Equal Protection

McCrory v. Harris is a typical redistricting case in at least two respects. First, it raises so many legal issues that it is impossible to know what the Supreme Court will focus on. Second, beyond all the technical legal arguments, plaintiffs’ fundamental objection to the redistricting plan is familiar:  they claim the legislature packed minority voters into safe minority districts under the guise of complying with the Voting Right Act (VRA) to reduce minority voters’ influence in other districts. North Carolina claims it is caught in a “Catch-22.”

In Fisher v. University of Texas at Austin the Supreme Court ruled 4-3 that the University of Texas at Austin’s race-conscious admissions program is constitutional, as least of 2008, when this case was first brought. Justice Kagan did not participate in this case.

Even though this case arises in the higher education context, the Supreme Court has decided relatively few affirmative action cases so all are of interest to state and local governments that use race as a factor in decision-making.  

In what has been described as the most important “one-person, one-vote” case since the Supreme Court adopted the principle over 50 years ago, the Court held that states may apportion state legislative districts based on total population. Local governments may do the same.  

The Court’s opinion in Evenwel v. Abbott is unanimous. All 50 states currently use total population to design state legislative districts; only seven adjust the census numbers “in any meaningful way.”   

In Reynold v. Sims (1964) the Court established the principle of “one-person, one-vote” requiring state legislative districts to be apportioned equally so that votes would have equal weight. The question in this case is what population is relevant—total population or voter-eligible population. Total population includes numerous people who cannot vote—notably non-citizens and children.

Following the 2010 census Texas redrew its State Senate districts using total-population. The maximum total-population deviation between districts was about 8 percent (up to 10 percent is presumed constitutional); the maximum eligible-voters deviation between districts exceeded 40 percent.

Justice Ginsburg’s majority opinion concluding Texas may redistrict using total population is “based on constitutional history, this Court’s decisions, and longstanding practice.”

In today’s Supreme Court oral argument in Fisher v. University of Texas at Austin, involving race-conscious college admissions, the Court indicated it might send the case back to the lower court for a second time, meaning that the Supreme Court could ultimately hear it for a third time.

Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, which fills about 80 percent of the class. Unless an applicant has an “exceptionally high Academic Index” he or she will be evaluated through a holistic review where race is one of a number of factors.

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?

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