JURIST Guest Columnist Joaquin G. Avila, a voting rights attorney, discusses the Supreme Court decision regarding voter populations…

Evenwel v Abbott was correctly decided. The Court basically held that states are not required to use eligible voter population data to create election districts that are equally populated. Based upon constitutional history, settled practice and precedent, the Court affirmed the use of population data to comply with the one person one vote principle.

The key issue is yet to be decided: whether it is constitutional to have legislative districts that are equal in eligible voter populations yet have disparities in total population. For the moment, states are free to choose a population base to redistrict election districts.

The practical result of having a redistricting plan based upon an eligible voter population base will be the creation of districts that vary widely in population. A contrary ruling that allows for such legislative districts with substantial population differences will have disastrous consequences on minority communities, especially Latino communities, which contain significant non-citizen populations.

These substantial population differences will in effect deny Latino communities of their First Amendment right to petition the government for a redress of grievances. In Garza v LA County, the ninth circuit held that, “interference with individuals’ free access to elected representatives impermissibly burdens their right to petition the government. Since ‘the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives’, this right to petition is an important corollary to the right to be represented.” Furthermore, since non-citizens are entitled to various federal and local benefits, such as emergency medical care, the Garza decision affirmed their right to petition their government for services and to influence how their tax dollars were spent. As Justice Brennan explained in White v Regester, equal representation for equal numbers of people is “a principle designed to prevent diminution of access to elected representatives.” In election districts that have large populations, Latinos will have greater difficulty in securing physical access to the offices of their elected officials. Such a redistricting will require governmental entities to expand the number of offices, especially in those communities where there is ineffective public transportation. The implementation of an eligible voter population redistricting base will require the development of new metrics to assure compliance with the Equal Protection Clause of the 14th Amendment to our Constitution. This new metric will require the development of new judicial standards to measure the number of persons serviced by each legislative office. The development of this new access metric will require decades of new litigation. A denial of an explicitly written constitutional right is a serious matter even for originalists.

Moreover, a contrary ruling will undo several decades of voting rights jurisprudence that resulted during decennial redistricting cycles. This jurisprudence represents a delicate balance and calibration of state and federal interests. The redistricting metric based upon an equal population base was carefully incorporated and crafted by the Supreme Court over a period of decades.

Finally, a contrary result mandating eligible voter population or permitting eligible voter population equality at the expense of equally populated districts runs contrary to the practical realities of redistricting because the Bureau of the Census does not provide eligible voter population statistics at the block level. Rather, eligible voter population statistics are provided at the block group level. These larger Census administrative units make it nearly impossible to meet the exacting de minimis population deviation standards of congressional redistricting and court-ordered districting plans.

Experienced district drawers are keenly aware of the necessity for block level statistics in order to create districting plans that can accommodate both state and federal interests. Having drawn districts since the 1970s as part of my voting rights litigation, it was extremely difficult to draw equally populated districts at the local governmental level using enumeration district and block group totals. The 1980 Census was highly welcomed by redistricting mapmakers because of the expanded block program that facilitated the drawing of congressional districts and local government election districts down to the block level. Thus, even if such an eligible voter population redistricting was permissible, the Bureau of the Census would have to substantially expand the geographic scope of its publishing data down to the block level. Given that the eligible voter population is based upon a sample basis, ACS, it may be statistically impossible for the Census Bureau to publish and disseminate accurate and reliable city block level data for eligible voter population groups.

There are additional practical concerns relating to increased public expenditures. An expansion of the ACS program to the block level will require greater expenditures by Congress, an unlikely outcome given the existing political gridlock in DC. Increasing the number of legislative offices at the state level in highly populated areas will also require the expenditure of scarce public funds, again a highly unlikely outcome given the scarcity of available public funding.

A contrary result in Evenwel will, in effect, result in an unfunded federal government mandate. In summary, as a practical matter, basing a redistricting plan on an eligible voter population will 1) create Equal Protection concerns in Latino communities, 2) be highly impractical; and 3) validate the perception that there are limits to federal court intervention, thereby undermining the authority of the federal judiciary. It will be similar to Justice Holmes’ observation in Giles v Harris (1903) that a federal court’s authority will be undermined when a federal court issues a specific order on paper that is impractical and, thus, unenforceable. (See Michael J. Klarman, From Jim Crow to Civil Rights: the Supreme Court and the Struggle for Racial Equality by (Oxford University Press) (2004)). Here, as in the Giles opinions where Supreme Court justices conceded they could provide no remedy even if Alabama was violating the 15th Amendment, a contrary result would undermine Congressional authority to enforce the federal Voting Rights Act and undermine the Supremacy Clause that binds the states and the federal court to the Constitution.

Joaquin G. Avila is a voting rights attorney with over 40 years of voting rights litigation experience, a Mac Arthur Foundation Fellow and recognized by the California State Assembly in 2015 as the State’s voting right gladiator. The author wants to both acknowledge and thank Molly Matter, Mr. Avila’s research assistant and a recent graduate of Seattle University School of Law for all of the research, stylistic and substantive edits and valuable feedback.

Suggested citation: Joaquin G. Avila, Evenwel upholds Republican Form of Representative Government, JURIST – Forum, April 29, 2016, http://jurist.org/forum/2016/04/joaquin-avila-evenwel-republican.php.