The new Supreme Court term began this week. As usual there are some fascinating cases with the potential for major impacts. One of these is Evenwel v. Abbot. This is a case from Texas which challenges a long-held legal precept that the “one person, one vote” principle of the Equal Protection clause means that states must use total population when apportioning legislative districts. Evenwel argues that the proper measure is based upon voters, not just live bodies resident in the state. If Evenwel wins, there will be turmoil across the land as new redistricting rules are created and litigated.This is formulated as a legal dispute, but it is fundamentally a political argument. A finding for Evenwel will almost certainly benefit rural districts with small non-voting populations, i.e. the Republicans. Thus one might logically predict that the Court will split on ideological lines.
However it seems on face value that Section 2 of the 14th Amendment settles the matter conclusively. It provides that representatives in Congress “shall be apportioned among the states according to their respective numbers, counting the whole number of persons in each State.” But this ignores the historical basis and context of this wording, which was chosen to make absolutely clear that African-Americans were no longer to be counted as 3/5 of a person as had been the prior practice under slavery.
I have read many of the briefs presented on both sides. The basic argument supporting the current Texas standard, one which is applied in almost all other states, derives from Reynolds v. Sims (1964). The Court held that “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people.” The appellants in Evenwel argue that this impermissibly dilutes the votes of eligible voters by including aliens, children, convicted felons and others who don’t have the right to vote. As far as I can tell as a layman, the case-law and associated majority opinions cited in Evenwel lean heavily toward rejection of Evenwel’s claim. But there is a curious omission in these briefs. Perhaps it will arise in oral arguments. I hope so because I find it very persuasive.
The omission in all of the arguments derives from our founding document, The Declaration of Independence. While this has no force of law, it does establish the fundamental basis of our government, and any law violating its precepts should be subject to strict scrutiny at the very least. The second paragraph of the Declaration of Independence reads as follows, with the crucial phrase highlighted.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
In our political system, we express our consent in one way, and only one way, by voting. Those who are eligible to vote but elect not to use that privilege give implied consent. Not every resident of the United States is accorded the privilege of voting. Only those so privileged can give the necessary consent and hence only they can properly legitimize our government. Those who are not given this privilege, i.e. the groups that Evenwel seeks to exclude, have no right to delegate powers of government, even though they will nevertheless be bound by and protected by our laws. The “one person” in the phrase “one person, one vote” clearly means one of the group who are consenting to our government, the voters. Admittedly this is my reading, but this logic seems unassailable and Evenwel should prevail.