On April 4, 2016, the United States Supreme Court decided Evenwel v. Abbott, No. 14-940, holding that a state may draw legislative districts based on total population.
In 2013, Texas adopted a new map for state Senate districts, which used census data to draw districts that included roughly the same total population. The maximum total-population deviation is 8.04 percent, which falls within the Supreme Court’s 10 percent presumptively permissible range. When the districts are measured by voter population, either eligible or registered voters, the maximum population deviation is over 40 percent.
Sue Evenwel and Edward Pfenninger sued, arguing that their votes were diluted in violation of the Equal Protection Clause, because they live in districts with particularly large eligible- and registered-voter populations.
A three-judge district court dismissed, holding that the complaint failed to state a claim because no court had ever held that apportioning by total population was unconstitutional because it did not achieve equality of voter population.
The Supreme Court affirmed. The Court noted that the founding fathers agreed when the constitution was adopted that representation in the House of Representatives was to be based on all inhabitants of the states. Congress reconsidered, and affirmed, this principle when adopting the Fourteenth Amendment.
Petitioners first argued that the rule for apportioning House of Representative seats did not apply to apportioning seats within states. The Court rejected this argument on the basis of its prior precedent, Wesberry v. Sanders. Wesberry concluded that there was no basis in the adoption of the Fourteenth Amendment for the principle that congressional districts are apportioned by total population and yet states are barred from apportioning their own legislative districts the same way.
In addition, the Court rejected petitioners’ argument that the Court generally does not analogize the federal electoral system to that of the states. The Court agreed that in some contexts it may not be appropriate to compare state and federal systems but reasoned that here, constitutional history is clear that congressional apportionment rests on the same representational concerns that exist within individual states.
In reaching its decision, the Court declined to consider whether states may draw districts to equalize voter-eligible population rather than total population.
Justice Ginsburg delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan joined. Justice Thomas filed an opinion concurring in the judgment. Justice Alito filed an opinion concurring in the judgment, which Justice Thomas joined except as to Part III-B.