The Supreme Court seems awfully keen on white voting power

The Supreme Court heard oral arguments in two voting rights cases yesterday, Harris v Arizona Independent Redistricting Commission and Evenwel v Abbott. In both cases, the Court appeared much more open than expected to arguments that would solidify white, and by extension Republican, voting power in both Congress and state legislatures across the country.

The first case represents a challenge to an independent redistricting process that Arizona’s voters approved by ballot initiative a few years ago. The plaintiffs were challenging the maps as having been rendered illegal retroactively by the Supreme Court’s 2013 decision to invalidate much of the Voting Rights Act. As ThinkProgress’s Ian Millhiser, who attended yesterday’s oral arguments, explains:

These maps were drawn before the Court’s 2013 decision tossing out much of the Voting Rights Act, and they contain small deviations in population (less than 10 percent at their peak) across districts. A federal district court determined that compliance with the (pre-2013) Voting Rights Act was “the predominant reason for the deviations,” although there is evidence that some of the commissioners were motivated in part by partisanship when they drew at least one district. As Justice Stephen Breyer noted, however, the hints of partisanship appear to have come from Democratic commissioners, whose views were balanced out by an equal number of Republican commissioners.

The redistricting process is, in most cases, explicitly partisan: in all but a few states, the state legislatures draw the district lines. In states where Republicans have control of the legislature, lines are drawn such that Republicans are overrepresented. In states where Democrats control the legislature, the reverse is often true. So it was surprising, and distressing, when the Republican-appointed Justices expressed higher-than-usual levels of skepticism at the validity of district maps that contained even the slightest hint of partisan motivation. As Millhiser continues:

The Supreme Court, via Wikimedia Commons

The Supreme Court, via Wikimedia Commons

[Lawyer for the defendants Paul] Smith…seems to spend much of the argument in a state of incredulity — at one point, he cites a case from just a few months ago which suggests that partisanship is allowed in the redistricting process. And Smith has good reason to be incredulous. Among other things, Smith argued what are probably the two mostimportant partisan gerrymandering cases of the last decade-and-a-half, and the conservative end of the bench seemed much less bothered by partisan redistricting in those cases than they did in Harris. Indeed, in 2004’s Vieth v. Jubelirer, Scalia concluded that federal courts weren’t even allowed to hear a constitutional challenge to a partisan gerrymander in Pennsylvania. Though Kennedy did not go quite that far, his separate opinion still left plaintiffs seeking to challenge such gerrymanders with few, if any, options.

Taken together, it appears as though the Court’s more conservative justices are fine with partisan gerrymanders so long as no one pretends they aren’t partisan, but independent redistricting panels — charged with being completely fair and balanced — can and should be held to a different standard. While Millhiser notes that this argument likely doesn’t have the five votes necessary to carry the decision, it’s troubling that such an argument was taken seriously at the Court yesterday.

Much more distressing, however, were the oral arguments in Evenwel, which considers whether the standard of “one person, one vote” for the apportionment process should be redefined as “one eligible voter, one vote.”

The Fourteenth Amendment makes it clear that “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state.” However, the plaintiffs in Evenwel are arguing that there is room for interpretation as to how states can draw district lines after the initial number of representatives has been apportioned. Specifically, they are arguing that states — in their case Texas, which has a lot of people who aren’t eligible to vote (mostly children, felons and non-citizens) — should be allowed to draw district lines based such that each district contains the same number of eligible voters.

This would doubly amplify white voting power in states with large non-voter populations, as non-voters would be counted when states like Texas are allocated seats in Congress and then excluded when Texas draws district lines.

As I’ve written before, there are lots of problems with the plaintiffs’ proposal, and just because many people — including citizens such as children and felons — would be subject to laws that were written under a system that excluded them from the representation process should the plaintiffs prevail in Evenwel. On a more practical level, drawing district lines based on the number of eligible voters in the district is a logistical nightmare. Our decennial census doesn’t ask about eligibility to vote, meaning that the data necessary to implement such a standard doesn’t exist. Furthermore, as Millhiser reports:

Justice Kennedy at one point asks whether states could square the circle by drawing districts that have both equal total population and equal voter population, a task that may prove mathematically impossible in some states, and that is likely to produce extraordinarily misshapen districts in others. Justice Stephen Breyer, meanwhile, raises another serious problem — children. If non-voters can no longer be counted when drawing legislative districts, then states will need to identify which residents are over the age of 18 and only count those residents during redistricting. As Principal Deputy Solicitor General Ian Gershengorn notes, this would render maps illegal in states where residents of certain areas are more likely to have more children than residents of other areas (a divide that sometimes falls along rural/urban lines).

Nevertheless, Millhiser came away with the sense that there may in fact be five votes in favor of the plaintiffs in Evenwel, which is to say that Anthony Kennedy seems convinced. That would be a disaster for non-white representation across the country, but a disaster in keeping with the Roberts Court.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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