Adam Liptak reports.
The basic question in the case, Evenwel v. Abbott, No. 14-940, is who must be counted in drawing voting districts: all residents or just eligible voters?
The difference matters, because people who are not eligible to vote — children, immigrants here legally who are not citizens, unauthorized immigrants, people disenfranchised for committing felonies, prisoners — are not spread evenly across the country. With the exception of prisoners, they tend to be concentrated in urban areas.
So there are 2 theories of which people to count as population proportionate districts are drawn. Think it through: 1. Which party is advantaged by each theory? 2. Which approach is better as a matter of nonpartisan principle? (Does the chosen official represent those who voted for him or everyone in the district?) 3. Is each state free to pick either theory or does the constitutional right to equal protection require one (and which one!)?
Did your answer on question 1 drive your answers on questions 2 and 3? You might have gotten question 1 wrong, you know, so be careful! I think a lot of people have an instinctive answer to #1 that's wrong. I recommend checking your work with a pencil-and-paper diagram.
ADDED:
Here's the transcript of the argument. I'm surprised to see Justice Breyer bring up what he refers to as the
Republican Form of Government Clause (which is more commonly called the
Guarantee Clause ("The United States shall guarantee to every State in this Union a Republican Form of Government")). For a long long time, that clause has been held nonjusticiable (
i.e., not within the purview of the courts). But Breyer suggests that it should affect the meaning of Equal Protection, permitting an interpretation based on "the kind of democracy where people, whether they choose to vote or whether they don't choose to vote, are going to receive a proportionate representation in Congress."
The lawyer trying to require the states to exclude noneligible voters from the calculation drew questions only from the liberal side of the Court. The state's Solicitor General stressed that the only question is whether the state is forbidden to use the whole population (which is what all the states currently do). On page 29, Justice Alito notes the difference between arguing that "total population figures are a good enough proxy for eligible voters" and arguing that "representational equality is the real basis, and therefore that's why you use population." The SG says he's not making
either argument (because he wants it to be that the state is free to do it either way).
On page 31, we hear from Justice Kennedy: "Well, if the voter population is a permissible basis under the Constitution, I assume that's because there is is
an ethical, a good government, a liberty interest in protecting these voters... Well, if in a case like this where there is a 45 percent deviation, something of that order, then why isn't Texas required at that point to recognize that these interests that are legitimate under the Constitution, which are voter based, should not be accommodated, and so that you should at least give some consideration to this disparity that you have among voters?" That is, at some point, the difference between the 2 approaches is so great that the usual reliance on total population may become an Equal Protection violation.
There's also argument from the United States taking the position that the state is not only permitted to district based on the whole population but it is also
required to do so. "It would be very odd," the lawyer says, bolstering the state's argument, "for the Court to demand, as a constitutional standard, data that does not even have to be collected." But why is it not even permissible? Another way to look at that is: If it would be so incredibly difficult to do, no state will opt to try it, and the Court will never have to say whether it's permissible.
MORNING UPDATE: It's easy to predict that the Court will reject this claim and let the states keep relying on the longstanding population-based method of redistricting. Even though there's some principled sense to the eligible-voter-based method, there's also principled support for the existing method. It would need to be much more obvious that there's something wrong with the existing method before the Court would declare that what's been done for so long is not even permissible, especially when it would require states to undertake so much difficult and expensive new work and to draw many new and sure to be contentious lines.
If the Court were anywhere near to making a decision like this, Justice Scalia would have grilled the state's lawyer. In fact, he asked an astounding total of
zero questions. This oral argument was interesting in the way it shone a light on the inaccuracy of the concept of "one person, one vote" that we've taken as a stunningly correct precept for half a century. So be a tad less fuzzy-headedly idealistic and face reality. That's always a pretty decent idea.
UPDATE, April 4, 2016:
The Court decides as predicted and unanimously.