Who Counts When Drawing Legislative Districts? Evenwel v. Abbott

Who Counts When Drawing Legislative Districts? Evenwel v. Abbott


Evenwel v. Abbott was argued before the U.S. Supreme Court this week. The subject matter seems pretty technical: when legislative districts are drawn, who “counts” for the purposes of establishing equal districts?

A good place to start an exploration of this question is the U.S. Constitution itself.

Article I, Section 2, Paragraph 3 begins:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other persons.

The rest of the paragraph goes on to establish the timing of the census by which these numbers will be determined, sets the minimum number of persons per representative (and the exception of at least one representative even if a state does not have enough persons), and establishes the initial number of representatives per state pending the results of the first census.

The language of this paragraph was amended by the passage of the Fourteenth Amendment. In relevant part, that amendment reads: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. As will become important in a moment, this section goes on to establish sanctions to be imposed against any state that deprives any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, of the right to vote.

Thus it was established from the beginning that the apportionment of U.S. House seats to the several states was to be determined by the number of free persons living in that state, and later, with the abolition of slavery, simply the number of persons.

Not males. Not citizens. Not adults. Not voters.


Why does this matter?

Because the plaintiffs in Evenwel v. Abbott have argued that districts should be drawn to be equal, not in number of persons, but in number of eligible voters.

The Supreme Court is obliged to refer to the language of the Constitution and the statutes of this nation when ruling on the cases it entertains. Often, that language leaves room for interpretation . . . hence the need for the court.

When addressing the apportionment of seats (if you will, a kind of higher-level “districting” process) in a just and equitable manner, the Fourteenth Amendment pointedly refers to “persons,” just as Article 1 Section 2 of the Constitution does. That the Congress meant “persons” (male, female, young, old, of whatever race, nationality, creed, or culture, citizens and noncitizens) is evident in the fact that they specifically use a different term, “male,” when referring to voters (in an era when only males could be eligible to vote). “Males” are a proper subset of “persons”’; persons is a larger category.

Put simply, the Constitution pretty definitively declares that just apportionment of legislative seats is by number of persons, not number of voters.

This, however, does not necessarily resolve the issue before the court.

What is at issue in Evenwel is whether there is an obligatory standard for the establishment of equitable legislative districts. The Constitution may be clear about what standard shall be applied for apportioning seats to the states without mandating the application of that standard to related activities like drawing district lines. Indeed, the task of drawing district lines (even congressional district lines) is left expressly to the states. Since the 1960s, the court has recognized the Equal Protection Clause of the Fourteenth Amendment as setting some limitations on the exercise of that authority by states. But does equal protection, in this instance, extend to how states decide who to “count” when ensuring a fair process of elections?

As is so often true, the arguments before the court in this case focus on questions about the meaning of words and the intent of those who wrote them. The distinctions made by the various parties may seem abstract, but their consequences can be quite concrete.

In the case of Evenwel, those consequences are likely to have everything to do with the influence of cities and their residents on the course of politics and policy in state capitals and in Washington. If the plaintiffs win, cities will lose.

That doesn’t necessarily make the plaintiffs wrong. It does mean that all of us who care about cities have a reason to care about how those to be represented will be counted.

Next: Cities, Persons and Voters