This story in the Los Angeles Times suggests that the future U.S. Supreme Court decision Evenwel v Abbott, 14-940, might cause California and Texas to lose seats in the U.S. House. One must read the entire article to realize it isn’t true. At the very end, election law professor Rick Hasen points out that the Constitution says, “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.”
Evenwel v Abbott has nothing to do with how many Representatives each state gets. It relates to how states should draw their legislative and U.S. House districts. The question it will answer is whether states should draw districts that are equal in population, or equal in the number of eligible voters.
It doesn’t necessarily relate to the drawing of US House districts. The SCOTUS in their infinite wisdom, decided ‘Wesberry v Sanders’ (congressional redistricting) and ‘Reynolds v Sims’ (legislative redistricting). That is also why they have different standards of equality between.
But in either case, there is a conflict with the fundamental principle, that the value of a vote should not depend on where a person lives.
Why should voters in Los Angeles have more influence over the composition of the General Assembly than they do over the governor? In the gubernatorial election, one vote is one vote.
The original 14th Amendment would have apportioned representatives based on the number of qualified voters. The northern hegemons were concerned that the elimination of slavery by the 13th Amendment would give the Southern states more representation than they had prior to the Civil War.
They reasoned that Southern states would deny Negroes the right to vote directly, or by literacy tests or poll taxes. But that would just mean more representation for the Northern States.
But then they realized that the New England states had a disproportionately large number of women and children. Sons who did not expect to inherit the family farm, headed west, where it would be some time before they found a wife and had children. Adoption of the pro rata formula in the current form ensured they would get credit for women and children, so long as most men could vote.
Had the original form of the 14th Amendment been adopted, we would have considered it a given to base apportionment on citizen voters (the 19th and 26th Amendments would have modified the apportionment), and congressional districts would be drawn accordingly.
Jim Riley’s second comment is useful because it suggests one reason SCOTUS might decide this case in favor of persons rather than eligible voters. Had the framers of the Fourteenth Amendment meant voters, they would have said voters. According to Jim’s reading of the history, they knew what they were doing.
The plaintiffs in ‘Wesberry v Sanders’ had offered three theories: (1) Article 1, that Representatives be chosen “by the People of the several States”; (2) equal protection under the 14th Amendment; and (3) “Representatives shall be apportioned among the several States according to their respective numbers. . . .”
‘Wesberry v Sanders’ was decided on the first; and the SCOTUS did not reach a decision on the second (equal protection); and mumbled a lot about the third.
A particular problem with the third claim is the apportionment scheme prior to the 14th Amendment, which provided for apportionment for slaves based on 3/5 of a free person. You then get into a conflict between whether districts of that time should have considered the apportionment population (eg a plantation with 100 slaves and 7 free persons, would count as 67 persons, even though only one, the plantation owner could vote (his wife couldn’t vote, nor their children, not the overseer who didn’t own any property), or on voters, which might include family farmers who owned land.
Justice Harlan in his dissent in ‘Wesberry’ did note that the majority opinion had swept the issue of population vs voters as the districting base had been swept under the rug.
However, this particular case is about the senate districts only. There are a number of reasons for that:
(a) The congressional and House redistricting are still in litigation, and likely will be for the next several years. The senate litigation was completed in 2013, and the new suit was filed afterwards. Otherwise, it might have been swept up into the San Antonio morass of litigation, or offhandedly dismissed.
(2) The Texas Constitution does not specify the basis of apportionment of senate districts. It only requires that they be contiguous. In 2006, there was a constitutional amendment to clean up the constitution by removing archaic and obsolete language. Prior to that, the constitution forbid splitting of counties, which had been found unconstitutional in the 1960s, and had been ignored for 40 years. The constitution also required senate districts to be apportioned on the basis of qualified voters. That phrase was removed at the same time.
In previous redistricting, that had always been ignored, since Texas had no ready means of measuring “qualified voters”, and the US Census deliberately avoids a citizenship question – which would seem to be a necessity for apportionment purposes. But just because it was ignored does not mean that it was archaic or obsolete. They were slightly overactive with their whiteout.
The SCOTUS will determine the Texas case solely on Equal Protection grounds.
Texas appears to comply with the rules that the SCOTUS has developed; however it may not be in compliance with the constitutional principles that those rules supposedly are intended to protect.