Supreme Court Avoids Redistricting Directive

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By Kimberly Strawbridge Robinson

April 4— All 50 states won't have to rethink their voter maps after a unanimous U.S. Supreme Court decision April 4.

The one-person, one-vote principle doesn't require states—and localities—to count only eligible voters when drawing legislative districts, the court said.

Total population, which all 50 states currently use, is a permissible metric, Justice Ruth Bader Ginsburg's opinion for the court said.

The decision is a win for Democrats, as it preserves voting power in urban, typically Democratic, areas. A decision going the other way would have excluded immigrants, children and others who aren't eligible to vote in determining state legislative districts.

But the court refused to decide what the Cato Institute's Ilya Shapiro, Washington, called April 4 the “elephant in the voting booth”—whether states must use total population when drawing legislative districts, or whether other population metrics are permissible.

The decision “allows states and municipalities the ability to experiment further with different populations considered in drawing district lines,” Edward Blum, of the conservative nonprofit Project on Fair Representation, Austin, Texas, said in a statement e-mailed to Bloomberg BNA.

The Project on Fair Representation funded the unsuccessful challenge to Texas's use of total—rather than voter—population.

Shifting Rural Voters

At its core, the case was about whether the one-person, one-vote principle, announced in Reynolds v. Sims, 377 U.S. 533 (1964), protects “the right of eligible voters to cast votes that receive equal weight,” or ensures that “all individuals within a district—voters or not—have an equal share of representation,” Justice Clarence Thomas explained in his concurring opinion.

The Supreme Court didn't resolve that question.

Instead, the court said that “based on constitutional history, this Court's decisions, and longstanding practice,” states may pursue representational equality by using total population.

That result isn't surprising, Derek Muller of Pepperdine School of Law, Malibu, Calif., told Bloomberg BNA April 4.

There was a lot of “skepticism about changing what had been long-established practices in virtually all states for many years, including what the Court had apparently approved in many previous cases,” he said.

In fact, a “decision going the other way would have forced every state and locality to reconsider how it went about drawing representative districts,” Muller said.

While many jurisdictions would've remained the same, jurisdictions with significant non-citizen or non-voter populations would've had to undergo significant changes, he said.

In particular, because a larger percentage of “undocumented people live in urban, Democrat areas,” a decision requiring states to consider only eligible voters would've “shifted more eligible voters out of rural, Republican districts, and into urban, Democrat ones,” Lisa Soronen of the State and Local Legal Center, Washington, told Bloomberg BNA before the case was argued.

Not Over Yet

The fact that the court left open whether states may equalize voters instead of population means the “issue of voter equality in the United States is not going to go away,” Blum said.

The “ruling leaves open to the states the ability to experiment further with populations considered in drawing district lines both for their own legislatures and federal House seats,” Shapiro said in a statement e-mailed to Bloomberg BNA.

He noted that some states “already exclude aliens, nonpermanent residents, nonresident military personnel, inmates who were not state residents prior to incarceration, and other non-permanent or non-voting populations.”

“It’s quite possible that a state or a locality will attempt to use citizen voting age population in the near future and bring a test case before the Supreme Court,” Muller said.

Strong Language

But that would come with risks.

While the Supreme Court “is careful to suggest that it is reserving for a later day whether a non-population base for redistricting is appropriate,” its “strong language favoring population” does “portend skepticism for using other means of drawing congressional districts,” Muller said.

That strong language was the reason Justice Samuel A. Alito Jr. concurred only in the result.

The court suggests that total population is the only viable metric, Alito said. That is a question the court has no need to wade into in this case, he said.

Any Flexibility?

But Justice Clarence Thomas did wade into that dispute. Also concurring only in the result, he said states should be free to use either total or voter population.

The court's refusal to say one way or the other leaves states guessing “how much flexibility (if any) they have to use different methods of apportionment,” Thomas said.

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

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

Full text at http://www.supremecourt.gov/opinions/15pdf/14-940_ed9g.pdf.