Evenwel v. Abbott, No. 14–940.

CourtU.S. Supreme Court
Writing for the CourtJustice GINSBURG delivered the opinion of the Court.
Parties Sue EVENWEL et al., Appellants v. Greg ABBOTT, Governor of Texas, et al.
Decision Date04 April 2016
Docket NumberNo. 14–940.

577 U.S. 937
136 S.Ct.
194 L.Ed.2d 291

Sue EVENWEL et al., Appellants
Greg ABBOTT, Governor of Texas, et al.

No. 14–940.

Supreme Court of the United States

Argued Dec. 8, 2015.
Decided April 4, 2016.

William S. Consovoy, Arlingotn, VA, for Appellants.

Scott A. Keller, Solicitor General, for Appellees.

Ian H. Gershengorn for the United States, as amicus curiae, by special leave of the Court, supporting the Appellees.

Ken Paxton, Attorney General of Texas, Charles E. Roy, First Assistant, Attorney General, Office of the Attorney General, P.O., Austin, TX, Scott A. Keller, Solicitor General, Matthew H. Frederick, Deputy Solicitor General, Lisa Bennett, Assistant Solicitor General, for Appellees.

Meredith B. Parenti, Parenti Law PLLC, Houston, TX, William S. Consovoy, Thomas R. McCarthy, J. Michael Connolly, Consovoy McCarthy Park PLLC, Arlington, VA, for Appellants.

136 S.Ct. 1123

Justice GINSBURG delivered the opinion of the Court.

Texas, like all other States, draws its legislative districts on the basis of total population. Plaintiffs-appellants are Texas voters; they challenge this uniform method of districting on the ground that it produces unequal districts when measured by voter-eligible population. Voter-eligible population, not total population, they urge, must be used to ensure that their votes will not be devalued in relation to citizens' votes in other districts. We hold, based on constitutional history, this Court's decisions, and longstanding practice, that a State may draw its legislative districts based on total population.



This Court long resisted any role in overseeing the process by which States draw legislative districts. "The remedy for unfairness in districting," the Court once held, "is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress." Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946). "Courts ought not to enter this political thicket," as Justice Frankfurter put it. Ibid.

Judicial abstention left pervasive malapportionment unchecked. In the opening half of the 20th century, there was a massive population shift away from rural areas and toward suburban and urban communities. Nevertheless, many States ran elections into the early 1960's based on maps drawn to equalize each district's population as it was composed around 1900. Other States used maps allocating a certain number of legislators to each county regardless of its population. These schemes left many rural districts significantly underpopulated in comparison with urban and suburban districts. But rural legislators who benefited from malapportionment had scant incentive to adopt new maps that might put them out of office.

The Court confronted this ingrained structural inequality in Baker v. Carr, 369 U.S. 186, 191–192, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). That case presented an equal protection challenge to a Tennessee state-legislative map that had not been redrawn since 1901. See also id., at 192, 82 S.Ct. 691 (observing that, in the meantime, there had been "substantial growth and redistribution" of the State's population). Rather than steering clear of the political thicket yet again, the Court held for the first time that malapportionment claims are justiciable. Id., at 237, 82 S.Ct. 691 ("We conclude that the complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision.").

Although the Court in Baker did not reach the merits of the equal protection claim, Baker 's justiciability ruling set the stage for what came to be known as the one-person, one-vote principle. Just two years after Baker, in Wesberry v. Sanders, 376 U.S. 1, 7–8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the Court invalidated Georgia's malapportioned congressional map, under which the population of one congressional district was "two to three times" larger than the population of the others. Relying on Article I, § 2, of the Constitution, the Court required that congressional districts be drawn with equal populations. Id., at 7, 18, 84 S.Ct. 526. Later that same Term, in Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Court upheld an equal protection challenge to Alabama's malapportioned state-legislative maps. "[T]he Equal Protection Clause," the Court concluded, "requires that the seats

136 S.Ct. 1124

in both houses of a bicameral state legislature must be apportioned on a population basis." Ibid . Wesberry and Reynolds together instructed that jurisdictions must design both congressional and state-legislative districts with equal populations, and must regularly reapportion districts to prevent malapportionment.1

Over the ensuing decades, the Court has several times elaborated on the scope of the one-person, one-vote rule. States must draw congressional districts with populations as close to perfect equality as possible. See Kirkpatrick v. Preisler, 394 U.S. 526, 530–531, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). But, when drawing state and local legislative districts, jurisdictions are permitted to deviate somewhat from perfect population equality to accommodate traditional districting objectives, among them, preserving the integrity of political subdivisions, maintaining communities of interest, and creating geographic compactness. See Brown v. Thomson, 462 U.S. 835, 842–843, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983). Where the maximum population deviation between the largest and smallest district is less than 10%, the Court has held, a state or local legislative map presumptively complies with the one-person, one-vote rule. Ibid.2 Maximum deviations above 10% are presumptively impermissible. Ibid. See also Mahan v. Howell, 410 U.S. 315, 329, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973) (approving a state-legislative map with maximum population deviation of 16% to accommodate the State's interest in "maintaining the integrity of political subdivision lines," but cautioning that this deviation "may well approach tolerable limits").

In contrast to repeated disputes over the permissibility of deviating from perfect population equality, little controversy has centered on the population base jurisdictions must equalize. On rare occasions, jurisdictions have relied on the registered-voter or voter-eligible populations of districts. See Burns v. Richardson, 384 U.S. 73, 93–94, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) (holding Hawaii could use a registered-voter population base because of "Hawaii's special population problems"—in particular, its substantial temporary military population). But, in the overwhelming majority of cases, jurisdictions have equalized total population, as measured by the decennial census. Today, all States use total-population numbers from the census when designing congressional and state-legislative districts, and only seven States adjust those census numbers in any meaningful way.3

136 S.Ct. 1125


Appellants challenge that consensus. After the 2010 census, Texas redrew its State Senate districts using a total-population baseline. At the time, Texas was subject to the preclearance requirements of § 5 of the Voting Rights Act of 1965. 52 U.S.C. § 10304 (requiring jurisdictions to receive approval from the U.S. Department of Justice or the U.S. District Court for the District of Columbia before implementing certain voting changes). Once it became clear that the new Senate map, S148, would not receive preclearance in advance of the 2012 elections, the U.S. District Court for the Western District of Texas drew an interim Senate map, S164, which also equalized the total population of each district. See Davis v. Perry, No. SA–11–CV–788, 2011 WL 6207134 (Nov. 23, 2011).4 On direct appeal, this Court observed that the District Court had failed to "take guidance from the State's recently enacted plan in drafting an interim plan," and therefore vacated the District Court's map. Perry v. Perez, 565 U.S. ––––, ––––, –––– – ––––, 132 S.Ct. 934, 940–942, 943–944, 181 L.Ed.2d 900 (2012) (per curiam ).

The District Court, on remand, again used census data to draw districts so that each included roughly the same size total population. Texas used this new interim map, S172, in the 2012 elections, and, in 2013, the Texas Legislature adopted S172 as the permanent Senate map. See App. to Brief for Texas Senate Hispanic Caucus et al. as Amici Curiae 5 (reproducing the current Senate map). The permanent map's maximum total-population deviation is 8.04%, safely within the presumptively permissible 10% range. But measured by a voter-population baseline—eligible voters or registered voters—the map's maximum population deviation exceeds 40%.

Appellants Sue Evenwel and Edward Pfenninger live in Texas Senate districts (one and four, respectively) with particularly large eligible- and registered-voter populations. Contending that basing apportionment 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,5 appellants filed suit in the U.S. District Court for the Western District of Texas. They named as defendants the Governor and Secretary of State of Texas, and sought a permanent...

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    ...no less. In our constitutional order, "[s]tates are free to serve as laboratories of democracy." Evenwel v. Abbott , ––– U.S. ––––, 136 S. Ct. 1120, 1141, 194 L.Ed.2d 291 (2016) (Thomas, J. concurring) (cleaned up). And in this arena, "[c]ommon sense, as well as constitutional law, compels ......

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