one-vote

In Harris v. Arizona Independent Redistricting Commission the Supreme Court confirms that state and local governments don’t have to apportion legislative districts perfectly, but they do need a good reason for failing to doing so. But we knew that before.  

The Court held unanimously that Arizona’s redistricting plan, which had a total population deviation among districts of 8.8 percent, wasn’t unconstitutional. Those attacking the plan failed to show it is more probable than not that the deviation reflects illegitimate reapportionment considerations.

So the million dollar question (other than who will fill Justice Scalia’s seat) is what will happen to undecided Supreme Court cases heard or to be heard this term.

The short answer is it depends and in all instances isn’t entirely clear.

If a case isn’t 4-4 it will be decided as usual with only eight Justices.

If a case is going to be decided 4-4 the Court has two choices:  wait for the ninth Justice to join the Court and rehear the case or issue a non-precedential 4-4 decision that affirms the lower court decision.

Texas, like all other states, redistricts based on total population data from the census. A number of Texas voters argue that state legislative districts deviate from the ideal by as much as 45 percent when voting population is used. At oral argument today in Evenwel v. Abbott Justices Kennedy, frequently the Court’s “swing” vote in high-profile cases, asked whether both metrics can be used to comply with one-person, one-vote.

Since the Supreme Court in Reynolds v. Sims (1964) held that state legislative districts have to be roughly equal in population, a question has remained: what population are we talking about?

The irony of the Supreme Court agreeing to decide Harris v. Arizona Independent Redistricting Commission is inescapable. On June 29 in Arizona State Legislature v. Arizona Independent Redistricting Commission the Court held that Arizona’s redistricting commission could be solely responsible for congressional redistricting. In the first sentence of its opinion the Court noted Arizona voters adopted the commission to avoid partisan gerrymandering. The next day the Court agreed to decide Harris where the plaintiffs allege that Arizona’s redistricting commission engaged in partisan gerrymandering in state legislative redistricting that violated one-person, one-vote.  

It is noteworthy that the Harris plaintiffs don’t object to partisan gerrymander per se (which the Supreme Court has never held unconstitutional), just partisan gerrymandering that leads to unequal distribution of voters.

The U.S. Constitution Equal Protection Clause’s “one-person one-vote” principle requires that voting districts have roughly the same population so that votes in each district count equally. But what population is relevant—total population or total voting population—and who gets to decide? The Supreme Court will decide these issues in Evenwel v. Abbott.