Followers of the blog recognize that in addition to our regular menu of regulatory takings, eminent domain, inverse condemnation, and land use related items, our practice also includes voting rights and election law issues. So every now and then we post up interesting cases and decisions, especially where the issues involved are related to cases which we've done in the past.
Thus, it was with great interest that we saw the Supreme Court today noting probable jurisdiction in a case we've been following, ordering full briefing and argument on an issue that is near and dear to us: the question of who exactly gets counted under the Fourteenth Amendment's Equal Protection Clause requirement that state legislative districts be of roughly equal size. See Evenwel v. Abott, No. 14-940. The question the Court has never squarely answered is equal size of who? Does the Equal Protection Clause require states to count the total population? To count only voters? Or is the question of whom to count left entirely up to the states?
What this issue comes down to is which of the Equal Protection Clause's two competing principles take precedence: (1) representation equality (the idea that elected officials represent everyone, not just voters), or (2) voting equality (the notion that voters are entitled to have an equal opportunity to elect representatives). Most states count everyone, but our home jurisdiction of Hawaii counts only those whom it considers "residents," those whom the state infers intend to remain in Hawaii permanently. By doing so, Hawaii excludes from the count (and thus from being represented) the nearly 8% of the actual population that are either associated with the active duty military or who are not eligible to pay resident tuition at local universities.
In a recent case (Kostick v. Nago, No. 13-456), we argued that this scheme falls short of Equal Protection's requirements, and that representational equality is the overriding principle. Equal Protection requires a count of everyone, including local military and students, regardless of whether the state thinks they intend to remain in Hawaii forever. Or at least the state has a high burden if it wants to cut out some people from being represented equally, while it includes others without any meaningful inquiry.
We ended up on the short end of that case, with a three-judge panel concluding that the State has nearly unreviewable leeway to determine whom to count, and how to count them. The Supreme Court summarily affirmed.
Bu the issue may be back. Here's the Question Presented in Evenwel:
In Reynolds v. Sims, 377 U.S. 533 (1964), this Court held that the Equal Protection Clause of the Fourteenth Amendment includes a “one-person, one-vote” principle. This principle requires that, “when 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.” Hadley v. Junior Coll. Dist. of Metro. Kansas City, Mo., 397 U.S. 50, 56 (1970). In 2013, the Texas Legislature enacted a State Senate map creating districts that, while roughly equal in terms of total population, grossly malapportioned voters. Appellants, who live in Senate districts significantly overpopulated with voters, brought a one-person, one-vote challenge, which the three-judge district court below dismissed for failure to state a claim. The district court held that Appellants’ constitutional challenge is a judicially unreviewable political question.
The question presented is whether the “one-person, one-vote” principle of the Fourteenth Amendment creates a judicially enforceable right ensuring that the districting process does not deny voters an equal vote.
Like the three-judge District Court in Kostick, the lower court in Evenwel relied on Burns v. Richardson, 384 U.S. 73 (1966), a case originating in Hawaii, which both courts viewed as giving the states total leeway in how they define their reapportionment populations.
We'll be following along to see if anything has changed since then. In the meantime, here are the appeal briefs from SCOTUSblog (remember, reapportionment cases are one of the few areas left for Supreme Court mandatory jurisdiction), as well as a short summary from the Wall Street Journal.