New year, time to add a new word to the dysfunction lexicon: disrepresented.
For the last decade, it's been all about disenfranchisement via voter ID and other vote suppression tools. But after last year's Supreme Court revisit of the "one-person, one-vote" principle, disrepresentation is trending.
In the lead up to the Supreme Court arguments in Evenwel v. Abbott most commentators agreed that the redistricting case was among the most momentous in a generation. The case raises "as fundamental an issue for a democracy as can be imagined," according to SCOTUSblog.
While most informed commentators were alarmed by the case, they were relatively confident that the Court would reject Evenwel's radical rethink of the method used to apportion legislative seats.
But I don't need a crystal ball to predict the outcome in Evenwel. Win or lose, the thinking behind Evenwel is going to gain steam. All Supreme Court outcomes point at a new front in the voting wars.
Let's back up a moment. Sue Evenwel and her co-appellant Edward Pfenninger are registered voters in Texas. After Texas drew its Senate district boundaries in the wake of the 2010 Census, they found themselves in districts that were roughly equal to others on a population basis but, they assert, grossly unequal based on the number of eligible voters.
The denominator used to gauge equal district population is at issue. Texas has 31 Senate districts. In determining the baseline number of people represented in each district, the question is: should 31 be divided into the total population or into the voting eligible population in the district? Texas used total population.
Evenwel, who votes in the Northeastern edge of Texas, asserted that, for example, a Brownsville Senate district voter has an equal vote to hers with population as the denominator but has 1.56 times her voting power if eligible voter population were the denominator.
Arguing that the Texas plan violated the "one-person, one-vote" principle of Reynolds v. Sims and other cases, Evenwel sued. (For more on the issues in Evenwel, see these Brennan Center stories here and here.)
Why does this matter? Sure, redrawing district maps is hard. But surely it's worth doing for equal rights. All that's involved is a little math, no?
Well, it's much more than a question of math. It's a question of who is entitled to representation (which may be separate from who gets to vote). It's a question whether dense pockets of children, non-citizen immigrants, or even people with felony convictions get counted as a state allocates power and resources by determining representation.
As the Brennan Center pointed out in its amicus brief: "The rare uses of voter apportionment bases almost always reflected efforts to disadvantage unpopular or disfavored groups."
To understand the impact, it may be worth going back to the time before Reynolds, when because of malapportionment observers caustically spoke about the "House of Un-Representatives."
The impact of malapportionment was acutely demonstrated in the major case leading up toReynolds, 1962's Baker v. Carr, which successfully challenged Tennessee's failure to redraw district lines since 1901. The absence of reapportionment resulted in significant underrepresentation of the urban population, underfunded school systems, and misallocated spending for roads, bridges, and other infrastructure.
Or consider the failure of Congress to reapportion in 1920 as rural/pro-Prohibition forces sought to lock-in power over growing urban/anti-Prohibition forces. When Congress finally did reapportion in the wake of the 1930 census, Prohibition was swiftly repealed.
More contemporary examples jump to mind. In oral arguments, Deputy Solicitor General Ian Gershengorn pointed out that Manhattan's population is nine percent children versus Brooklyn at 30 percent. Failing to account for that bolus of kiddie non-voters in Brooklyn in apportioning political power, as the Evenwel plaintiffs would have, risks skewing important priorities.
Knowing all this, you can understand why everyone is stressed about the outcome in Evenwel. If the Court mandates voter eligible population as the denominator (unlikely), our ideas of representative democracy would be altered. If it mandates some consideration of voter eligibility in addition to population, the same is likely to happen.
But here's the rub. Whatever the Court does, the light bulb has gone off in the heads of politicians seeking to use Excel spreadsheets to maintain or shift power. The only Court ruling that will help is one that mandates the use of population as a whole and bars any other manipulation of the denominator.
That question is not before the Court. Not only is it not before the Court, but it has in fact previously blessed non-population denominators. Starting with Burns v. Richardson in 1966 and leading up to 2014's ruling in Kostick v. Nago, the Supreme Court has countenanced Hawaii's apportionment scheme which drops out military members, their families and college students.
Let's pull out that crystal ball in honor of the New Year: I predict that all outcomes in Evenwel set the scene for a very aggressive redistricting effort after the 2020 census. The legal minds behind Evenwel are just getting started. They are well-funded, have a long-term game plan, and don't need to win this case to set their scheme in motion. Disrepresentation is on the move.