Mantras Without Meanings (We Takings Lawyers Predicted This One) - 8-0 SCOTUS Rules States May Count Everyone In Reapportionment

Who must may be counted for reapportionment purposes?

Everyone!

by Robert Thomas, InverseCondemnation, April 4, 2016

A slight detour from our usual fare, to post some thoughts about today's big  U.S. Supreme Court opinion on election law in Evenwel v. Abbott, No. 14-940. Evenwel is the sleeper case of the Term, and opened the possibility that the we might finally get an answer to a question the Supreme Court has dodged for over fifty years, involving the seemingly mundane issue of who can states count when they reapportion their legislatures: All Census-counted residents? U.S. citizens? Those eligible to vote? And who must they count?

In today's ruling the Court didn't cast the net wide, but instead (as we urged it to do in our amicus brief) drew a narrow rule: states may count everyone, but they are not required to. Thus, Texas's plan, and the plans of those states which count total population (an overwhelming majority of states do just that) survive. The states which exclude a portion of their total population (Hawaii being the most prominent), still have a bit of work. Elections law lawyers rejoice.

But like many things, there is a kernel of takings law in the decision. We takings lawyers know that just because the Supreme Court says something in an opinion, and repeats it incessantly for decades, doesn't necessarily mean the statement is an accurate recounting of "the law," when the Court finally gets around to applying the statement.

We know, for example, that from 1980 to 2005, we all operated under the assumption that the Court meant what it said in Agins v. City of Tiburon, 477 U.S. 255 (1980), when it held that a regulation may work a taking when it either (1) deprives the owner of all economically beneficial use, or (2) fails to substantially advance a legitimate state interest. And for years, taking the Court at its word, we all tried to apply the "substantially advance" in takings cases, repeating the Agins two-part test as a mantra, much like "one-person, one-vote." Until 2005, when the Court in Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) issued a huge mea culpa, and held that the language in Agins about substantially advance was just inartful writing, and that wasn't a takings test at all. We know that we should be wary of relying too much on the Court's mantras because what the Justices sayeth, they can later disclaimeth.

Evenwel cast a similar vibe, because it involved Equal Protection's "one-person, one-vote" standard, first enunciated in Reynolds v. Sims, 377 U.S. 533 (1964). The rule requires state legislatures to be apportioned based on "population." Prior to Reynolds, the houses of many state legislatures were set up like the U.S. Senate, where each county or other political subdivision was entitled to representation. But after Reynolds, population was the required metric. That decision rewrote American politics by shifting the locus of power to urban population centers.

In the intervening decades, "one-person, one-vote," like "substantially advance a legitimate state interest," became a kind of a mantra, but one without any concrete meaning, at least in cases involving reapportionment and not actual voting rights challenges. Election law lawyers on both sides of arguments routinely invoke the mantra, even though it has defied judicial explication.

The plaintiffs in Evenwel based their argument on this mantra, and asked the Court to uphold the plain meaning of the "vote" part: they argued the "population" states are required to count is limited to the citizen voting-age population. Total Census-counted population, after all, includes undocumented aliens, felons, minors, and others who cannot vote. How can "one-person, one-vote" include them, the plaintiffs asked? The principle, they concluded, is about voting, not anything else. 

Today, the Court (as we argued in the amicus brief we filed in Evenwel in support of Texas) soundly rejected the notion that the "one-person, one-vote" standard requires states to count citizen voting-age population. As we predicted, this wasn't a close call, and the Court held that "the rule appellants urge has no mooring in the Equal Protection Clause." Slip op. at 19. The Court really didn't address, however, whether the appellants' rule had a mooring in the "one-person, one-vote" mantra (which it clearly did), other than to say:

For every sentence appellants quote from the Court’s opinions, one could respond with a line casting the one-person, one-vote guarantee in terms of equality of representation, not voter equality.

Slip op. at 16. Agins and Lingle, revisited. We believe that Justice Thomas was correct when he noted, "[t]here is no single 'correct' method of apportioning state legislatures." States may count total population, or they may count some other lesser population, provided they are counting "nondiscriminatory population bases." What that latter phrase means is left for future resolution.

In other words, "one-person, one-vote" is a mantra without meaning, at least in reapportionment cases.

We'll have more on this decision for those of you who are interested after we have had a chance to digest it in detail. Meanwhile, the spin machine has predictably spun up, with many of the parties who filed amicus briefs -- many of which presented "Chicken Little" arguments that the whole system would collapse if the Court accepted the plaintiffs' arguments (arguments that we takings lawyers are also very familiar with, and which were soundly rejected by the Court in Brandt and Koontz) -- applauding the Court for doing what it plainly didn't do: holding that the Equal Protection Clause requires the states to count everyone.

That's what we love about election law: it's all politics in the end. 

PDF: Evenwel v. Abbott, No. 14-940 (U.S. Apr. 4, 2016)d9g 

LI: SCOTUS: In drawing voting Districts, states can count non-voters