Supreme Court is skeptical of challenge to Texas district lines | McClatchy Washington Bureau

The Supreme Court on Tuesday seemed skeptical of changing the basis for drawing districts in a Texas redistricting case that could have far-reaching consequences for minority representation.

During the often lively hourlong oral argument in Evenwel v. Abbott, the attorney for the plaintiffs argued that the “one person-one vote” standard in drawing Texas state Senate lines should be based on the number of citizens eligible to vote and not on the entire population. Sue Evenwel is the lead plaintiff from northeastern Texas, and Greg Abbott is the governor of Texas and previously the attorney general.

Counting only voters or citizens eligible to vote would cut out anyone under 18 and noncitizens, including Latinos in the United States who are undocumented or don’t have citizenship. Critics say that including those people when calculating districts dilutes the value of voters in some districts.

“This appeal presents a fundamental question. That question is whether the one-person, one-vote rule affords eligible voters any reasonable protection,” said William Consovoy, an attorney for Evenwel.

Evenwel lives in Titus County, and lawyers for co-plaintiff Edward Pfenninger of Montgomery County and her maintain that their Senate districts have far more registered voters than other urban-dominated areas do.

On Tuesday, the justices for the most part questioned changing the population standard and worried about using possibly incomplete data to count potential voters.

“And we have had now, for half a century, population – that the population – is the legitimate standard,” said Justice Ruth Bader Ginsburg. “We have never held to the contrary.” She also brought up that by using the voter standard, women would have been excluded altogether from 1868 until 1920, when the 19th Amendment gave them the right to vote.

No justice seemed to embrace the voter standard.

Justice Sonia Sotomayor said that a database called the American Community Survey, which is operated by the U.S. Census Bureau, “has been, I think, almost decisively been proven as being inadequate. It only measures cities with populations or places with populations over 65,000. Just on that ground alone, there are going to be districts that can’t rely on it.”

But Justice Anthony Kennedy, a frequent swing vote on Supreme Court decisions, asked of the two metrics: “Why can’t we have both?”

Legal experts are watching the case with interest.

Alan Clayton, a California redistricting specialist, said, “I think the court’s going to strike down Evenwel and not go with a prescription nationally.” That could leave states with the option of using population or the number of voters in determining district lines. The decision would affect all levels of state and local jurisdictions.

Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, a Washington legal research center, referred to the 14th Amendment’s protection of all people, not just voters, and said she saw agreement among the justices in their questions: “There seemed to be little appetite from the justices this morning to upend this quintessentially American system of equal representation.”

Texas used the population standard in drawing the state Senate lines – a position it defended Tuesday – but it wants to retain the right to use voters as a metric, as well.

“States have been using total population in redistricting for decades, and the Supreme Court has recognized that as a valid reapportionment base. We are hopeful the court will recognize that it should ultimately be up to the states to decide how to apportion its districts,” said Cynthia Meyer, spokeswoman for the office of the Texas attorney general.

The Justice Department, which intervened on Texas’ side, took a slightly different position from the state, advocating for population as the basis and not letting the state have an option. Deputy Solicitor General Ian Heath Gershengorn made a pointed case for using population and not imposing a voter standard, especially since the Constitution apportions House districts by population.

“We think it would be a very odd interpretation to say that the Constitution forbids for state legislative redistricting what it requires for congressional redistricting,” he said.

The Texas Democratic Party took a strong stand in favor of counting everyone in drawing districts, an approach that has helped in creating minority opportunity districts.

“We have come a long way as a nation from the dark days when slaves were only recognized as three-fifths persons for the purpose of apportionment to Congress. If Evenwel succeeds, millions of Texans will not even be considered as persons. Millions will lose their voice in government,” said Texas Democratic Party Chairman Gilberto Hinojosa.

In a statement, the Congressional Black Caucus said its members “hold firmly the belief that every person living in America deserves equal representation and has the right to be counted in our democracy. Sue Evenwel’s egregious attempt to deny millions of individuals representation when determining state legislative districts is an attack on our democracy and threatens the ability of elected officials to adequately represent and serve their communities.”