The Supreme Court on Tuesday wrestled with fundamental questions about American democracy and the right to vote. And the justices did not seem to have many answers.
The biggest question before the Court was about the meaning of “one person, one vote”—the doctrine that’s supposed to guide states as they draw their legislative districts.
Some conservatives say “one person, one vote” has been misunderstood and misapplied for decades. And if they win their case in court, Republicans’ already sizeable advantage in state politics would likely grow even stronger. Such a ruling would dilute Democratic-leaning districts, shifting more power to conservative-leaning suburbs.
The words “one person, one vote” don’t appear in the Constitution, but have emerged as a sort of catch-all for the Constitution’s various guarantees of equal representation. For decades, the states have taken the words “one person” rather literally: They’ve drawn legislative districts to contain roughly equal numbers of people.
Some conservatives, though, say the policy of “one person, one vote” really ought to ensure that each person’s actual vote counts the same as everyone else’s — they want districts drawn to contain similar numbers of eligible voters, not total people. That would be a huge change, and would almost certainly benefit Republicans, by diluting the power of dense urban areas that tend to lean Democratic.
So who, exactly, is the doctrine supposed to protect?
The Court was divided over that question Tuesday, and efforts to tease out a middle ground didn’t make much headway. Broadly, the debate broke down along partisan lines, with the Court’s more liberal justices inclined to keep the existing total-population metric and conservatives more open to at least allowing states to count eligible voters, instead.
But the justices’ questions were considerably less aggressive than the tone tends to be in these high-stakes cases. And Justice Anthony Kennedy, who seems likely to reprise his role as the Court’s swing vote, appeared genuinely torn.
“Why can’t you use both?” he at one point asked Scott Keller, the solicitor general of Texas, who defended his state’s decision to draw legislative districts with similar numbers of total residents.
Keller, joined in part by the Justice Department, said states can divvy up districts based on the overall population because that system helps ensure that everyone is represented.
Democratic-leaning areas, particularly in states like Texas, tend to have a higher proportion of residents who aren’t eligible to vote—children, immigrants who are not U.S. citizens, felons, and so on. Those people should all be represented by their government, even though they can’t vote, the liberal justices argued.
“There’s a representational need at issue as well, not just voting. A state has to be able to say ... the legislature is protecting not just voters; it’s protecting its citizens, or noncitizens—the people who live there,” Justice Sonia Sotomayor said.
The case, Evenwel v. Abbott, was filed by two Texas voters who say their votes were diluted because they live in areas where most residents are eligible to vote. Their votes aren’t as powerful as some other Texans’, they argued, because their votes are a smaller share of the votes within their districts—and, therefore, the number of eligible voters should be equalized, not the number of people.
The Court’s conservatives were open to that interpretation. “Well, it is called ‘one person, one vote.’ That seems to be designed to protect voters,” Chief Justice John Roberts said.