Defining 'One Person, One Vote': The Supreme Court Returns to the Political Thicket

Chief Justice Earl Warren considered them to be the most significant decisions of his tenure, and they have paved the way for one of the most important voting-rights cases in the past half-century. In the landmark cases of Baker v. Carr (1962) and Reynolds v. Sims (1964), the Supreme Court departed from its prior practice of treating questions about legislative reapportionment as "political questions" that were no business of the federal judiciary, declared that a constitutional "right to vote freely for the candidate of one's choice existed," and held that "a debasement or dilution of the weight of a citizen's vote" unduly infringed upon that right. In Reynolds, the Court, with Warren writing for the majority, set forth a principle -- one person, one vote -- that catalyzed massive electoral reform and became embedded in Americans' consciousness.

But what does "one person, one vote" mean, exactly?

Presumably no one would disagree with Warren's statements in Reynolds that "[l]egislators represent people, not trees or acres" and "[c]itizens, not history or economic interests, cast votes." Yet Warren's analysis is notably devoid of references to constitutional text or history, and the Court left open the question of which population apportionment base could or should be used by states to implement the Court's newly-minted principle. In Evenwel v. Abbott, set to be argued this term, the Court will confront and (hopefully) finally answer the latter question in a politically explosive case -- one that could decisively shift electoral power away from urban, predominantly Democratic voters and towards rural, predominantly Republican voters in a number of jurisdictions.

It is worth stepping back and reflecting upon not only upon Reynolds but upon whether the Court should have made its way into what Justice Felix Frankfurter (who vehemently dissented in Baker) referred to as the "political thicket" of electoral gerrymandering in the first place.

The Court's leading reapportionment decisions -- and Reynolds in particular -- were reached on the basis of broad principles of political theory, not inquiry into the Constitution's literal text or history. Like the Supreme Court's first Chief Justice, John Marshall, Warren in a number of landmark cases went beyond the Constitution's text, drawing upon "general principles which are common to our free institutions." Thus, while the drafters of both the original Constitution and the Reconstruction Amendments assumed that the franchise could be restricted for various reasons, Warren nonetheless concluded that assigning different weights to different votes was constitutionally impermissible because it was contrary to the Constitution's basic premises.

As he put it in Reynolds, "A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm... This is an essential part of the concept of a government of laws, and not men." Warren derived voter equality from human equality and the principle of lawful, non-arbitrary rule. On these premises, to underweigh the value of votes was to affirm that some people are more equal than others and for the Court to allow legislatures to do so would be to acquiesce to an exercise of arbitrary government power. To ensure that no such vote dilution took place, Warren explained, "substantial equality of population among the various districts" would henceforth be required in apportionment "so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State."

What population was Warren referring to? In context, it is plain that he meant total population, which at the time served as a generally reliable proxy for voter population. For many years (with one notable exception), total population served as the apportionment base in redistricting. Equal population districts served as an answer to critics who charged that no judicially manageable standards for protecting the right to vote were available. Any judge could do the math.

Today, demographic changes have made matters more complicated. In part because of increases in the non-citizen population, the correlation between total population and voter population assumed by the Reynolds Court has broken down in certain places. Case in point: the two senate districts concerned in Evenwel v. Abbott, both of which were drawn by the Texas legislature in 2013. State Senate District 1, where Sue Evenwel lives, has 573,895 citizens of voting age, which is over 200,000 more than the senate district with the fewest number of adult citizens. As a result, her vote carries far less weight than those of citizens in districts where fewer votes are required to elect a state senator.

Such vote dilution poses a genuine and pressing challenge, given Reynolds' sweeping language. ("To the extent that a citizen's right to vote is debased, he is that much less a citizen.") Do today's demographic changes mean that total population must give way to citizen or voter population as an apportionment base? Not necessarily.

Even if one believes that voter equality is the touchstone for evaluating apportionment, it may not be possible to do better than total population as an apportionment base. Nate Persily, for instance, has argued that current data on citizenship and registered voters is "simply too inaccurate or contested to be used in redistricting."

Any decision at all will have broad political ramifications: a ruling in favor of the challengers would be a boost for white voters in rural areas that tend to vote Republican and would correspondingly diminish the voting power of Latino voters who tend to live near non-citizens and vote Democrat.

Given the politically fraught character of apportionment controversies and the lack of any firm textual or historical hook for "one person, one vote," should the Court have followed the hands-off counsel of Justice Frankfurter rather than entering this arena at all? It is difficult to argue with the political theory articulated in Reynolds. The Constitution does rest on a premise of human equality, government in the United States does derive its authority from the people, and the just powers of government are inherently limited, whether at the federal, state, or local level.

Under our Constitution, government officials do not have absolute, unchecked power, and they are bound always to adhere to rational, genuinely public principles rather than serving the interests of a favored few. The essential evil at which the Warren Court's reapportionment cases were directed was the creation of districts designed to enhance the voting power of particular interest groups. Such special interest gerrymandering, by definition, is not public-spirited -- it allows politically powerful factions to control electoral outcomes and ensure that their voices are heeded first and foremost by legislators.

Thus, even if one rejects the notion that strict numerical equality in apportionment is constitutionally required, the Court could no more withdraw from evaluating apportionment schemes than it could withdraw from reviewing any other colorable allegation of official abuses of power. Like ordinary people, government officials do things for a reason -- that is, they seek particular ends, and those ends may or may not be constitutionally permissible.

If an apportionment policy results in one citizen's vote being worth significantly less than another's, there should be an explanation for that policy, and the explanation must be amount to something more than a mere preference on the part of certain policymakers for a lack of electoral competition. Judicial engagement -- impartial, evidence-based judicial truth-seeking into the constitutionality of the government's true ends--is proper here no less than anywhere else.

In the decision below in Evenwel, the district court for the Western District of Texas abdicated its responsibility to require such an explanation. Instead, it simply deferred to the legislature in a terse, ten-page opinion, noting that the Court has "never held that a certain metric (including total population) must be employed as the appropriate metric" and stating that "it is not the role of the federal courts to impose a 'better' apportionment method on a state legislature if that state's chosen method does not itself violate the Constitution." But this begs the question: is an apportionment method that renders Sue Evenwel's ballot nearly half as weighty as that of other voters in her state reasonable today?

That is the question the Court must engage in Evenwel, rather than simply punting it back to legislators with little incentive to exercise their power in a responsible manner. As Chief Justice Warren wrote in Reynolds, a "denial of judicially protected rights demands judicial protection; our oath and our office require no less." Evenwel represents a valuable opportunity for the Court to not only clarify its case law concerning reapportionment but also affirm a vital principle central to our law: the Constitution protects citizens against arbitrary action by government in every field.