In line with this view, the Court has generally focused on total population, not the total number of voters, when determining a State’s compliance with the one-person, one-vote requirement. In Gaffney v. Cummings, 412 U. S. 735, 750–751 (1973), for example, the Court upheld state legislative districts that had a maximum deviation of 7.83% when measured on a total-population basis. In contrast, in Chapman v. Meier, 420 U. S. 1, 21–22, 26–27 (1975), the Court struck down a court-ordered reapportionment that had a total deviation of 20.14% based on total population. This plan, in the Court’s view, failed to “achieve the goal of population equality with little more than de minimis variation.” Id., at 27.
This lack of clarity in our redistricting cases has left States with little guidance about how their political institutions must be structured. Although this Court has required that state legislative districts “be apportioned on a population basis,” Reynolds, supra, at 568, it has yet to tell the States whether they are limited in choosing “the relevant population that [they] must equally distribute.” Chen v. Houston, 532 U. S. 1046, 1047 (2001) (Thomas, J., dissenting from denial of certiorari) (internal quotation marks omitted). Because the Court has not provided a firm account of what States must do when districting, States are left to guess how much flexibility (if any) they have to use different methods of apportionment.
This inconsistency (if not opacity) is not merely a consequence of the Court’s equivocal statements on one person, one vote. The problem is more fundamental. There is simply no way to make a principled choice between interpreting one person, one vote as protecting eligible voters or as protecting total inhabitants within a State. That is because, though those theories are noble, the Constitution does not make either of them the exclusive means of apportionment for state and local representatives. In guaranteeing to the States a “Republican Form of Government,” Art. IV, §4, the Constitution did not resolve whether the ultimate basis of representation is the right of citizens to cast an equal ballot or the right of all inhabitants to have equal representation. The Constitution instead reserves these matters to the people. The majority’s attempt today to divine a single “ ‘theory of the Constitution’”—apportionment based on representation, ante, at 12 (quoting Cong. Globe, 39th Cong., 1st Sess., 2766–2767 (1866))—rests on a flawed reading of history and wrongly picks one side of a debate that the Framers did not resolve in the Constitution.
The Constitution lacks a single, comprehensive theory of representation. The Framers understood the tension between majority rule and protecting fundamental rights from majorities. This understanding led to a “mixed” constitutional structure that did not embrace any single theory of representation but instead struck a compromise between those who sought an equitable system of representation and those who were concerned that the majority would abuse plenary control over public policy. As Madison wrote, “A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.” The Federalist No. 51, p. 349 (J. Cooke ed. 1961). This was the theory of the Constitution. The Framers therefore made difficult compromises on the apportionment of federal representation, and they did not prescribe any one theory of how States had to divide their legislatures.
Because, in the view of the Framers, ultimate political power derives from citizens who were “created equal,” The Declaration of Independence ¶2, beliefs in equality of representation—and by extension, majority rule—influenced the constitutional structure. In the years between the Revolution and the framing, the Framers experimented with different ways of securing the political system against improper influence. Of all the “electoral safeguards for the representational system,” the most critical was “equality of representation.” G. Wood, The Creation of the American Republic 1776–1787, p. 170 (1998) (Wood).
The Framers’ preference for apportionment by representation (and majority rule) was driven partially by the belief that all citizens were inherently equal. In a system where citizens were equal, a legislature should have “equal representation” so that “equal interests among the people should have equal interests in [the assembly].” Thoughts on Government, in 4 Works of John Adams 195 (C. Adams ed. 1851). The British Parliament fell short of this goal. In addition to having hereditary nobility, more than half of the members of the democratic House of Commons were elected from sparsely populated districts—so-called “rotten boroughs.” Wood 171; Baker, 369 U. S.,at 302–303 (Frankfurter, J., dissenting).
The Framers’ preference for majority rule also was a reaction to the shortcomings of the Articles of Confederation. Under the Articles, each State could cast one vote regardless of population and Congress could act only with the assent of nine States. Articles of Confederation, Art. IX, cl. 6; id., Art. X; id., Art. XI. This system proved undesirable because a few small States had the ability to paralyze the National Legislature. See The Federalist No. 22, at 140–141 (Hamilton).
Consequently, when the topic of dividing representation came up at the Constitutional Convention, some Framers advocated proportional representation throughout the National Legislature. 1 Records of the Federal Convention of 1787, pp. 471–473 (M. Farrand ed. 1911). Alexander Hamilton voiced concerns about the unfairness of allowing a minority to rule over a majority. In explaining at the Convention why he opposed giving States an equal vote in the National Legislature, Hamilton asked rhetorically, “If . . . three states contain a majority of the inhabitants of America, ought they to be governed by a minority?” Id., at 473; see also The Federalist No. 22, at 141 (Hamilton) (objecting to super majoritarian voting requirements because they allow an entrenched minority to “controul the opinion of a majority respecting the best mode of conducting [the public business]”). James Madison, too, opined that the general Government needed a direct mandate from the people. If federal “power [were] not immediately derived from the people, in proportion to their numbers,” according to Madison, the Federal Government would be as weak as Congress under the Articles of Confederation. 1 Records of the Federal Convention of 1787, at 472.
In many ways, the Constitution reflects this preference for majority rule. To pass Congress, ordinary legislation requires a simple majority of present members to vote in favor. And some features of the apportionment for the House of Representatives reflected the idea that States should wield political power in approximate proportion to their number of inhabitants. Ante, at 8–12. Thus, “equal representation for equal numbers of people,” ante, at 12 (internal quotation marks and emphasis omitted), features prominently in how representatives are apportioned among the States. These features of the Constitution reflect the preference of some members of the founding generation for equality of representation. But, as explained below, this is not the single “theory of the Constitution.”
The Framers also understood that unchecked majorities could lead to tyranny of the majority. As a result, many viewed antidemocratic checks as indispensable to republican government. And included among the antidemocratic checks were legislatures that deviated from perfect equality of representation.
The Framers believed that a proper government promoted the common good. They conceived this good as objective and not inherently coextensive with majoritarian preferences. See, e.g., The Federalist No. 1, at 4 (Hamilton) (defining the common good or “public good” as the “true interests” of the community); id., No. 10, at 57 (Madison) (“the permanent and aggregate interests of the community”). For government to promote the common good, it had to do more than simply obey the will of the majority. See, e.g., ibid. (discussing majoritarian factions). Government must also protect fundamental rights. See The Declaration of Independence ¶2; 1 W. Blackstone, Commentaries *124 (“[T]he principal aim of society is to protect individuals in the enjoyment of those absolute rights, which are vested in them by the immutable laws of nature”).
Of particular concern for the Framers was the majority of people violating the property rights of the minority. Madison observed that “the most common and durable source of factions, has been the various and unequal distribution of property.” The Federalist No. 10, at 59. A poignant example occurred in Massachusetts. In what became known as Shays’ Rebellion, armed debtors attempted to block legal actions by creditors to recover debts. Although that rebellion was ultimately put down, debtors sought relief from state legislatures “under the auspices of Constitutional forms.” Letter from James Madison to Thomas Jefferson (Apr. 23, 1787), in 11 The Papers of Thomas Jefferson 307 (J. Boyd ed. 1955); see Wood 412–413. With no structural political checks on democratic lawmaking, creditors found their rights jeopardized by state laws relieving debtors of their obligation to pay and authorizing forms of payment that devalued the contracts. McConnell, Contract Rights and Property Rights: A Case Study in the Relationship Between Individual Liberties and Constitutional Structures, 76 Cal. L. Rev. 267, 280–281 (1988); see also Fletcher v. Peck, 6 Cranch 87, 137–138 (1810) (Marshall, C. J.) (explaining that the Contract Clause came from the Framers’ desire to “shield themselves and their property from the effects of those sudden and strong passions to which men are exposed”).
Because of the Framers’ concerns about placing unchecked power in political majorities, the Constitution’s majoritarian provisions were only part of a complex republican structure. The Framers also placed several anti-democratic provisions in the Constitution. The original Constitution permitted only the direct election of representatives. Art. I, §2, cl. 1. Senators and the President were selected indirectly. See Art. I, §3, cl. 1; Art. II, §1, cls. 2–3. And the “Great Compromise” guaranteed large and small States voting equality in the Senate. By malapportioning the Senate, the Framers prevented large States from outvoting small States to adopt policies that would advance the large States’ interests at the expense of the small States. See The Federalist No. 62, at 417 (Madison).
These counter majoritarian measures reflect the Framers’ aspirations of promoting competing goals. Rejecting a hereditary class system, they thought political power resided with the people. At the same time, they sought to check majority rule to promote the common good and mitigate threats to fundamental rights.
As the Framers understood, designing a government to fulfill the conflicting tasks of respecting the fundamental equality of persons while promoting the common good requires making incommensurable tradeoffs. For this reason, they did not attempt to restrict the States to one form of government.
Instead, the Constitution broadly required that the States maintain a “Republican Form of Government.” Art. IV, §4. But the Framers otherwise left it to States to make tradeoffs and reconcile the competing goals.
Republican governments promote the common good by placing power in the hands of the people, while curtailing the majority’s ability to invade the minority’s fundamental rights. The Framers recognized that there is no universal formula for accomplishing these goals. At the framing, many state legislatures were bicameral, often reflecting multiple theories of representation. Only “[s]ix of the original thirteen states based representation in both houses of their state legislatures on population.” Hayden, The False Promise of One Person, One Vote, 102 Mich. L. Rev. 213, 218 (2003). In most States, it was common to base representation, at least in part, on the State’s political subdivisions, even if those subdivisions varied heavily in their populations. Wood 171; Baker, 369 U. S., at 307–308 (Frankfurter, J., dissenting).
Reflecting this history, the Constitution continued to afford States significant leeway in structuring their “Republican” governments. At the framing, “republican” referred to “[p]lacing the government in the people,” and a “republick” was a “state in which the power is lodged in more than one.” S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Federalist No. 39, at 251 (Madison) (“[W]e may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour”). By requiring the States to have republican governments, the Constitution prohibited them from having monarchies and aristocracies. See id., No. 43, at 291. Some would argue that the Constitution also prohibited States from adopting direct democracies. Compare Wood 222–226 (“For most constitution-makers in 1776, republicanism was not equated with democracy”) with A. Amar, America’s Constitution: A Biography 276–281 (2005) (arguing that the provision prohibited monarchies and aristocracies but not direct democracy); see also The Federalist No. 10, at 62 (Madison) (distinguishing a “democracy” and a “republic”); id., No. 14, at 83–84 (same).
Beyond that, however, the Constitution left matters open for the people of the States to decide. The Constitution says nothing about what type of republican government the States must follow. When the Framers wanted to deny powers to state governments, they did so explicitly. See, e.g., Art. I, §10, cl. 1 (“No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts”).
None of the Reconstruction Amendments changed the original understanding of republican government. Those Amendments brought blacks within the existing American political community. The Fourteenth Amendment pressured States to adopt universal male suffrage by reducing a noncomplying State’s representation in Congress. Amdt. 14, §2. And the Fifteenth Amendment prohibited restricting the right of suffrage based on race. Amdt. 15, §1. That is as far as those Amendments went. As Justice Harlan explained in Reynolds, neither Amendment provides a theory of how much “weight” a vote must receive, nor do they require a State to apportion both Houses of their legislature solely on a population basis. See 377 U. S., at 595–608 (dissenting opinion). And Justice Alito quite convincingly demonstrates why the majority errs by reading a theory of equal representation into the apportionment provision in §2 of the Fourteenth Amendment. See post, at 8–13 (opinion concurring in judgment).
The Court’s attempt to impose its political theory upon the States has produced a morass of problems. These problems are antithetical to the values that the Framers embraced in the Constitution. These problems confirm that the Court has been wrong to entangle itself with the political process.
First, in embracing one person, one vote, the Court has arrogated to the Judiciary important value judgments that the Constitution reserves to the people. In Reynolds, for example, the Court proclaimed that “[l]egislators represent people, not trees or acres”; that “[l]egislators are elected by voters, not farms or cities or economic interests”; and that, accordingly, electoral districts must have roughly equal population. 377 U. S., at 562–563. As I have explained, the Constitution permits, but does not impose, this view. Beyond that, Reynolds’ assertions are driven by the belief that there is a single, correct answer to the question of how much voting strength an individual citizen should have. These assertions overlook that, to control factions that would legislate against the common good, individual voting strength must sometimes yield to counter majoritarian checks. And this principle has no less force within States than it has for the federal system. See The Federalist No. 10, at 63–65 (Madison) (recognizing that smaller republics, such as the individual States, are more prone to capture by special interests). Instead of large States versus small States, those interests may pit urban areas versus rural, manufacturing versus agriculture, or those with property versus those without. Cf. Reynolds, supra, at 622–623 (Harlan, J., dissenting). There is no single method of reconciling these competing interests. And it is not the role of this Court to calibrate democracy in the vain search for an optimum solution.
[Madison's smaller republics more prone to capture by special interests can be extended to the intentional dominance of districts by a single party, or other special interest group. If districts are subjected to this control, they are effectively "captured!" Importantly, the competing interests named as examples, would not be successfully pitted against each other if the districts were drawn without regard for any special interest group! Itasca]
The Government argues that apportioning legislators by any metric other than total population “risks rendering residents of this country who are ineligible, unwilling, or unable to vote as invisible or irrelevant to our system of representative democracy.” Brief for United States as Amicus Curiae 27. But that argument rests on the faulty premise that “our system of representative democracy” requires specific groups to have representation in a specific manner. As I have explained, the Constitution does not impose that requirement. See Parts II–A, II–B, supra. And as the Court recently reminded us, States are free to serve as “ ‘laboratories’ ” of democracy. Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ____, ____ (2015) (slip op., at 28). That “laboratory” extends to experimenting about the nature of democracy itself.
[The problem here is equating "democracy" with a republic, as a representative political system. The representative system is either republic, or an effort to hybridize the republic into a democracy. The latter is impossible, and is the problem underlying the entire argument to one man, one vote! Itasca]
Second, the Court’s efforts to monitor the political process have failed to provide any consistent guidance for the States. Even if it were justifiable for this Court to enforce some principle of majority rule, it has been unable to do so in a principled manner. Our precedents do not address the myriad other ways that minorities (or fleeting majorities) entrench themselves in the political system. States can place policy choices in their constitutions or have supermajoritarian voting rules in a legislative assembly. See, e.g., N. Y. Const., Art. V, §7 (constitutionalizing public employee pensions); Ill. Const., Art. VII, §6(g) (requiring a three-fifths vote of the General Assembly to pre-empt certain local ordinances). In theory, of course, it does not seem to make a difference if a state legislature is unresponsive to the majority of residents because the state assembly requires a 60% vote to pass a bill or because 40% of the population elects 51% of the representatives.
So far as the Constitution is concerned, there is no single “correct” way to design a republican government. Any republic will have to reconcile giving power to the people with diminishing the influence of special interests. The wisdom of the Framers was that they recognized this dilemma and left it to the people to resolve. In trying to impose its own theory of democracy, the Court is hopelessly adrift amid political theory and interest-group politics with no guiding legal principles.
This case illustrates the confusion that our cases have wrought. The parties and the Government offer three positions on what this Court’s one-person, one-vote cases require States to equalize. Under appellants’ view, the Fourteenth Amendment protects the right to an equal vote. Brief for Appellants 26. Appellees, in contrast, argue that the Fourteenth Amendment protects against invidious discrimination; in their view, no such discrimination occurs when States have a rational basis for the population base that they select, even if that base leaves eligible voters malapportioned. Brief for Appellees 16–17. And, the Solicitor General suggests that reapportionment by total population is the only permissible standard because Reynolds recognized a right of “equal representation for equal numbers of people.” Brief for United States as Amicus Curiae 17.
Although the majority does not choose among these theories, it necessarily denies that the Equal Protection Clause protects the right to cast an equally weighted ballot. To prevail, appellants do not have to deny the importance of equal representation. Because States can equalize both total population and total voting power within the districts, they have to show only that the right to cast an equally weighted vote is part of the one-person, one-vote right that we have recognized. But the majority declines to find such a right in the Equal Protection Clause. Ante, at 18–19. Rather, the majority acknowledges that “[f]or every sentence appellants quote from the Court’s opinions [establishing a right to an equal vote], one could respond with a line casting the one-person, one-vote guarantee in terms of equality of representation, not voter equality.” Ante, at 16. Because our precedents are not consistent with appellants’ position—that the only constitutionally available choice for States is to allocate districts to equalize eligible voters—the majority concludes that appellants’ challenge fails. Ante, at 15–19.
I agree with the majority’s ultimate disposition of this case. As far as the original understanding of the Constitution is concerned, a State has wide latitude in selecting its population base for apportionment. See Part II–B, supra. It can use total population, eligible voters, or any other nondiscriminatory voter base. Ibid. And States with a bicameral legislature can have some mixture of these theories, such as one population base for its lower house and another for its upper chamber. Ibid.
Our precedents do not compel a contrary conclusion. Appellants are correct that this Court’s precedents have primarily based its one-person, one-vote jurisprudence on the theory that eligible voters have a right against vote dilution. E.g., Hadley, 397 U. S., at 52–53; Reynolds, 377 U. S., at 568. But this Court’s jurisprudence has vacillated too much for me to conclude that the Court’s precedents preclude States from allocating districts based on total population instead. See Burns, 384 U. S., at 92 (recognizing that States may choose other nondiscriminatory population bases). Under these circumstances, the choice is best left for the people of the States to decide for themselves how they should apportion their legislature.
There is no single “correct” method of apportioning state legislatures. And the Constitution did not make this Court “a centralized politburo appointed for life to dictate to the provinces the ‘correct’ theories of democratic representation, [or] the ‘best’ electoral systems for securing truly ‘representative’ government.” Holder v. Hall, 512 U. S. 874, 913 (1994) (Thomas, J., concurring in judgment). Because the majority continues that misguided search, I concur only in the judgment.
1 * The Court’s opinions have used “one person, one vote” and “one man, one vote” interchangeably. Compare, e.g., Gray v. Sanders, 372 U. S. 368, 381 (1963) (“one person, one vote”), with Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U. S. 50, 51 (1970) (“one man, one vote” (internal quotation marks omitted)). Gray used “one person, one vote” after noting the expansion of political equality over our history—including adoption of the Nineteenth Amendment, which guaranteed women the right to vote. 372 U. S., at 381.
SUPREME COURT OF THE UNITED STATES
SUE EVENWEL, et al., APPELLANTS v. GREG ABBOTT, governor of texas, et al.
on appeal from the united states district court for the western district of texas
[April 4, 2016]
Justice Alito, with whom Justice Thomas joins except as to Part III–B, concurring in the judgment.
The question that the Court must decide in this case is whether Texas violated the “one-person, one-vote” principle established in Reynolds v. Sims, 377 U. S. 533 (1964), by adopting a legislative redistricting plan that provides for districts that are roughly equal in total population. Appellants contend that Texas was required to create districts that are equal in the number of eligible voters, but I agree with the Court that Texas’ use of total population did not violate the one-person, one-vote rule.
Both practical considerations and precedent support the conclusion that the use of total population is consistent with the one-person, one-vote rule. The decennial census required by the Constitution tallies total population. Art. I, §2, cl. 3; Amdt. 14, §2. These statistics are more reliable and less subject to manipulation and dispute than statistics concerning eligible voters. Since Reynolds, States have almost uniformly used total population in attempting to create legislative districts that are equal in size. And with one notable exception, Burns v. Richardson, 384 U. S. 73 (1966), this Court’s post-Reynolds cases have likewise looked to total population. Moreover, much of the time, creating districts that are equal in total population also results in the creation of districts that are at least roughly equal in eligible voters. I therefore agree that States are permitted to use total population in redistricting plans.
Although this conclusion is sufficient to decide the case before us, Texas asks us to go further and to hold that States, while generally free to use total population statistics, are not barred from using eligible voter statistics. Texas points to Burns, in which this Court held that Hawaii did not violate the one-person, one-vote principle by adopting a plan that sought to equalize the number of registered voters in each district.
Disagreeing with Texas, the Solicitor General dismisses Burns as an anomaly and argues that the use of total population is constitutionally required. The Solicitor General contends that the one-person, one-vote rule means that all persons, whether or not they are eligible to vote, are entitled to equal representation in the legislature. Accordingly, he argues, legislative districts must be equal in total population even if that results in districts that are grossly unequal in the number of eligible voters, a situation that is most likely to arise where aliens are disproportionately concentrated in some parts of a State.
This argument, like that advanced by appellants, implicates very difficult theoretical and empirical questions about the nature of representation. For centuries, political theorists have debated the proper role of representatives,1 and political scientists have studied the conduct of legislators and the interests that they actually advance.2 We have no need to wade into these waters in this case, and I would not do so. Whether a State is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.
The Court does not purport to decide whether a State may base a districting plan on something other than total population, but the Court, picking up a key component of the Solicitor General’s argument, suggests that the use of total population is supported by the Constitution’s formula for allocating seats in the House of Representatives among the States. Because House seats are allocated based on total population, the Solicitor General argues, the one-person, one-vote principle requires districts that are equal in total population. I write separately primarily because I cannot endorse this meretricious argument.
First, the allocation of congressional representation sheds little light on the question presented by the Solicitor General’s argument because that allocation plainly violates one person, one vote.3 This is obviously true with respect to the Senate: Although all States have equal representation in the Senate, the most populous State (California) has 66 times as many people as the least populous (Wyoming). See United States Census 2010, Resident Population Data, http://www.census.gov/2010census/data/apportionment-pop-text.php. And even the allocation of House seats does not comport with one person, one vote. Every State is entitled to at least one seat in the House, even if the State’s population is lower than the average population of House districts nationwide. U. S. Const., Art. I, §2, cl. 3. Today, North Dakota, Vermont, and Wyoming all fall into that category. See United States Census 2010, Apportionment Data, http://www.census. gov/2010census/data/apportionment-data-text.php. If one person, one vote applied to allocation of House seats among States, I very much doubt the Court would uphold a plan where one Representative represents fewer than 570,000 people in Wyoming but nearly a million people next door in Montana.4
Second, Reynolds v. Sims squarely rejected the argument that the Constitution’s allocation of congressional representation establishes the test for the constitutionality of a state legislative districting plan. Under one Alabama districting plan before the Court in that case, seats in the State Senate were allocated by county, much as seats in the United States Senate are allocated by State. (At that time, the upper houses in most state legislatures were similar in this respect.) The Reynolds Court noted that “[t]he system of representation in the two Houses of the Federal Congress” was “conceived out of compromise and concession indispensable to the establishment of our federal republic.” 377 U. S., at 574. Rejecting Alabama’s argument that this system supported the constitutionality of the State’s apportionment of senate seats, the Court concluded that “the Founding Fathers clearly had no intention of establishing a pattern or model for the apportionment of seats in state legislatures when the system of representation in the Federal Congress was adopted.” Id.,at 573; see also Gray v. Sanders, 372 U. S. 368, 378 (1963).
Third, as the Reynolds Court recognized, reliance on the Constitution’s allocation of congressional representation is profoundly ahistorical. When the formula for allocating House seats was first devised in 1787 and reconsidered at the time of the adoption of the Fourteenth Amendment in 1868, the overwhelming concern was far removed from any abstract theory about the nature of representation. Instead, the dominant consideration was the distribution of political power among the States.
The original Constitution’s allocation of House seats involved what the Reynolds Court rather delicately termed “compromise and concession.” 377 U. S., at 574. Seats were apportioned among the States “according to their respective Numbers,” and these “Numbers” were “determined by adding to the whole Number of free Persons . . . three fifths of all other Persons.” Art. I, §2, cl. 3. The phrase “all other Persons” was a euphemism for slaves. Delegates to the Constitutional Convention from the slave States insisted on this infamous clause as a condition of their support for the Constitution, and the clause gave the slave States more power in the House and in the electoral college than they would have enjoyed if only free persons had been counted.5 These slave-state delegates did not demand slave representation based on some philosophical notion that “representatives serve all residents, not just those eligible or registered to vote.” Ante, at 18.6
The Court’s account of the original Constitution’s allocation also plucks out of context Alexander Hamilton’s statement on apportionment. The Court characterizes Hamilton’s words (more precisely, Robert Yates’s summary of his fellow New Yorker’s words) as endorsing apportionment by total population, and positions those words as if Hamilton were talking about apportionment in the House. Ante, at 9. Neither is entirely accurate. The “quote” comes from the controversy over Senate apportionment, where the debate turned on whether to apportion by population at all. See generally 1 Records of the Federal Convention of 1787, pp. 470–474 (M. Farrand ed. 1911). Hamilton argued in favor of allocating Senate seats by population:
“The question, after all is, is it our interest in modifying this general government to sacrifice individual rights to the preservation of the rights of an artificial being, called states? There can be no truer principle than this—that every individual of the community at large has an equal right to the protection of government. If therefore three states contain a majority of the inhabitants of America, ought they to be governed by a minority? Would the inhabitants of the great states ever submit to this? If the smaller states maintain this principle, through a love of power, will not the larger, from the same motives, be equally tenacious to preserve their power?” Id., at 473.
As is clear from the passage just quoted, Hamilton (according to Yates) thought the fight over apportionment was about naked power, not some lofty ideal about the nature of representation. That interpretation is confirmed by James Madison’s summary of the same statement by Hamilton: “The truth is it [meaning the debate over apportionment] is a contest for power, not for liberty. . . . The State of Delaware having 40,000 souls will lose power, if she has 1/10 only of the votes allowed to Pa. having 400,000.” Id., at 466. Far from “[e]ndorsing apportionment based on total population,” ante, at 9, Hamilton was merely acknowledging the obvious: that apportionment in the new National Government would be the outcome of a contest over raw political power, not abstract political theory.
After the Civil War, when the Fourteenth Amendment was being drafted, the question of the apportionment formula arose again. Thaddeus Stevens, a leader of the so-called radical Republicans, unsuccessfully proposed that apportionment be based on eligible voters, rather than total population. The opinion of the Court suggests that the rejection of Stevens’ proposal signified the adoption of the theory that representatives are properly understood to represent all of the residents of their districts, whether or not they are eligible to vote. Ante, at 10–12. As was the case in 1787, however, it was power politics, not democratic theory, that carried the day.
In making his proposal, Stevens candidly explained that the proposal’s primary aim was to perpetuate the dominance of the Republican Party and the Northern States. Cong. Globe, 39th Cong., 1st Sess., 74 (1865); Van Alstyne,The Fourteenth Amendment, The “Right” to Vote, and the Understanding of the Thirty-Ninth Congress, 1965 S. Ct. Rev. 33, 45–47 (Van Alstyne). As Stevens spelled out, if House seats were based on total population, the power of the former slave States would be magnified. Prior to the Civil War, a slave had counted for only three-fifths of a person for purposes of the apportionment of House seats. As a result of the Emancipation Proclamation and the Thirteenth Amendment, the former slaves would now be fully counted even if they were not permitted to vote. By Stevens’ calculation, this would give the South 13 additional votes in both the House and the electoral college. Cong. Globe, 39th Cong., 1st Sess., 74 (1865); Van Alstyne 46.
Stevens’ proposal met with opposition in the Joint Committee on Reconstruction, including from, as the majority notes, James Blaine. Ante, at 11. Yet, as it does with Hamilton’s, the majority plucks Blaine’s words out of context:
“[W]e have had several propositions to amend the Federal Constitution with respect to the basis of representation in Congress. These propositions . . . give to the States in future a representation proportioned to their voters instead of their inhabitants.
“The effect contemplated and intended by this change is perfectly well understood, and on all hands frankly avowed. It is to deprive the lately rebellious States of the unfair advantage of a large representation in this House, based on their colored population, so long as that population shall be denied political rights by the legislation of those States. . . .
“The direct object thus aimed at, as it respects the rebellious States, has been so generally approved that little thought seems to have been given to the incidental evils which the proposed constitutional amendment would inflict on a large portion of the loyal States—evils, in my judgment, so serious and alarming as to lead me to oppose the amendment in any form in which it has yet been presented. As an abstract proposition no one will deny that population is the true basis of representation; for women, children, and other non-voting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot. . . .
“If voters instead of population shall be made the basis of representation certain results will follow, not fully appreciated perhaps by some who are now urgent for the change.” Cong. Globe, 39th Cong., 1st Sess., 141 (1865).
The “not fully appreciated” and “incidental evi[l]” was, in Blaine’s view, the disruption to loyal States’ representation in Congress. Blaine described how the varying suffrage requirements in loyal States could lead to, for instance, California’s being entitled to eight seats in the House and Vermont’s being entitled only to three, despite their having similar populations. Ibid.; see also 2 B. Ackerman, We the People: Transformations 164, 455, n. 5 (1998); Van Alstyne 47, 70. This mattered to Blaine because both States were loyal and so neither deserved to suffer a loss of relative political power. Blaine therefore proposed to apportion representatives by the “whole number of persons except those to whom civil or political rights or privileges are denied or abridged by the constitution or laws of any State on account of race or color.” Cong. Globe, 39th Cong., 1st Sess., 142.
“This is a very simple and very direct way, it seems to me, of reaching the result aimed at without embarrassment to any other question or interest. It leaves population as heretofore the basis of representation, does not disturb in any manner the harmonious relations of the loyal States, and it conclusively deprives the southern States of all representation in Congress on account of the colored population so long as those States may choose to abridge or deny to that population the political rights and privileges accorded to others.” Ibid.
As should be obvious from these lengthy passages, Blaine recognized that the “generally approved” “result aimed at” was to deprive southern States of political power; far from quibbling with that aim, he sought to achieve it while limiting the collateral damage to the loyal northern States. See Van Alstyne 47.
Roscoe Conkling, whom the majority also quotes, ante, at 11, seemed to be as concerned with voter-based apportionment’s “narrow[ing] the basis of taxation, and in some States seriously,” as he was with abstract notions of representational equality. Cong. Globe, 39th Cong., 1st Sess., 358; id., at 359 (“representation should go with taxation”); ibid. (apportionment by citizenship “would narrow the basis of taxation and cause considerable inequalities in this respect, because the number of aliens in some States is very large, and growing larger now, when emigrants reach our shores at the rate of more than a State a year”). And Hamilton Ward, also quoted by the majority, ante, at 11, was primarily disturbed by “[t]he fact that one South Carolinian, whose hands are red with the blood of fallen patriots, and whose skirts are reeking with the odors of Columbia and Andersonville, will have a voice as potential in these Halls as two and a half Vermont soldiers who have come back from the grandest battle-fields in history maimed and scarred in the contest with South Carolina traitors in their efforts to destroy this Government”—and only secondarily worried about the prospect of “taxation without representation.” Cong. Globe, 39th Cong., 1st Sess., 434.
Even Jacob Howard, he of the “theory of the Constitution” language, ante, at 12, bemoaned the fact that basing representation on total population would allow southern States “to obtain an advantage which they did not possess before the rebellion and emancipation.” Cong. Globe, 39th Cong., 1st Sess., 2766. “I object to this. I think they cannot very consistently call upon us to grant them an additional number of Representatives simply because in consequence of their own misconduct they have lost the property [meaning slaves, whom slaveholders considered to be property] which they once possessed, and which served as a basis in great part of their representation.” Ibid. The list could go on. The bottom line is that in the leadup to the Fourteenth Amendment, claims about representational equality were invoked, if at all, only in service of the real goal: preventing southern States from acquiring too much power in the National Government.
After much debate, Congress eventually settled on the compromise that now appears in §2 of the Fourteenth Amendment. Under that provision, House seats are apportioned based on total population, but if a State wrongfully denies the right to vote to a certain percentage of its population, its representation is supposed to be reduced proportionally.7 Enforcement of this remedy, however, is dependent on action by Congress, and—regrettably—the remedy was never used during the long period when voting rights were widely abridged. Amar 399.
In light of the history of Article I, §2, of the original Constitution and §2 of the Fourteenth Amendment, it is clear that the apportionment of seats in the House of Representatives was based in substantial part on the distribution of political power among the States and not merely on some theory regarding the proper nature of representation. It is impossible to draw any clear constitutional command from this complex history.
For these reasons, I would hold only that Texas permissibly used total population in drawing the challenged legislative districts. I therefore concur in the judgment of the Court.
1See, e.g., H. Pitkin, The Concept of Representation 4 (1967) (“[D]iscussions of representation are marked by long-standing, persistent controversies which seem to defy solution”); ibid. (“Another vexing and seemingly endless controversy concerns the proper relation between representative and constituents”); Political Representation i (I. Shapiro, S. Stokes, E. Wood, & A. Kirshner eds. 2009) (“[R]elations between the democratic ideal and the everyday practice of political representation have never been well defined and remain the subject of vigorous debate among historians, political theorists, lawyers, and citizens”); id., at 12 (“[W]e need a better understanding of these complex relations in their multifarious parts before aspiring to develop any general theory of representation”); S. Dovi, Political Representation, The Stanford Encyclopedia of Philosophy (E. Zalta ed. Spring 2014) (“[O]ur common understanding of political representation is one that contains different, and conflicting, conceptions of how political representatives should represent and so holds representatives to standards that are mutually incompatible”), online at http://plato.stanford.edu/archives/spr2014/entries/political-representation (all Internet materials as last visited Mar. 31, 2016); ibid. (“[W]hat exactly representatives do has been a hotly contested issue”).
2See, e.g., Andeweg, Roles in Legislatures, in The Oxford Handbook of Legislative Studies 268 (S. Martin, T. Saalfeld, & K. Strøm eds. 2014) (explaining that the social sciences have not “succeeded in distilling [an] unambiguous concept[ion]” of the “role” of a legislator); Introduction, id., at 11 (“Like political science in general, scholars of legislatures approach the topic from different and, at least partially, competing theoretical perspectives”); Diermeier, Formal Models of Legislatures, id., at 50 (“While the formal study of legislative politics has come a long way, much remains to be done”); Best & Vogel, The Sociology of Legislators and Legislatures, id., at 75–76 (“Stable representative democracies are . . . institutional frameworks and informal arrangements which achieve an equilibrium between the competing demands [of constituents and political opponents]. How this situation affects the daily interactions of legislators is largely unknown”).
3As Justice Thomas notes, ante, at 8–10 (opinion concurring in judgment), the plan for the House of Representatives was based in large part on the view that there should be “equality of representation,” but that does not answer the question whether it is eligible voters (as appellants urge), all citizens, or all residents who should be equally represented. The Constitution allocates House seats based on total inhabitants, but as I explain, the dominant, if not exclusive, reason for that choice was the allocation of political power among the States.
4The Court brushes off the original Constitution’s allocation of congressional representation by narrowing in on the Fourteenth Amendment’s ratification debates. Ante, at 13, n. 10. But those debates were held in the shadow of that original allocation. And what Congress decided to do after those debates was to retain the original apportionment formula—minus the infamous three-fifths clause—and attach a penalty to the disenfranchisement of eligible voters. In short, the Fourteenth Amendment made no structural changes to apportionment that bear on the one-person, one-vote rule.
5See A. Amar, America’s Constitution: A Biography 87–98 (2005) (Amar); id., at 94 (“The best justification for the three-fifths clause sounded in neither republican principle nor Revolutionary ideology, but raw politics”); see also id., at 88–89 (explaining that the “protective coloring” camouflaging the slave States’ power grab “would have been wasted had the Constitution pegged apportionment to the number of voters, with a glaringly inconsistent add-on for nonvoting slaves”); cf. G. Van Cleve, A Slaveholders’ Union 126 (2010) (“[T]he slave states saw slave representation as a direct political protection for wealth consisting of slave property against possible Northern attacks on slavery, and told the Convention unequivocally that they needed such protection in order to obtain ratification of the Constitution”); id., at 133–134 (“The compromise on representation awarded disproportionate shares of representative influence to certain vested political-economy interests, one of which was the slave labor economies”).
6See Amar 92 (“But masters did not as a rule claim to virtually represent the best interests of their slaves. Masters, after all, claimed the right to maim and sell slaves at will, and to doom their yet unborn posterity to perpetual bondage. If this could count as virtual representation, anything could”).
7Section 2 provides: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” Needless to say, the reference in this provision to “male inhabitants . . . being twenty-one years of age” has been superseded by the Nineteenth and Twenty-sixth Amendments. But notably the reduction in representation is pegged to the proportion of (then) eligible voters denied suffrage. Section 2’s representation-reduction provision makes no appearance in the Court’s structural analysis.
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LIBERTY is a State of Being!
LIBERTY begins in our own BACKYARD!