Texas Finds Sympathy in Latest|Supreme Court Redistricting Saga

     (CN) – The drawing of legislative maps across the country hung in the balance Tuesday as the Supreme Court heard a challenge to the division of 31 state senate districts in Texas.
     When the Texas Legislature carved the state senate districts at issue after the 2010 U.S. census, it used total population, rather than the population of citizens of voting age.
     The result put Sue Evenwel, of sparsely populated Titus County, into a district with a relatively large percentage of eligible voters.
     Titus sits in the northeast part of the state, near Arkansas and Louisiana.
     She complains that the map diluted the strength of her vote, as compared with voters in other districts.
     Texas adopted the disputed map, Plan S172, in 2013 after a panel of federal judges enjoined the version passed in 2011.
     This one survived the ensuing challenge by Evenwel and co-plaintiff Edward Pfenninger, however, setting the state for their appeal to the U.S. Supreme Court.
     Perhaps not coincidentally, the justices preceded today’s hearing by ruling on a Maryland case in which a federal judge violated procedure by disposing of a gerrymandering challenge himself, rather than by convening a three-judge panel.
     Evenwel’s case aims to determine what exactly the Supreme Court under former chief Earl Warren meant in the 1960s when it found the 14th Amendment established the principle of one-person, one-vote, and how it applies to the ideal of equal representation.
     In a brief to the high court, attorneys for Evenwel at Consovoy McCarthy Park and Parenti Law supplied data showing that, if the Texas senate districts established by Plan S172 were based on the population of citizens of voting age, or registered voters, then deviations from the ideal – an equal number of voters in each district – would range from 40 to 49 percent in Evenwel’s district.
     This greatly exceeds the benchmark 10 percent deviation that the Supreme Court has said establishes a voter-dilution case, the firms argued.
     Texas Attorney General Ken Paxton countered in the state’s brief that the population deviation of 8 percent in senate districts proves that S172 did not illegally dilute Evenwel’s vote.
     Arguing for the state at Tuesday’s hearing, Texas Solicitor General Scott Keller said that Supreme Court precedent from the 1967 case Burns v. Richardson gives states “leeway to structure their elections as part of the core function of their sovereignty.”
     Justice Anthony Kennedy, known as one of the court’s moderate justices, pressed Keller on why the state chose between voter population and total population.
     “Why can’t you have both?” he asked, according to a transcript of the hearing.
     Keller said the effect of equalizing these populations would “inevitably” force states to disregard other traditional redistricting factors, “like compactness, continuity, keeping communities together.”
     Although Evenwel cited a demographer in her briefs who said Texas could have carved its senate districts to bring both voter and total population within 20 percent of the ideal, Keller said she did not deliver a map that proved it.
     Justice Sonia Sotomayor called out Evenwel’s attorney on the lack of data. “You had an expert say it, but you didn’t have an expert prove it,” Sotomayor said. “He did not come in with a map that did that.”
     Lead counsel William Consovoy noted first the case is at a stage where the court must accept the story from challengers as true.
     Second, “we don’t want the court or ourselves to write this map for Texas,” said Consovoy, of a firm in Arlington, Va. “We want the Texas Legislature to do its job.”
     Sotomayor and Justices Elena Kagan and Ruth Bader Ginsburg, who make up the court’s liberal bloc, attacked Consovoy’s claim that the one-person, one-vote, doctrine was meant to ensure equal representation by lawmakers of voters, not total population.
     Ginsburg urged Consovoy to explain why the court should disregard its precedent dating back to the 1960s.
     “We have had now, for half a century, population, that the population is the legitimate standard,” Ginsburg said. “We have never held to the contrary. So we have the states overwhelmingly for half a century using population as shown in the census, and now you’re saying they can’t do that anymore.”
     Kagan observed that the method for apportioning U.S. House of Representatives members among the states is based on total population, and that the framers of the 14th Amendment intended it that way.
     “How you go from that being mandated to it being prohibited in the state context is something that I still can’t quite work myself around,” Kagan told Consovoy.
     Consovoy countered that state legislative districts and House appointments are “fundamentally different concerns.”
     In an unlikely tag team, government attorney Ian Gershengorn argued as a friend of the court on behalf of Texas. Unlike Texas, however, Gershengorn said total population is the only legitimate measure.
     “Redistricting on the basis of total population, as Texas did here, vindicates the principle of equal representation for equal numbers of people,” Gershengorn argued.
     Texas faced no requirement “to redistrict on the basis of some as-yet-undefined measure of voter population,” he added.
     Experts say a ruling in Evenwel’s favor would shift political power from cities to rural areas, where voters tend to be whiter, older, richer and more likely to vote Republican.
     Consovoy represented Evenwel on behalf of The Project on Fair Representation, a legal defense foundation based in Austin, Texas.
     The nonprofit mounted a 2013 challenge before the Supreme Court that struck down key provisions of the Voting Rights Act, and is representing Abigail Fisher in her challenge of the University of Texas’ use of affirmative action in denying her admission.

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