NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–940
_________________
SUE EVENWEL, et al., APPELLANTS
v.
GREG ABBOTT, governor of texas, et al.
on appeal from the united states district
court for the western district of texas
[April 4, 2016]
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 un-equal
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.
I
A
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 prop-erly, or
to invoke the ample powers of Congress.”
Colegrovev.
Green, 328 U. S. 549, 556 (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
inequal-ity in
Baker v.
Carr, 369 U. S. 186 –192
(1962). Thatcase presented an equal protection challenge to a
Tennessee state-legislative map that had not been redrawn since
1901. See also
id., at 192 (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 (“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
Wes-berry v.
Sanders, 376 U. S.
1 –8 (1964), the Court invalidated Georgia’s malapportioned
congressional map, underwhich 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. Later that same Term, in
Reynolds v.
Sims, 377 U. S. 533, 568 (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 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 –531 (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 –843 (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
(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
–94 (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]
B
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 (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. ___, ___, ___–___ (2012) (
per curiam) (slip op.,
at 4, 8–10).
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 injunction
barring use of the existing Senate map in favor of a map that would
equalize the voter population in each district.
The case was referred to a three-judge District
Court for hearing and decision. See 28 U. S. C. §2284(a);
Shapiro v.
McManus, 577 U. S. ___, ___–___
(2015) (slip op., at 5–7). That court dismissed the complaint for
failure to state a claim on which relief could be granted.
Appellants, the District Court explained, “rel[y] upon a theory
never before accepted by the Supreme Court or any circuit court:
that the metric of apportionment employed by Texas (total
population) results in an unconstitutional apportionment because it
does not achieve equality as measured by Plaintiffs’ chosen
metric—voter population.” App. to Juris. Statement 9a. Decisions of
this Court, the District Court concluded, permit jurisdictions to
use any neutral, nondiscriminatory population baseline, including
total population, when drawing state and local legislative
districts.
Id., at 13a–14a.[
6]
We noted probable jurisdiction, 575 U. S.
___ (2015), and now affirm.
II
The parties and the United States advance
different positions in this case. As they did before the District
Court, appellants insist that the Equal Protection Clause requires
jurisdictions to draw state and local legislative districts with
equal voter-eligible populations, thus protecting “voter equality,”
i.e., “the right of eligible voters to an equal vote.” Brief
for Appellants 14.[
7] To comply
with their proposed rule, appellants suggest, jurisdictions should
design districts based on citizen-voting-age-population (CVAP) data
from the Census Bureau’s American Community Survey (ACS), an annual
statistical sample of the U. S. population. Texas responds
that jurisdic-tions may, consistent with the Equal Protection
Clause, design districts using any population baseline—including
total population and voter-eligible population—so long as the
choice is rational and not invidiously discriminatory. Although its
use of total-population data from the census was permissible, Texas
therefore argues, it could have used ACS CVAP data instead. Sharing
Texas’ position that the Equal Protection Clause does not mandate
use of voter-eligible population, the United States urges us not to
address Texas’ separate assertion that the Constitution allows
States to use alternative population baselines, including
voter-eligible population. Equalizing total population, the United
States maintains, vindicates the principle of representational
equality by “ensur[ing] that the voters in each district have the
power to elect a representative who represents the same number of
constituents as all other representatives.” Brief for United States
as
Amicus Curiae 5.
In agreement with Texas and the United States,
we reject appellants’ attempt to locate a voter-equality mandate in
the Equal Protection Clause. As history, precedent, and practice
demonstrate, it is plainly permissible for jurisdictions to measure
equalization by the total population of state and local legislative
districts.
A
We begin with constitutional history. At the
time of the founding, the Framers confronted a question analogous
to the one at issue here: On what basis should congressional
districts be allocated to States? The Framers’ solution, now known
as the Great Compromise, was to provide each State the same number
of seats in the Senate, and to allocate House seats based on
States’ total populations. “Representatives and direct Taxes,” they
wrote, “shall be apportioned among the several States which may be
included within this Union,
according to their respective
Numbers.” U. S. Const., Art. I, §2, cl. 3 (emphasis
added). “It is a fundamental principle of the proposed
constitution,” James Madison explained in the Federalist Papers,
“that as the aggregate number of representatives allotted to the
several states, is to be . . . founded on the aggregate
number of inhabitants; so, the right of choosing this allotted
number in each state, is to be exercised by such part of the
inhabitants, as the state itself may designate.” The Federalist No.
54, p. 284 (G. Carey & J. McClellan eds. 2001). In other words,
the basis of
representation in the House was to include all
inhabitants—although slaves were counted as only three-fifths of a
person—even though States remained free to deny many of those
inhabitants the right to participate in the selection of their
representatives.[
8] Endorsing
apportionment based on total population, Alexander Hamilton
declared: “There can be no truer principle than this—that every
individual of the commu-nity at large has an equal right to the
protection of govern-ment.” 1 Records of the Federal Convention of
1787, p. 473 (M. Farrand ed. 1911).[
9]
When debating what is now the Fourteenth
Amendment, Congress reconsidered the proper basis for apportioning
House seats. Concerned that Southern States would not willingly
enfranchise freed slaves, and aware that “a slave’s freedom could
swell his state’s population for purposes of representation in the
House by one person, rather than only three-fifths,” the Framers of
the Fourteenth Amendment considered at length the possibility of
allocating House seats to States on the basis of voter population.
J. Sneed, Footprints on the Rocks of the Mountain: An Account of
the Enactment of the Fourteenth Amendment 28 (1997). See also
id., at 35 (“[T]he apportionment issue consumed more time in
the Fourteenth Amendment debates than did any other topic.”).
In December 1865, Thaddeus Stevens, a leader of
the Radical Republicans, introduced a constitutional amendment that
would have allocated House seats to States “according to their
respective legal voters”; in addition, the proposed amendment
mandated that “[a] true census of the legal voters shall be taken
at the same time with the regular census.” Cong. Globe, 39th Cong.,
1st Sess., 10 (1866). Supporters of apportionment based on voter
population employed the same voter-equality reasoning that
appellants now echo. See,
e.g., id., at 380 (remarks
of Rep. Orth) (“[T]he true principle of representation in Congress
is that voters alone should form the basis, and that each voter
should have equal political weight in our
Government. . . .”);
id., at 404 (remarks of
Rep. Lawrence) (use of total population “disregards the fundamental
idea of all just representation, that every voter should be equal
in political power all over the Union”).
Voter-based apportionment proponents encountered
fierce resistance from proponents of total-population
apportionment. Much of the opposition was grounded in the principle
of representational equality. “As an abstract proposition,” argued
Representative James G. Blaine, a leading critic of allocating
House seats based on voter population, “no one will deny that
population is the true basis of representation; for women,
children, and other non-voting classes may have as vital an
interest in the legislation of the country as those who actually
deposit the ballot.”
Id., at 141. See also
id., at
358 (remarks of Rep. Conkling) (arguing that use of a
voter-population basis “would shut out four fifths of the citizens
of the country—women and children, who are citizens, who are taxed,
and who are, and always have been, represented”);
id., at
434 (remarks of Rep. Ward) (“[W]hat becomes of that large class of
non-voting tax-payers that are found in every section? Are they in
no matter to be represented? They certainly should be enumerated in
making up the whole number of those entitled to a
representative.”).
The product of these debates was §2 of the
Fourteenth Amendment, which retained total population as the
congressional apportionment base. See U. S. Const., Amdt. 14,
§2 (“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.”). Introducing
the final version of the Amendment on the Senate floor, Senator
Jacob Howard explained:
“[The] basis of representation is numbers
. . . ; that is, the whole population except untaxed
Indians and persons excluded by the State laws for rebellion or
other crime. . . . The committee adopted numbers as
the most just and satisfactory basis, and this is the principle
upon which the Constitution itself was originally framed, that the
basis of representation should depend upon numbers; and such, I
think, after all, is the safest and most secure principle upon
which the Government can rest. Numbers, not voters; numbers, not
property; this is the theory of the Constitution.” Cong. Globe,
39th Cong., 1st Sess., 2766–2767 (1866).
Appellants ask us to find in the Fourteenth
Amendment’s Equal Protection Clause a rule inconsistent with this
“theory of the Constitution.” But, as the Court recognized in
Wesberry, this theory underlies not just the method of
allocating House seats to States; it applies as well tothe method
of apportioning legislative seats within States. “The debates at
the [Constitutional] Convention,” the Court explained, “make at
least one fact abundantly clear: that when the delegates agreed
that the House should represent ‘people,’ they intended that in
allocating Congressmen the number assigned to each state should be
determined solely by the number of inhabitants.” 376 U. S., at
13. “While it may not be possible to draw congressional districts
with mathematical precision,” the Court acknowledged, “that is no
excuse for ignoring our Constitution’s plain objective of making
equal representation for
equal numbers of people the
fundamental goalfor the House of Representatives.”
Id., at
18 (emphasis added). It cannot be that the Fourteenth Amendment
calls for the apportionment of congressional districts based on
total population, but simultaneously prohibits States from
apportioning their own legislative districts on the same basis.
Cordoning off the constitutional history of
congressional districting, appellants stress two points.[
10] First, they draw a distinction
between allocating seats
to States, and apportioning seats
within States. The Framers selected total population for the
former, appellants and their
amici argue, because of
federalism concerns inapposite to intra-state districting. These
concerns included the perceived risk that a voter-population base
might encourage States to expand the franchise unwisely, and the
hope that a total-population base might counter States’ incentive
to undercount their populations, thereby reducing their share of
direct taxes.
Wesberry, however, rejected the distinction
appellants now press. See
supra, at 12. Even without the
weight of
Wesberry, we would find appellants’ distinction
unconvincing. One can accept that federalism—or, as Justice Alito
emphasizes, partisan and regional political advantage, see
post, at 6–13—figured in the Framers’ selection of total
population as the basis for allocating congressional seats. Even
so, it remains beyond doubt that the principle of representational
equality figured prominently in the decision to count people,
whether or not they qualify as voters.[
11]
Second, appellants and Justice Alito urge, see
post, at 5–6, the Court has typically refused to analogize
to features of the federal electoral system—here, the
constitutional scheme governing congressional apportionment—when
considering challenges to state and local election laws. True, in
Reynolds, the Court rejected Alabama’s argument that it had
permissibly modeled its State Senate apportionment scheme—one
Senator for each county—on the United States Senate. “[T]he federal
analogy,” the Court explained, “[is] inapposite and irrelevant to
state legislative districting schemes” because “[t]he system of
representation in the two Houses of the Federal Congress” arose
“from unique historical circumstances.” 377 U. S., at 573–574.
Likewise, in
Gray v.
Sanders, 372 U. S. 368
–372, 378 (1963), Georgia unsuccessfully attempted to defend, by
analogy to the electoral college, its scheme of assigning a certain
number of “units” to the winner of each county in statewide
elections.
Reynolds and
Gray, however,
involved features of the federal electoral system that contravene
the principles of both voter
and representational equality
to favor interests that have no relevance outside the federal
context. Senate seats were allocated to States on an equal basis to
respect state sovereignty and increase the odds that the smaller
States would ratify the Constitution. See
Wesberry, 376
U. S., at 9–13 (describing the history of the Great
Compromise). See also
Reynolds, 377 U. S., at 575
(“Political subdivisions of States—counties, cities, or
whatever—never were and never have been considered as sovereign
entities. . . . The relationship of the States to
the Federal Government could hardly be less analogous.”). “The
[Electoral] College was created to permit the most knowledge-able
members of the community to choose the executive of anation whose
continental dimensions were thought to preclude an informed choice
by the citizenry at large.”
Williams v.
Rhodes, 393
U. S. 23 –44 (1968) (Harlan, J., concurring in result). See
also
Gray, 372 U. S., at 378 (“The inclusion of the
electoral college in the Constitution, as the result of specific
historical concerns, validated the collegiate principle despite its
inherent numerical inequality.” (footnote omitted)). By contrast,
as earlier developed, the constitutional scheme for congressional
apportion-ment rests in part on the same representational concerns
that exist regarding state and local legislative districting. The
Framers’ answer to the apportionment question inthe congressional
context therefore undermines appellants’ contention that districts
must be based on voter population.
B
Consistent with constitutional history, this
Court’s past decisions reinforce the conclusion that States and
localities may comply with the one-person, one-vote principle by
designing districts with equal total populations. Quoting language
from those decisions that, in appellants’ view, supports the
principle of equal voting power—and emphasizing the phrase
“one-person, one-vote”—appellants contend that the Court had in
mind, and constantly meant, that States should equalize the
voter-eligible population of districts. See
Reynolds, 377
U. S., at 568 (“[A]n individual’s right to vote for State
legislators is unconstitutionally impaired when its weight is in a
substantial fashion diluted when compared with votes of citizens
living on other parts of the State.”);
Gray, 372 U. S.,
at 379–380 (“The concept of ‘we the people’ under the Constitution
visualizes no preferred class of voters but equality among those
who meet the basic qualifications.”). See also
Hadley v.
Junior College Dist. of Metropolitan Kansas City, 397
U. S. 50, 56 (1970) (“[W]hen members of an elected body are
chosen from separate districts, each district must be established
on a basis that will insure, as far as is practicable, that equal
numbers of voters can vote for proportionally equal numbers of
officials.”). Appellants, however, extract far too much from
selectively chosen language and the “one-person, one-vote”
slogan.
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. In
Reynolds, for
instance, the Court described “the fundamental principle of
representative government in this country” as “one of equal
representation for equal numbers of people.” 377 U. S., at
560–561. See also
Davis v.
Bandemer, 478 U. S.
109, 123 (1986) (“[I]n formulating the one person, one vote
formula, the Court characterized the question posed by election
districts of disparate size as an issue of fair representation.”);
Reynolds, 377 U. S., at 563 (rejecting state
districting schemes that “give the same number of representatives
to unequal numbers of constituents”). And the Court has suggested,
repeatedly, that districting based on total population serves
both the State’s interest in preventing vote dilution
and its interest in ensuring equality of representation. See
Board of Estimate of City of New York v.
Morris, 489
U. S. 688 –694 (1989) (“If districts of widely unequal
population elect an equal number of representatives, the voting
power of each citizen in the larger constituencies is debased and
the citizens in those districts have a smaller share of
representation than do those in the smaller districts.”). See also
Kirkpatrick, 394 U. S., at 531 (recognizing in a
congressional-districting case that “[e]qual representation for
equal numbers of people is a principle designed to prevent
debasement of voting power and diminution of access to elected
representatives”).[
12]
Moreover, from
Reynolds on, the Court has
consistently looked to total-population figures when evaluating
whether districting maps violate the Equal Protection Clause
bydeviating impermissibly from perfect population equality. See
Brief for Appellees 29–31 (collecting cases brought under the Equal
Protection Clause). See also
id., at 31, n. 9
(collecting congressional-districting cases). Appellants point to
no instance in which the Court has determined the permissibility of
deviation based on eligible- or registered-voter data. It would
hardly make sense for the Court to have mandated voter equality
sub silentio and then used a total-population baseline to
evaluate compliance with that rule. More likely, we think, the
Court has always assumed the permissibility of drawing districts to
equalize total population.
“In the 1960s,” appellants counter, “the
distribution of the voting population generally did not deviate
from the distribution of total population to the degree necessary
to raise this issue.” Brief for Appellants 27. To support this
assertion, appellants cite only a District Court decision, which
found no significant deviation in the distribution of voter and
total population in “densely populated areas of New York State.”
WMCA, Inc. v.
Lomenzo, 238 F. Supp. 916, 925
(SDNY), aff’d, 382 U. S. 4 (1965) (
per curiam).
Had this Court assumed such equivalence on a national scale, it
likely would have said as much.[
13] Instead, in
Gaffney v.
Cummings, 412
U. S. 735 –747 (1973), the Court acknowledged that voters may
be distributed un-evenly within jurisdictions. “[I]f it is the
weight of a person’s vote that matters,” the Court observed, then
“total population—even if stable and accurately taken—may not
actually reflect that body of voters whose votes must be counted
and weighed for the purposes of reapportionment, because ‘census
persons’ are not voters.”
Id., at 746. Nonetheless, the
Court in
Gaffney recognized that the one-person, one-vote
rule is designed to facilitate “[f ]air and effective
representation,”
id., at 748, and evaluated compliance with
the rule based on total population alone,
id., at 750.
C
What constitutional history and our prior
decisions strongly suggest, settled practice confirms. Adopting
voter-eligible apportionment as constitutional command would upset
a well-functioning approach to districting that all 50 States and
countless local jurisdictions have followed for decades, even
centuries. Appellants have shown no reason for the Court to disturb
this longstanding use of total population. See
Walz v.
Tax Comm’n of City of New York, 397 U. S. 664, 678
(1970) (“unbroken practice” followed “openly and by affirmative
state action, not covertly or by state inaction, is not something
to be lightly cast aside”). See also
Burson v.
Freeman, 504 U. S. 191 –206 (1992) (plurality opinion)
(upholding a law limiting campaigning in areas around polling
places in part because all 50 States maintain such laws, so there
is a “widespread and time-tested consensus” that legislation of
this order serves important state interests). As the Framers of the
Constitution and the Fourteenth Amendment comprehended,
representatives serve all residents, not just those eligible or
registered to vote. See
supra, at 8–12. Nonvoters 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. By ensuring that
each representative is subject to requests and suggestions from the
same number of constituents, total-population apportionment
promotes equitable and effective representation. See
McCormick v.
United States, 500 U. S. 257, 272
(1991) (“Serving constituents and supporting legislation that will
benefit the district and individ-uals and groups therein is the
everyday business of a legislator.”).[
14]
In sum, the rule appellants urge has no mooring
in the Equal Protection Clause. The Texas Senate map, we therefore
conclude, complies with the requirements of the one-person,
one-vote principle.[
15]
Because history, precedent, and practice suffice to reveal the
infirmity of appellants’ claims, we need not and do not resolve
whether, as Texas now argues, States may draw districts to equalize
voter-eligible population rather than total population.
* * *
For the reasons stated, the judgment of the
United States District Court for the Western District of Texas
is
Affirmed.