Evenwel v. Abbott

578 U.S. _

Case Year: 2016

Case Ruling: 8, Affirmed

Opinion Justice: Ginsburg

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Alito, Breyer, Kagan, Kennedy, Roberts, Sotomayor, Thomas


1st Concurring Opinion

Author: Thomas


1st Dissenting Opinion



2nd Concurring Opinion

Author: Alito

Joiner(s): Thomas

2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


Under the Equal Protection Clause “one-person, one-vote” principle, states must construct their state legislative districts so that the districts are roughly equal in population. But the Supreme Court has never defined the population that must be equalized. Texas, like all other states, draws its state legislative districts so that each district is approximately the same size based on total population as determined by U.S. Census data. Sue Evenwel and Edward Pfenninger, voters in Texas Senate districts 1 and 4, respectively, sued the state, arguing that the Texas districting scheme violates the one-person, one-vote principle. Specifically, they argue that the Texas districting scheme based on totalpopulation dilutes their votes in relation to voters in other districts. They claim that the state should draw district lines based on eligible-voterpopulation rather than totalpopulation.

            The differences between districting based on total population vs. voter-eligible population can be substantial, especially in a state like Texas. The voter-eligible universe excludes individuals who do not have the right to vote, such as children, noncitizens, felons, the mentally ill, members of the military on temporary assignment, and illegal aliens. These are people who are counted when total population is used to determine legislative districts. The excluded populations are not uniformly distributed across the state. Rather, there are systematic differences. The families in some districts tend to have more children than families in other districts; non citizens and illegal aliens also tend to cluster in certain locations; military bases are located in particular districts. In addition, counting all persons in calculating district size tends to favor urban areas over rural areas. In the case of Texas, the current districting scheme results in the largest district in voter-eligible population to be about 47% larger than the smallest district. This exceeds the 10% disparity level normally allowed under the Supreme Court’s reapportionment jurisprudence.

            A three-judge district court rejected the plaintiff’s claims and dismissed the case. Evenwel and Pfenninger appealed directly to the Supreme Court.


JUSTICE GINSBURG delivered the opinion of the Court:

Texas, like all other States, draws its legislative districts on the basis of total population. Plaintiffs-appellants are Texas voters; they challenge this uniform method of districting on the ground that it produces unequal districts when measured by voter-eligible population.Voter-eligible population, not total population, they urge, must be used to ensure that their votes will not be devalued in relation to citizens’ votes in other districts. We hold, based on constitutional history, this Court’s decisions, and longstanding practice, that a State may draw its legislative districts based on total population. . . .

In agreement with Texas and the United States, we reject appellants’ attempt to locate a voter-equality mandate in the Equal Protection Clause. As history, precedent, and practice demonstrate, it is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts.

We begin with constitutional history. At the time of the founding, the Framers confronted a question analogous to the one at issue here: On what basis should congressional districts be allocated to States? The Framers’ solution, now known as the Great Compromise, was to provide each State the same number of seats in the Senate, and to allocate House seats based on States’ total populations. “Representatives and direct Taxes,” they wrote, “shall be apportioned among the several States which may be included within this Union, according to their respective Numbers.” U.S. Const., Art. I, §2, cl. 3 (emphasis added). “It is a fundamental principle of the proposed constitution,” James Madison explained in the Federalist Papers, “that as the aggregate number of representatives allotted to the several states, is to be . . . founded on the aggregate number of inhabitants; so, the right of choosing this allotted number in each state, is to be exercised by such part of the inhabitants, as the state itself may designate.” The Federalist No. 54.In other words, the basis of representation in the House was to include all inhabitants—although slaves were counted as only three-fifths of a person—even though States remained free to deny many of those inhabitants the right to participate in the selection of their representatives. Endorsing apportionment based on total population, Alexander Hamilton declared: “There can be no truer principle than this—that every individual of the community at large has an equal right to the protection of government.”

When debating what is now the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats. Concerned that Southern States would not willingly enfranchise freed slaves, and aware that “a slave’s freedom could swell his state’s population for purposes of representation in the House by one person, rather than only three-fifths,” the Framers of the Fourteenth Amendment considered at length the possibility of allocating House seats to States on the basis of voter population. . . .

Voter-based apportionment proponents encountered fierce resistance from proponents of total-population apportionment. Much of the opposition was grounded in the principle of representational equality. “As an abstract proposition,” argued Representative James G. Blaine, a leading critic of allocating House seats based on voter population, “no one will deny that population is the true basis of representation; for women, children, and other non-voting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot.”

The product of these debates was §2 of the Fourteenth Amendment, which retained total population as the congressional apportionment base. See U.S. Const., Amdt. 14, §2 (“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.”). Introducing the final version of the Amendment on the Senate floor, Senator Jacob Howard explained:


“[The] basis of representation is numbers . . . ; that is, the whole population except untaxed Indians and persons excluded by the State laws for rebellion or other crime. . . . The committee adopted numbers as the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed, that the basis of representation should depend upon numbers; and such, I think, after all, is the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.”


Appellants ask us to find in the Fourteenth Amendment’s Equal Protection Clause a rule inconsistent with this “theory of the Constitution.” But, as the Court recognized in Wesberry[v. Sanders (1964)], this theory underlies not just the method of allocating House seats to States; it applies as well tothe method of apportioning legislative seats within States. “The debates at the [Constitutional] Convention,” the Court explained, “make at least one fact abundantly clear: that when the delegates agreed that the House should represent ‘people,’ they intended that in allocating Congressmen the number assigned to each state should be determined solely by the number of inhabitants.” “While it may not be possible to draw congressional districts with mathematical precision,” the Court acknowledged, “that is no excuse for ignoring our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goalfor the House of Representatives.” It cannot be that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis. . . .

Consistent with constitutional history, this Court’s past decisions reinforce the conclusion that States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations.

. . . In Reynolds[v. Sims (1964)], for instance, the Court described “the fundamental principle of representative government in this country” as “one of equal representation for equal numbers of people.” . . .

Moreover, from Reynolds on, the Court has consistently looked to total-population figures when evaluating whether districting maps violate the Equal Protection Clause bydeviating impermissibly from perfect population equality. Appellants point to no instance in which the Court has determined the permissibility of deviation based on eligible- or registered-voter data. It would hardly make sense for the Court to have mandated voter equality sub silentio and then used a total-population baseline to evaluate compliance with that rule. More likely, we think, the Court has always assumed the permissibility of drawing districts to equalize total population. . . .

What constitutional history and our prior decisions strongly suggest, settled practice confirms. Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries. Appellants have shown no reason for the Court to disturb this longstanding use of total population. As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.

In sum, the rule appellants urge has no mooring in the Equal Protection Clause. The Texas Senate map, we therefore conclude, complies with the requirements of the one-person, one-vote principle.Because history, precedent, and practice suffice to reveal the infirmity of appellants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.


JUSTICE THOMAS, concurring in the judgment.

This case concerns whether Texas violated the Equal Protection Clause—as interpreted by the Court’s one-person, one-vote cases—by creating legislative districts that contain approximately equal total population but vary widely in the number of eligible voters in each district. I agree with the majority that our precedents do not require a State to equalize the total number of voters in each district. States may opt to equalize total population. I therefore concur in the majority’s judgment that appellants’ challenge fails.

I write separately because this Court has never provided a sound basis for the one-person, one-vote principle. For 50 years, the Court has struggled to define what right that principle protects. Many of our precedents suggest that it protects the right of eligible voters to cast votes that receive equal weight. Despite that frequent explanation, our precedents often conclude that the Equal Protection Clause is satisfied when all individuals within a district—voters or not—have an equal share of representation. The majority today concedes that our cases have not produced a clear answer on this point.

In my view, the majority has failed to provide a sound basis for the one-person, one-vote principle because no such basis exists. The Constitution does not prescribe any one basis for apportionment within States. It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government. The majority should recognize the futility of choosing only one of these options. The Constitution leaves the choice to the people alone—not to this Court. . . .

I agree with the majority’s ultimate disposition of this case. As far as the original understanding of the Constitution is concerned, a State has wide latitude in selecting its population base for apportionment. It can use total population, eligible voters, or any other nondiscriminatory voter base. And States with a bicameral legislature can have some mixture of these theories, such as one population base for its lower house and another for its upper chamber.

Our precedents do not compel a contrary conclusion. Appellants are correct that this Court’s precedents have primarily based its one-person, one-vote jurisprudence on the theory that eligible voters have a right against vote dilution.But this Court’s jurisprudence has vacillated too much for me to conclude that the Court’s precedents preclude States from allocating districts based on total population instead. Under these circumstances, the choice is best left for the people of the States to decide for themselves how they should apportion their legislature.

There is no single “correct” method of apportioning state legislatures. And the Constitution did not make this Court “a centralized politburo appointed for life to dictate to the provinces the ‘correct’ theories of democratic representation, [or] the ‘best’ electoral systems for securing truly ‘representative’ government.” Holder v. Hall (1994) (Thomas, J., concurring in judgment).Because the majority continues that misguided search, I concur only in the judgment.


JUSTICE ALITO, with whom JUSTICE THOMAS joins. . . , concurring in the judgment.

The question that the Court must decide in this case is whether Texas violated the “one-person, one-vote” principle established in Reynolds v. Sims (1964), by adopting a legislative redistricting plan that provides for districts that are roughly equal in total population. . . . I agree with the Court that Texas’ use of total population did not violate the one-person, one-vote rule.

Both practical considerations and precedent support the conclusion that the use of total population is consistent with the one-person, one-vote rule. The decennial census required by the Constitution tallies total population. These statistics are more reliable and less subject to manipulation and dispute than statistics concerning eligible voters. Since Reynolds, States have almost uniformly used total population in attempting to create legislative districts that are equal in size. And with one notable exception, Burns v. Richardson (1966), this Court’s post-Reynolds cases have likewise looked to total population. Moreover, much of the time, creating districts that are equal in total population also results in the creation of districts that are at least roughly equal in eligible voters. I therefore agree that States are permitted to use total population in redistricting plans.

Although this conclusion is sufficient to decide the case before us, Texas asks us to go further and to hold that States, while generally free to use total population statistics, are not barred from using eligible voter statistics. Texas points to Burns, in which this Court held that Hawaii did not violate the one-person, one-vote principle by adopting a plan that sought to equalize the number of registered voters in each district.

Disagreeing with Texas, the Solicitor General dismisses Burns as an anomaly and argues that the use of total population is constitutionally required. The Solicitor General contends that the one-person, one-vote rule means that all persons, whether or not they are eligible to vote, are entitled to equal representation in the legislature. Accordingly, he argues, legislative districts must be equal in total population even if that results in districts that are grossly unequal in the number of eligible voters, a situation that is most likely to arise where aliens are disproportionately concentrated in some parts of a State.

This argument, like that advanced by appellants, implicates very difficult theoretical and empirical questions about the nature of representation. For centuries, political theorists have debated the proper role of representatives, and political scientists have studied the conduct of legislators and the interests that they actually advance.We have no need to wade into these waters in this case, and I would not do so. Whether a State is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.

The Court does not purport to decide whether a State may base a districting plan on something other than total population, but the Court, picking up a key component of the Solicitor General’s argument, suggests that the use of total population is supported by the Constitution’s formula for allocating seats in the House of Representatives among the States. Because House seats are allocated based on total population, the Solicitor General argues, the one-person, one-vote principle requires districts that are equal in total population. I write separately primarily because I cannot endorse this meretricious argument.

First, the allocation of congressional representation sheds little light on the question presented by the Solicitor General’s argument because that allocation plainly violates one person, one vote. This is obviously true with respect to the Senate: Although all States have equal representation in the Senate, the most populous State (California) has 66 times as many people as the least populous (Wyoming). And even the allocation of House seats does not comport with one person, one vote. Every State is entitled to at least one seat in the House, even if the State’s population is lower than the average population of House districts nationwide. Today, North Dakota, Vermont, and Wyoming all fall into that category. . . .

Second, Reynolds v. Sims squarely rejected the argument that the Constitution’s allocation of congressional representation establishes the test for the constitutionality of a state legislative districting plan. . . . [T]he Court concluded that “the Founding Fathers clearly had no intention of establishing a pattern or model for the apportionment of seats in state legislatures when the system of representation in the Federal Congress was adopted.”

Third, as the Reynolds Court recognized, reliance on the Constitution’s allocation of congressional representation is profoundly ahistorical. When the formula for allocating House seats was first devised in 1787 and reconsidered at the time of the adoption of the Fourteenth Amendment in 1868, the overwhelming concern was far removed from any abstract theory about the nature of representation. Instead, the dominant consideration was the distribution of political power among the States. . . .

After the Civil War, when the Fourteenth Amendment was being drafted, the question of the apportionment formula arose again. . . . As was the case in 1787 . . . it was power politics, not democratic theory, that carried the day.

In light of the history of Article I, §2, of the original Constitution and §2 of the Fourteenth Amendment, it is clear that the apportionment of seats in the House of Representatives was based in substantial part on the distribution of political power among the States and not merely on some theory regarding the proper nature of representation. It is impossible to draw any clear constitutional command from this complex history.

For these reasons, I would hold only that Texas permissibly used total population in drawing the challenged legislative districts. I therefore concur in the judgment of the Court.