Voting Rights in the Supreme Court

Posted by Elliot Louthen on December 17, 2015

Last Tuesday, December 8th, the Supreme Court debated the issues of voting rights and redistricting as it heard the cases Harris v. Arizona Independent Redistricting Commission and Evenwel v. Abbott. While FairVote does not have an official position on either case, both of these have considerable potential to affect electoral reform and transform representation as we know it.

The latter of the two cases has received the majority of media coverage as a ruling in favor of the the plaintiffs promises to have a sweeping impact on how districts are drawn for state legislatures, local government, and potentially Congress. In a nutshell, Evenwel questions whether districts should be evenly divided by total population (the number of residents) or by “electoral population” (the number of eligible voters). This is important because there are a number of sizable populations who are unable to vote, but today are counted when drawing districts, including children, disenfranchised felons, the mentally ill, and non-citizens, among others. Right now, all congressional districts and nearly all state legislative districts are drawn with roughly equal numbers of total persons, although with people moving regularly, it has to be based on a snapshot at a particular time that never maps perfectly to the actual population of the district.

If Evenwel wins and electoral population becomes the determining factor in apportionment, redistricting as we know it will change, with deviations from equal populations of districts that have been required since the Supreme Court rulings establishing equal population as a governing principle in the 1960's. Districts with larger proportions of people ineligible to vote will need to grow to include more eligible voters (diminishing the influence of the voters there now) and districts with smaller proportions of such persons will need to shrink (increasing the influence of the voters who remain in them).

The former of the two cases follows up on the similarly named Arizona redistricting case from last year’s term that upheld the use of independent commissions for congressional redistricting. This year, the justices were confronted with two questions that pertain to the ways in which a congressional map is drawn. First, can partisan motivations factor into the independent commission’s map? And second, is the preclearance facet of the Voting Rights Act - which applied to Arizona when the map was drawn, but does not apply to any state now - an acceptable motivation when creating districts?

Proportional representation, one of FairVote’s core innovations, arose during the oral arguments of the Arizona case when Justice Alito discussed the issue of representation parity. He commented, “If you have a system of proportional representation and you get 55 percent of the vote, you'll get 55 percent of the representatives… with single member districts and winner-take-all, a neutral districting plan will never produce exactly the same breakdown of legislators as the breakdown of the votes in the election.” Even though his comments were made as an aside, he underscored the impossibility of truly fair districting plans in a winner-take-all system. Conversely, FairVote advocates for a fair representation system for Congress in its Ranked Choice Voting Act as a way to ensure fair representation for all voters. No matter how the Court rules, redistricting and gerrymandering will always be an issue under the status quo.

 

Image Source: By Mr. Kjetil Ree. (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

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