In our last episode of that ideologically imbalanced Supreme Court we love to hate, the perpetually out-of-touch institution was well on its way to dismantling civil rights law as we know it. Conservatives had successfully skinned the Voting Rights Act down to its bare enforcement essentials in Shelby v. Holder less than three years ago.
Another potentially fatal blow to civil rights was being set through Fisher v. the University of Texas (affirmative action) and Evenwel v. Abbott (one person, one vote), two timed detonators set to explode in one big court session.
Many observers, including myself, have been on edge about the outcomes of both cases. The situation was almost mystical: both out of Texas and both launching ferocious, yet legally meticulous, beachfront assaults on core pillars of the civil rights movement: voting rights and affirmative action. It struck some of us as symbolically odd that not only were these cases being argued in the same week and only 48 hours apart, but the Supreme Court was also, yet again, relitigating issues that had been affirmed for over five decades.
“The problem here is that petitioners are reopening precedent that’s been around for over 50 years,” said NAACP litigation fellow Liliana Zaragoza back in December during a conversation with The Root. “We’re opening up these issues … again.”
On Monday the anticipated legal apocalypse didn’t happen … well, not yet. And to the dismay of many, Supreme Court conservatives weren’t orchestrating the dreaded final note, at least not in this round. In a stunning and unanimous 8-0 decision, the justices rejected the argument in Evenwel that state (namely, Texas) governments should construct legislative districts based on the number of eligible voters.
Plaintiffs Sue Evenwel and Edward Pfenninger (pdf), two white Tea Party operatives with fringe white supremacist views, had complained that the Texas state Senate districts full of eligible (mostly white) voters where they lived had less political clout than districts full of noneligible (mostly black and brown) nonvoters, including many undocumented Latino migrants. It was a clever reverse-racism twist on the universal logic of electoral representation: According to Evenwel and Pfenninger, the Constitution didn’t guarantee the “total population” rule that every person counts. It only counted those citizens eligible to vote.
But the court didn’t buy their argument.
“Districting based on total population serves both the State’s interest in preventing vote dilution and its interest in ensuring equality of representation,” rapped Justice Ruth Bader Ginsburg in the ruling opinion (pdf). “[N]onvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies.”
What was different about the Supreme Court this time?
Maybe it was that Justice Antonin Scalia wasn’t around to WrestleMania elbow-slam his colleagues into submission. With the bully of First Street gone, folks could breathe easier and, for once, listen to reason: Even the notoriously taciturn Clarence Thomas is a bit more audible than usual since his buddy Antonin’s death.
So, with Scalia out, the eight remaining justices decided that states should continue relying on the long-celebrated and rather simple “one person, one vote” principle set out in the Constitution.
“With this ruling, jurisdictions will and must continue to redraw district boundaries in an inclusive manner while adhering to the fundamental principle of one person, one vote,” Kristen Clarke, executive director of the Lawyers’ Committee for Civil Rights Under Law, tells The Root. “Today’s decision renders null and void efforts to marginalize minority communities from having an equal seat at the table in our political process.”
Had Evenwel been approved by the high court, new rules would have snatched representation away from quite a few people—including 75 million children (not to mention the estimated 16 million children receiving food stamp benefits). Even the state’s Republicans, including Gov. Greg Abbott, rejected that (at least publicly). The plaintiffs didn’t care; nor did they “account for the millions of disfranchised individuals with felony convictions and many other citizens who may be ineligible to vote for any number of reasons,” as the NAACP Legal Defense and Educational Fund noted in its friend of the court brief (pdf) as part of an unusual alliance with Abbott.
The brief states: “[T]his derogation of representative equality will fall most heavily on black residents, immigrants, and other communities that already face historical and contemporary discrimination. In black communities, for example, there are over 20 million people who are not ‘eligible voters,’ including about 13 million black children, nearly 5 million non-registered black voters, 2 million Black non-citizens, and 2 million Black individuals with felony convictions.”
In other words, we just avoided an asteroid slamming into modern democracy. The impact of Evenwel—on top of the court’s stripping from the Voting Rights Act Section 5’s federal protections against state abuse, along with the stubborn implementation of voter-ID and other voter-suppression laws in 33 states—would have left the black electorate as politically impotent as it was more than 50 years ago, going so far as to throw us back to an ugly period when blacks were once counted as three-fifths of a person for redistricting.
Yeah, so “one person, one vote” gets another day. But isn’t there a fundamental misalignment in voting rights if you preserve that but don’t have Section 5 still? And how can you have one element of voting rights preserved but not the other?
“The decision in Evenwel was all the more welcome precisely because of the current inoperability of Section 5,” American University professor of government David Lublin explains to The Root.
But Evenwel was strictly about the makeup of state legislative and congressional districts, and SCOTUS didn’t say that states can’t use voting eligibility to determine other electoral representation. There’s nothing to really celebrate if states can still trample on voting rights if they want (just as they’re doing now).
Lublin counters that Congress has already mandated the use of total population and that states occasionally use other methods. “Maryland allocates prisoners back to where they live prior to incarceration. Kansas does the same for college students,” Lublin argues. “The decision was a big win because the court explicitly avoided saying whether it would be all right not to use total population. Now states that try [it the Evenwel way] risk seeing their plans thrown out in court.”
Still, too many states seem to get away with too much these days. And with election stakes high this year, no one’s stopping them. The latest ruling from the Supreme Court offers some reprieve, albeit brief.
Charles D. Ellison is a veteran political strategist and a contributing editor at The Root. He is also Washington correspondent for the Philadelphia Tribune, a frequent contributor to The Hill, the weekly Washington insider for WDAS-FM in Philadelphia and host of The Ellison Report, a weekly public-affairs magazine broadcast and podcast on WEAA 88.9 FM Baltimore. Follow him on Twitter.