Republican Redistricting Rows Rock SCOTUS

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By Kimberly Robinson

Dec. 8 — The one-person, one-vote principle was at the center of oral arguments at the U.S. Supreme Court Dec. 8 in two cases that tackle the bedrock voting doctrine from different directions.

Both cases could have significant impacts for redistricting disputes nationwide. In particular, the Texas challenge in Evenwel could affect how immigrants—both those entering the country legally and illegally—are counted for redistricting purposes.

Evenwel v. Abbott asks whether states can focus on total population when drawing voter maps, or whether they must count only eligible voters. The answer to that question has the potential to change the very nature of redistricting, Texas Solicitor General Scott A. Keller, Austin, Texas, told the justices during oral argument.

In Harris v. Ariz. Indep. Redistricting Comm'n, the justices will consider the use of partisanship in creating voter maps.

If the court holds that a deviation from the one-person, one-vote principle can never involve partisanship, “every single plan will be up for grabs in every single place, Justice Elena Kagan said.

Challengers in both Evenwel and Harris claim that their state voter maps disadvantage Republican voters. Questions from the justices during oral argument suggested that the ultimate outcomes in these cases might also be largely split along ideological lines.

50 Percent Dilution.

The argument in Evenwel seemed to boil down to what the one-person, one-vote principle announced in Reynolds v. Sims, 377 U.S. 533 (1964), was meant to protect—the right to equal representation or the right to affect the outcome of a particular election.

There are really dual interests at stake, Justice Sonia Sotomayor said—a voter interest and a representational one.

If the doctrine is principally meant to protect the right of every person to be represented by their government, states should use total population when drawing voter maps, she explained. That would count immigrants, children, prisoners and the mentally ill, who typically can't vote, but who still need representation by government officials.

On the other hand, if one-person, one-vote is predominantly meant to protect the right to an equal vote in each election, then states should use eligible voter population.

If the doctrine is going to provide any reasonable protection to eligible voters, the voter interest must take primacy, William S. Consovoy, arguing on behalf of the map's challengers, said.

Consovoy, of Consovoy McCarthy Park PLLC, Arlington, Va., noted that Texas's use of total population here led to 50 percent vote dilution for voters in the districts packed with more eligible voters.

Tradition Doesn't Trump Constitution.

But for the last half century, states have overwhelmingly used total population as their redistricting metric, Justice Ruth Bader Ginsburg said.

Was that invalid, she asked.

Under Reynolds v. Sims, one-person, one-vote is constitutionally compelled by the equal protection clause, Consovoy said. Tradition can't trump the U.S. Constitution, he responded.

The Constitution also says that districts for the U.S. House of Representatives must be made up of total population, Kagan said. She said she couldn't get her head around Consovoy's argument that the Constitution requires states to use total population in one redistricting context, but completely forbids it in another.

Practical Problems.

Arguing in defense of the Texas maps, Keller said the issue should be left to the states to decide. “It is part of the dignity of state sovereignty to be able to structure elections,” he said. It's a “core sovereign function.”

A decision requiring states to use eligible voter population would force every state to change its redistricting measure, Keller added.

But Justice Anthony M. Kennedy wondered why states couldn't take both interests into consideration.

With nearly a 50 percent deviation in voting power, the voting interest here is being significantly disregarded, he said. When the case is so extreme, shouldn't the state have to account for both interests, Kennedy wanted to know.

There is no evidence that could be done as a practical matter, Keller said, pointing to problems with getting information about eligible voters.

As opposed to census data that is used in the total population metric, the data with respect to eligible voters “does not exist at the level of granularity, accuracy and timeliness needed to redistrict,” the Department of Justice's Ian H. Gershengorn, Washington, said for the United States as amicus curiae in support of the state.

Keller also said that apart from the informational limitations, having to balance both total population and eligible voter population would almost certainly preclude the state from taking other redistricting factors into consideration. “States would inevitably have to disregard many other traditional redistricting factors, like compactness, continuity, keeping communities together,” he said.

Gerrymandering Solved.

But Consovoy countered that “all other rights are illusory if the right to vote is taken away.”

He added that if states were forced to account for both the representational and voter interest, “there would be no opportunity to engage in the political and racial gerrymandering that has come to dominate the redistricting process.”

The Supreme Court would no longer be involved in those issues, as they would be resolved legislatively during redistricting, Consovoy said.

He pointed to the previous argument in Harris v. Ariz. Indep. Redistricting Comm'n as an example of a case that wouldn't be before the justices if states took account of eligible voters.

Minor Deviation.

In Harris, the challengers allege that Arizona improperly diluted voting power to gain a political advantage for Democrats.

But instead of the 50 percent voter dilution at issue in Evenwel, Harris involves a less than 10 percent population deviation.

That's the kind of minor deviation that the Supreme Court has previously said is okay, Justice Stephen G. Breyer said.

That just makes it harder for the challengers to make their case, but it doesn't preclude them from bringing it, Mark F. Hearne II, arguing for the challengers, said.

Here, the lower court found that the partisanship “played a role” in redistricting, Hearne, of Arent Fox LLP, Washington, said. That's something states can't do without running afoul of the one-person, one-vote principle.

Necessary Evil.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. wanted to know if partisanship could ever play a role in deciding to deviate from perfect population, or if it automatically invalidated any deviation.

Roberts in particular grew frustrated at the Department of Justice's Sarah E. Harrington's refusal to take a position on the question. Harrington was arguing for the United States as amicus curiae in support of Arizona's voter map.

When Harrington responded that politics always played a role in redistricting, Roberts responded, “There's a difference between, ‘Something's a necessary evil,' and saying it's evil.”

Where's the Beef?

But Justice Antonin Scalia wondered what evidence there was that there was any evil here. “What kind of evidence did you present” in support of the claim that the state improperly used partisanship, he asked Hearne.

The numbers bear out that “districts were systemically, statistically malapportioned” for political reasons, Hearne responded.

Taking issue with that characterization, Paul M. Smith, of Jenner & Block, Washington, said that, at most, partisanship made up “a tiny, tiny, tiny sliver” of the redistricting process.

Arguing in support of the state's voter map, he said, “This is a case where you wonder: Where's the beef? What exactly are we here for.”

“There's no problem with this map. It's not a partisan gerrymander. It's not a racial gerrymander. It's within the 10 percent boundary. They did everything in the open,” he said.

Arizona Attorney General Mark Brnovich, Phoenix, argued on behalf of the Arizona Secretary of State against the state voter map.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com

Evenwel argument transcript at http://src.bna.com/brE.

Harris argument transcript at http://src.bna.com/brF.