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Redistricting Case Appears to Divide U.S. Supreme Court

Should children and noncitizens count in drawing political districts?

By Ralph K.M. Haurwitz

Should children and noncitizens count in drawing political districts?

No, say two Texans who are suing the state over how districts are created. The U.S. Supreme Court will hear arguments in the case Tuesday.

Sue Evenwel and Edward Pfenninger want the justices to revise the way the Legislature draws state Senate boundaries in the once-a-decade redistricting process, revisiting the long-held principle of "one person, one vote."

If they prevail, legislatures in all 50 states, as well as city councils, county commissioners courts, school boards and any other political entity with population-based districts could be required to undergo the chaotic process of redrawing district lines based on the total number of registered voters (or possibly eligible voters), not the total population, as has been the case for decades in practically every state in the country.

Also, if the plaintiffs win their case, boundaries for some urban districts would stretch into broader suburban areas. The result could dilute the representation of minorities, opponents of the plaintiffs have said.

Opponents say the effects would be drastic:

-- Hispanics would be underrepresented for two reasons: There are more Hispanic noncitizens and more Hispanic children than other groups have.

-- Some parts of the state -- such as Dallas, Houston and the Rio Grande Valley -- could see the overall number of districts reduced because of the relatively high proportion of people in those areas who aren't eligible to cast ballots.

-- Some suburban districts could face reduced representation due to the higher than average number of children.

-- Conversely, rural areas could gain clout since they generally have higher rates of eligible voters than urban areas and suburbs. Particularly, Northeast Texas could gain a new state Senate district or two.

-- The populations of each district could end up varying to a great degree.

Evenwel and Pfenninger live in largely rural state Senate districts that have more eligible voters than districts in other parts of the state. They argue that the disparity gives urban voters more sway than they have.

The plaintiffs' brief says that the "one-person, one-vote principle protects the rights of voters to an equal vote. A statewide districting plan that distributes voters or potential voters in a grossly uneven way therefore is patently unconstitutional."

The only reference to population and political districts in the Constitution requires the use of the decennial census as the basis for divvying up congressional districts among the states, said Stanford University law professor and political scientist Nathaniel Persily. He said the challengers are arguing that the only population count prescribed by the Constitution should not be allowed to be used to draw political districts.

The legal challenge is being financed by Edward Blum, whose Project on Fair Representation also is behind a University of Texas affirmative action challenge that will be argued before the high court on Wednesday, as well as the lawsuit that led to the 2013 decision that wiped away a key element of the federal Voting Rights Act.

Other redistricting cases -- including one in Texas that also could be bound for the Supreme Court -- generally are based on alleged violations of the Voting Rights Act.

But the case being argued Tuesday brings together civil rights lawyers with the lawyers from the attorney general's office who have opposed each other in courtrooms for years, even if they're opposing the plaintiffs for different reasons.

Texas is defending its ability to use total population when creating districts. The state has chosen to depend on total population, just like most other states in the country. And Texas officials don't want to let Evenwel force them to adhere to new standards.

Nina Perales, who submitted a brief with the court for Hispanic state senators and the Mexican American Legislative Caucus, said that the plaintiffs' plan would "subtract decades of progress from the Texas redistricting maps" and eliminate Hispanic districts.

It would "strip state legislative seats out of Houston, Dallas and South and West Texas and create grossly oversized districts of up to 1 million people"; also, the "radical change in apportionment and representation will harm the voters who live in communities with significant Latino populations," the brief said.

The brief went on to say that such "super-sized" legislative districts would force people to compete with "a vast number of other constituents for state resources and responsive legislation."

(c)2015 Austin American-Statesman, Texas

Caroline Cournoyer is GOVERNING's senior web editor.
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