In Evenwel v Abbott, the recent Texas legislative apportionment case, the plaintiffs argued that the Fourteenth Amendment to the U.S. Constitution requires that the boundaries of legislative districts be drawn so as to equalize numbers of CVAPs (“Citizens of Voting Age Population”), not total population.

A unanimous Supreme Court rejected the argument and upheld Texas’ use of total population. The Court refused to go further, and left open the question whether Texas could, consistent with the Constitution, use CVAP if it so chose.

Two concurrences (Thomas and Alito) emphasized that the choice of population base -- total numbers or CVAP -- is up to the state, but the majority refused to commit either way on this point, despite the fact that the general understanding has been that the state can choose.

The MSM and Progressive politicos promptly went on a triumphal parade: “Supreme Court Deals A Blow to Conservatives” (Huffington Post); “Court Rejects Challenge on ‘One Person, One Vote’” (NY Times); “Today, the Supreme Court rejected a radical effort to diminish the voices of the American people in our democracy” (Nancy Pelosi); “Big Victory for Voting Rights” (Election Law Blog); “there are limits to what conservative opponents of minority representation can get away with” (New York).

You can believe this spin if you want, but it is not really accurate. In fact, Evenwel was an advance for the cause of constitutional conservatism, and for the future of the Republic.

In a series of cases starting in 1962, the Supreme Court has laid down as constitutional mandate the principle of “one person, one vote”, which means that state legislative districts must be equally apportioned. There can be no more rotten boroughs, with legislative districts remaining frozen despite massive shifts on population.

A similar rule applies to U.S. congressional districts, which are also drawn by state legislatures. (For arcane legal reasons, the standards applicable to congressional districts are not quite the same as those for states, but to date the practical consequences of this have been minor.)

However, the metric for judging equality has never been entirely clear. Some cases refer to equality of populations, some to equality of voters. As the Court noted in Evenwel, every quotation mined out of the law books referring to equal numbers of voters can be balanced by one referring to equal populations.

The last time the Court addressed the matter directly was in 1966, when it said that the states have considerable choice in the matter, as long as racial discrimination is not involved. “[No] decision [of] this Court suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime, in the apportionment base” -- Burns (but use of registered voters as the base would be suspect because it is subject to political manipulation). 

Since Burns, lower courts have split, with the Fourth and Fifth Circuits ruling that the selection of the appropriate population base is up to the state, and the Ninth saying that it must be done by total population. The district court decision in Evenwel said: “[This is] a choice that the Supreme Court has unambiguously left to the states...”

The uncertainty about the appropriate population base could remain unresolved for half a century because it did not matter much. The differences in result from using total population as compared with the alternative of CVAP was not large enough to justify serious wrangling.

In consequence, according to the brief filed by the U.S. Solicitor General, all states currently treat total population as the proper metric – equality means equal numbers of human bodies in each legislative district.

Over the past couple of decades, two factors have made the question worth wrangling over.

The first, and most obvious, factor is immigration, especially illegal immigration. Aliens tend to concentrate, so counting them in the population base for purposes of legislative apportionment has the effect of diluting the votes of people in other districts.

The growing imbalances were described in an amicus brief in Evenwel by the city of Yakima, WA. The city has 91,000 people. Latinos constitute 41% of the total population but only 22.74% of the CVAP. In addition, only 54.51% of adult Latinos are eligible to vote, whereas 99.63% of non-Latino Whites and 97.65% of African American adults are eligible.

Consequences for California were described 25 years ago, in Garza, in which equalizing populations meant that “District 1 has 707,651 eligible voters while District 3 has 1,098,663.”

Clearly, the choice between total population and CVAP is important, and becoming more so.

The immigration issue interacts with factor number two, which is enforcement of the Voting Rights Act (VRA). Enforcement is the hands of Social Justice Warriors, plucked from various lefty non-profits, so both the choice of targets and the remedies are selected with a heavy racialist thumb on the scale. In the Yakima situation, the remedies for alleged violations of the voting right of Latinos require the city to create serious imbalances in CVAP numbers, and these are treated as irrelevant because, to DOJ, only total population counts, whatever the Supreme Court may have said in the past.

In recent years, the Supreme Court has twice punted on the question of total population vs CVAP. In 2001, it turned down Chen despite Justice Thomas’ dissenting comment that “as long as we sustain the one-person, one-vote principle, we have an obligation to explain to States and localities what it actually means”. In 2012, the Court declined to hear another case raising the issue (Lepak), without a peep from any justice, and there the matter rested until Evenwel.

Speculating on the Court’s motivations is always chancy, but the justices may well have regarded it as a dormant issue. While the precedents contained many statements that a state could use CVAP, no state is actually doing so. The Court may have decided not to bother with the question unless some state actually picked up on it, or it became unavoidable in the context of the VRA,

Such passiveness is readily understandable as a legal matter, but it had important political consequences.

Although a state’s right to choose CVAP was protected (probably) as a matter of formal legal doctrine, it seems safe to say that in the public mind the debate had ceased. “One person, one vote” was assumed to mean that populations must be equal, and not “one CVAP, one vote.”

To use a formulation currently in vogue, the “Overton Window”, the range of options considered acceptable for public discussion, was closing, even as the interaction of immigration and the VRA was adding urgency to the question, and even as, as in the Yakima situation, lower courts were not giving serious consideration to the claims of CVAP.

The Evenfel litigation was a response to this legal/political situation.

The case was sponsored by the Project on Fair Representation, which is involved in a number of apportionment and VRA cases. The Project was also involved in Lepak, which failed to make it to the Supreme Court, and Evenwel was filed by the same lawyers. Only this time they used a provision of the U.S. Code that a constitutional challenge to an apportionment scheme goes to a three judge court, and, from there, it is appealed to the Supreme Court, which must hear it unless the issue raised can be classified as “insubstantial”. Plaintiffs lost in district court, and the case went up.

Three positions were presented in the Supreme Court.

Plaintiffs argued that the Fourteenth Amendment requires a state to use CVAP. This position had zero chance of winning, because the Progressive justices were certain to oppose it, and even the conservatives were most unlikely to go beyond the position that a state had a choice.

The second position was presented by Texas: that its choice of population was constitutional, but so would be a choice of CVAP. This is the language of Burns, and is the view of courts of appeal, except the Ninth Circuit. However, it is not the standard that is being applied in VRA cases.

Almost certainly, the plaintiffs knew they had no shot at their maximum position, and the real goal was to get a Supreme Court re-affirmation of the Burns endorsement of the states’ right to choose so as to restore it as a live option in political discussion. This was a realistic hope before the death of Justice Scalia, but after that the chance of five votes was small, though not impossible.

The U.S. Solicitor General endorsed Texas’ argument that the use of population is constitutional, and urged the Court to rest its decision on this ground.

But he also presented a third option -- that states are required to use population and must ignore CVAP. However, this was not pushed because its resolution was not necessary to the case. The SG also argued that the VRA can over-ride a state choice to use CVAP, another issue that did not have to be decided.

The argument that population is the constitutionally-demanded metric is a clear foreshadowing of what is about to become Progressive dogma. The theory is that all inhabitants (and the Fourteenth Amendment protects all persons, not just citizen) are entitled to representation, so the “one person, one vote” standard demands protection even of non-voting populations. (This is the Ninth Circuit view.) This argument quickly morphs into a demand that illegal aliens have “one person, one vote” rights, but the dedicated Progressive is unlikely to be phased by this.

So what did the case gain, or lose, for the cause of constitutional government?

On the negative side, the four Progressives could well be ready and eager to say that CVAP has no place in apportionment decisions and the states must use total population. One must put a question mark on this, though, because it is easy to create reductio ad absurdum hypotheticals in which a few voters and many aliens get to dominate local elections, and even the Progressives might quail at this.

On the positive side, the Overton Window has been widened by the publicity given the case and by the clear SCOTUS statement that a state is not at present forbidden to use CVAP. It has also been widened by the two fine concurrences in Evenwel, by Alito and Thomas, addressing the constitutional issues and policy choices involved. (One should add to the reading list Judge Kozinski’s dissent in Garza and Judge Garwood’s opinion in Chen.)

Given the current prominence of immigration concerns, the widened window means that state legislators might well be persuaded to take a second look at current laws that require the use of total population, and the concurrences provide a solid foundation for political discussion.

Also on the positive side, it will be difficult for the Department of Justice and the courts to ignore CVAP in fashioning VRA remedies. If the states have the right to choose a population base, and if that right is protected as an attribute of state sovereignty, then DOJ cannot automatically reject the use of CVAP. And if it does so, then its VRA cases will be delayed for years while the matter is appealed once again.

The issues are complex, not only legally but morally and practically, and serious arguments can be made for either standard. As the concurrences note, they involve fundamental questions about the nature of democracy, the meaning of representation, the relationship of state and federal governments, and the interpretation of the Fourteenth and Tenth Amendments.

It may well be that the best solutions involve a blend of total population and CVAP, and the great benefit of Evenwel is that it leaves it open for states to experiment to fund the right mix.

But the big thing is that the Overton Window is open again, so on balance it was a good day for democracy.

James V DeLong lives in Quicksburg, VA. He is the author of Ending ‘Big SIS’ (The Special Interest State) & Renewing the American Republic.