The Never-Ending Struggle
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
The Supreme Court had barely acted this morning on the latest voting rights case when the Democrats started crowing about a victory. The case — called Evenwel v. Abbott — was decided unanimously. It allows the states to continue to draw their election districts according to the count of the general population, rather than according to the voting population. Common Cause rushed out a statement saying the decision “affirms one of our most fundamental values as Americans: that every person counts.”
What strikes us about the case, though, is the narrowness of the Supreme Court’s ruling — and, indeed, the prospect that the court may have opened a vast national struggle in respect of the drawing of election districts. What it ruled is that Texas was within its rights to apportion its election districts according to the total population of each district. What it didn’t do is require that the Lone Star State do so, which struck an uncharacteristic note of humility for the Nine.
The case was brought by two voters, Sue Evenwel and Edward Pfenninger. They live in two Texas Senate districts with, as Justice Ginsburg put it in the Court’s opinion, “particularly large eligible- and registered-voter populations.” They contended that, as the justice put it, “apportionment based on total population dilutes their votes in relation to voters in other Senate districts, in violation of the one-person, one-vote principle of the Equal Protection Clause.”
This position is being described as right wing — and the outcome of the case a defeat for Republicans, because, or so goes the theory, apportionment by total population allows account to be given to, say, illegal aliens, prisoners, and children, all, according to this theory, Democrats. But these pundits miss what to us is a remarkable fact in this case, which is that the victorious defendants are two of the most conservative politicians in America (or the entire Milky Way).
We speak of Governor Abbott and the Texas secretary of state, Carlos Cascos. They took the position that the Equal Protection Clause of the Constitution’s 14th Amendment gives the state sway to use what Justice Ginsburg called “any population baseline — including total population and voter-eligible population — so long as the choice is rational and not invidiously discriminatory.” The Obama administration horned in on Governor Abbott’s side of the question.
Up to a point. The administration urged the Nine* to reject Texas’s contention that it could have used another method of apportionment. The Court, in a defeat for the Obama administration and those who assume that cities and persons in jail tend to vote Democratic, declined to take that bait. So the Court, which may simply have wanted to avoid an argument that would eclipse its summer vacation, decided, in effect, to invite the states to experiment with this in the years ahead.
Given what a long-shot everyone seemed to think Ms. Evenwel’s demarche was in the first place, we’d call this an astonishing development. Congratulations to the constitutional radical Edward Blum, who nursed the case. He is not a lawyer and doesn’t have an office. Under the rubric of the Project on Fair Representation, he researches and writes via a laptop computer. What he understands is the first stated purpose of the American people in ordaining and establishing the Constitution.
That first purpose was to form a “more perfect union.” We have no doubt that the Founders understood the open-ended nature of the problem and the law of unintended consequences. The one-man-one-vote decision in Reynolds v. Sims may have sounded wonderful. But in prohibiting the states from setting up their own senates representing counties in the traditional way — and the way the U.S. Senate represents U.S. states — it sowed its own trouble.
One-man-one-vote may yet be blamed for devastating rural counties and bringing on the winter of our current discontent, when so many voters feel the country is being run for the benefit of everyone else but them. Such voters may yet get a state government to test the method of apportionment the Nine declined to outlaw today. The Court’s decision suggests that the justices understand — and even appreciate — that a more perfect union is a never-ending struggle.
* According to “The Reporters Handbook and Manuel of Style of The New York Sun,” the word Nine refers to the Court itself, not the number of justices — eight, at the moment — currently serving on the High Bench. So in theory a headline in the Sun on this story could have read “Nine in Tie vote, 4-to-4.”