Thoughts on today's "one person, one vote" decision

|The Volokh Conspiracy |

http://www.washingtonpost.com/video/politics/the-supreme-court-ruling-on-one-person-one-vote-in-60-seconds/2016/04/04/3d73e4dc-fab0-11e5-813a-90ab563f0dde_video.html

The Supreme Court today issued its decision in Evenwel v. Abbott, an important case addressing the meaning of the "one person, one vote" principle. In a rare show of unanimity on an important issue, the Court was unanimous in concluding that states may, if they wish, apportion legislative districts by total population rather than by the total number of eligible voters or registered voters. It did not resolve the issue of whether states are actually required to use the total population standard, and thereby forbidden to adopt any of the several other plausible interpretations of "one person, one vote."

In my view, Justice Ruth Bader Ginsburg's majority opinion is absolutely right to conclude that nothing in the Constitution forbids states from apportioning districts based on total population. She is also right to emphasize that nothing in the Court's precedents forbids that approach (though, as she recognizes, some cases do suggest that other approaches to apportionment are permissible, as opposed to required). Finally, she emphasizes that "[a]dopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries."

Currently, all states use some version of total-population apportionment. Requiring them to follow the eligible voter or registered voter approach would lead to a major upheaval, and might in many cases be very difficult to implement, because we don't currently have a reliable data base on the numbers of citizens and eligible voters who live in each given geographic area. Mandating a radical departure from present practice might nonetheless be justified if it were clearly required by the text or original meaning of the Constitution. But there is no good reason to believe that it is.

One Person One Vote

Justice Ginsburg might have strengthened her already powerful opinion by pointing out that total-population and eligible voter districting are far from the only plausible interpretations of "one person, one vote." One can also make a reasonable case for districting based on the total number of citizens, or the total number of legal residents, and perhaps other approaches, as well. The Supreme Court has no principled basis for choosing between these options, and nothing in the Constitution mandates any one of them.

Even more than with Justice Ginsburg's majority opinion, I agree with Justice Clarence Thomas's concurring opinion, which argues that "one person, one vote" districting is not required by the Constitution at all:

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….

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.

As Thomas emphasizes, the Constitution does not set up a pure system of majoritarian democracy, but instead balances majoritarianism with many countermajoritarian elements— most notably the extremely unequal apportionment of the Senate. It is implausible to conclude that either the Guarantee Clause (which requires each state to have a "republican" form of government) or the Fourteenth Amendment requires a rigid form of apportionment that is at odds with that built into the structure of the federal government, and also the policies of many of the states at the time both the original Constitution and the Fourteenth Amendment were enacted. The Constitution does, of course, forbid apportionment founded on invidious discrimination on the basis of race and other suspect classifications. But it does not require any particular numerical formula, whether based on total population, voter population, or anything else.

The "one person, one vote" formula is not required by anything in the text or original meaning of the Constitution. While there are plausible "living constitution" arguments for one person, one vote, there are also plausible nonoriginalist arguments against it, given the widely recognized need to limit majoritarian power, and offset other kinds of political inequalities. There might be cases of malapportionment so extreme that the resulting government could not be considered "republican" at all. But merely deviating, substantially, from one or another possible interpretation of "one person, one vote" does not get us to that point, or anywhere close to it.