Evenwel v. Abbott , 136 S. Ct. 1120 ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
EVENWEL ET AL. v. ABBOTT, GOVERNOR OF TEXAS,
ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF TEXAS
No. 14–940. Argued December 8, 2015—Decided April 4, 2016
Under the one-person, one-vote principle, jurisdictions must design
legislative districts with equal populations. See Wesberry v. Sanders,
376 U.S. 1, 7–8, Reynolds v. Sims, 377 U.S. 533, 568. In the context
of state and local legislative districting, States may deviate some-
what from perfect population equality to accommodate traditional
districting objectives. Where the maximum population deviation be-
tween the largest and smallest district is less than 10%, a state or lo-
cal legislative map presumptively complies with the one-person, one-
vote rule.
Texas, like all other States, uses total-population numbers from the
decennial census when drawing legislative districts. After the 2010
census, Texas adopted a State Senate map that has a maximum to-
tal-population deviation of 8.04%, safely within the presumptively
permissible 10% range. However, measured by a voter-population
baseline—eligible voters or registered voters—the map’s maximum
population deviation exceeds 40%. Appellants, who live in Texas
Senate districts with particularly large eligible- and registered-voter
populations, filed suit against the Texas Governor and Secretary of
State. Basing apportionment on total population, appellants con-
tended, dilutes their votes in relation to voters in other Senate dis-
tricts, in violation of the one-person, one-vote principle of the Equal
Protection Clause. Appellants sought an injunction barring use of
the existing Senate map in favor of a map that would equalize the
voter population in each district. A three-judge District Court dis-
missed the complaint for failure to state a claim on which relief could
be granted.
Held: As constitutional history, precedent, and practice demonstrate, a
2 EVENWEL v. ABBOTT
Syllabus
State or locality may draw its legislative districts based on total pop-
ulation. Pp. 7–19.
(a) Constitutional history shows that, at the time of the founding,
the Framers endorsed allocating House seats to States based on total
population. Debating what would become the Fourteenth Amend-
ment, Congress reconsidered the proper basis for apportioning House
seats. Retaining the total-population rule, Congress rejected pro-
posals to allocate House seats to States on the basis of voter popula-
tion. See U. S. Const., Amdt. 14, §2. The Framers recognized that
use of a total-population baseline served the principle of representa-
tional equality. Appellants’ voter-population rule is inconsistent with
the “theory of the Constitution,” Cong. Globe, 39th Cong., 1st Sess.,
2766–2767, this Court recognized in Wesberry as underlying not just
the method of allocating House seats to States but also the method of
apportioning legislative seats within States. Pp. 8–15.
(b) This Court’s past decisions reinforce the conclusion that States
and localities may comply with the one-person, one-vote principle by
designing districts with equal total populations. Appellants assert
that language in this Court’s precedent supports their view that
States should equalize the voter-eligible population of districts. But
for every sentence appellants quote, one could respond with a line
casting the one-person, one-vote guarantee in terms of equality of
representation. See, e.g., Reynolds, 377 U.S., at 560–561. Moreover,
from Reynolds on, the Court has consistently looked to total-
population figures when evaluating whether districting maps violate
the Equal Protection Clause by deviating impermissibly from perfect
population equality. Pp. 15–18.
(c) Settled practice confirms what constitutional history and prior
decisions strongly suggest. Adopting voter-eligible apportionment as
constitutional command would upset a well-functioning approach to
districting that all 50 States and countless local jurisdictions have
long followed. As the Framers of the Constitution and the Four-
teenth Amendment comprehended, representatives serve all resi-
dents, not just those eligible to vote. Nonvoters have an important
stake in many policy debates and in receiving constituent services.
By ensuring that each representative is subject to requests and sug-
gestions from the same number of constituents, total-population ap-
portionment promotes equitable and effective representation.
Pp. 18–19.
(d) Because constitutional history, precedent, and practice reveal
the infirmity of appellants’ claim, this Court need not resolve wheth-
er, as Texas now argues, States may draw districts to equalize voter-
eligible population rather than total population. P. 19.
Affirmed.
Cite as: 578 U. S. ____ (2016) 3
Syllabus
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed
an opinion concurring in the judgment, in which THOMAS, J., joined
except as to Part III–B.
Cite as: 578 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–940
_________________
SUE EVENWEL, ET AL., APPELLANTS v. GREG
ABBOTT, GOVERNOR OF TEXAS, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF TEXAS
[April 4, 2016]
JUSTICE GINSBURG delivered the opinion of the Court.
Texas, like all other States, draws its legislative dis-
tricts on the basis of total population. Plaintiffs-
appellants are Texas voters; they challenge this uniform
method of districting on the ground that it produces un-
equal districts when measured by voter-eligible population.
Voter-eligible population, not total population, they urge,
must be used to ensure that their votes will not be deval-
ued in relation to citizens’ votes in other districts. We
hold, based on constitutional history, this Court’s deci-
sions, and longstanding practice, that a State may draw
its legislative districts based on total population.
I
A
This Court long resisted any role in overseeing the
process by which States draw legislative districts. “The
remedy for unfairness in districting,” the Court once held,
“is to secure State legislatures that will apportion prop-
erly, or to invoke the ample powers of Congress.” Colegrove
v. Green, 328 U.S. 549, 556 (1946). “Courts ought not to
enter this political thicket,” as Justice Frankfurter put it.
2 EVENWEL v. ABBOTT
Opinion of the Court
Ibid.
Judicial abstention left pervasive malapportionment
unchecked. In the opening half of the 20th century, there
was a massive population shift away from rural areas and
toward suburban and urban communities. Nevertheless,
many States ran elections into the early 1960’s based on
maps drawn to equalize each district’s population as it
was composed around 1900. Other States used maps
allocating a certain number of legislators to each county
regardless of its population. These schemes left many
rural districts significantly underpopulated in comparison
with urban and suburban districts. But rural legislators
who benefited from malapportionment had scant incentive
to adopt new maps that might put them out of office.
The Court confronted this ingrained structural inequal-
ity in Baker v. Carr, 369 U.S. 186, 191–192 (1962). That
case presented an equal protection challenge to a Tennes-
see state-legislative map that had not been redrawn since
1901. See also id., at 192 (observing that, in the mean-
time, there had been “substantial growth and redistribu-
tion” of the State’s population). Rather than steering clear
of the political thicket yet again, the Court held for the
first time that malapportionment claims are justiciable.
Id., at 237 (“We conclude that the complaint’s allegations
of a denial of equal protection present a justiciable consti-
tutional cause of action upon which appellants are entitled
to a trial and a decision.”).
Although the Court in Baker did not reach the merits of
the equal protection claim, Baker’s justiciability ruling set
the stage for what came to be known as the one-person,
one-vote principle. Just two years after Baker, in Wes-
berry v. Sanders, 376 U.S. 1, 7–8 (1964), the Court invali-
dated Georgia’s malapportioned congressional map, under
which the population of one congressional district was
“two to three times” larger than the population of the
others. Relying on Article I, §2, of the Constitution, the
Cite as: 578 U. S. ____ (2016) 3
Opinion of the Court
Court required that congressional districts be drawn with
equal populations. Id., at 7, 18. Later that same Term, in
Reynolds v. Sims, 377 U.S. 533, 568 (1964), the Court
upheld an equal protection challenge to Alabama’s malap-
portioned state-legislative maps. “[T]he Equal Protection
Clause,” the Court concluded, “requires that the seats in
both houses of a bicameral state legislature must be ap-
portioned on a population basis.” Ibid. Wesberry and
Reynolds together instructed that jurisdictions must de-
sign both congressional and state-legislative districts with
equal populations, and must regularly reapportion dis-
tricts to prevent malapportionment.1
Over the ensuing decades, the Court has several times
elaborated on the scope of the one-person, one-vote rule.
States must draw congressional districts with populations
as close to perfect equality as possible. See Kirkpatrick v.
Preisler, 394 U.S. 526, 530–531 (1969). But, when draw-
ing state and local legislative districts, jurisdictions are
permitted to deviate somewhat from perfect population
equality to accommodate traditional districting objectives,
among them, preserving the integrity of political subdivi-
sions, maintaining communities of interest, and creating
geographic compactness. See Brown v. Thomson, 462
U.S. 835, 842–843 (1983). Where the maximum popula-
tion deviation between the largest and smallest district is
less than 10%, the Court has held, a state or local legisla-
tive map presumptively complies with the one-person, one-
vote rule. Ibid.2 Maximum deviations above 10% are
——————
1 In Avery v. Midland County, 390 U.S. 474, 485–486 (1968), the
Court applied the one-person, one-vote rule to legislative apportion-
ment at the local level.
2 Maximum population deviation is the sum of the percentage devia-
tions from perfect population equality of the most- and least-populated
districts. See Chapman v. Meier, 420 U.S. 1, 22 (1975). For example,
if the largest district is 4.5% overpopulated, and the smallest district is
2.3% underpopulated, the map’s maximum population deviation is
4 EVENWEL v. ABBOTT
Opinion of the Court
presumptively impermissible. Ibid. See also Mahan v.
Howell, 410 U.S. 315, 329 (1973) (approving a state-
legislative map with maximum population deviation of
16% to accommodate the State’s interest in “maintaining
the integrity of political subdivision lines,” but cautioning
that this deviation “may well approach tolerable limits”).
In contrast to repeated disputes over the permissibility
of deviating from perfect population equality, little contro-
versy has centered on the population base jurisdictions
must equalize. On rare occasions, jurisdictions have relied
on the registered-voter or voter-eligible populations of
districts. See Burns v. Richardson, 384 U.S. 73, 93–94
(1966) (holding Hawaii could use a registered-voter popu-
lation base because of “Hawaii’s special population prob-
lems”—in particular, its substantial temporary military
population). But, in the overwhelming majority of cases,
jurisdictions have equalized total population, as measured
by the decennial census. Today, all States use total-
population numbers from the census when designing
congressional and state-legislative districts, and only
seven States adjust those census numbers in any mean-
ingful way.3
——————
6.8%.
3 The Constitutions and statutes of ten States—California, Delaware,
Hawaii, Kansas, Maine, Maryland, Nebraska, New Hampshire, New
York, and Washington—authorize the removal of certain groups from
the total-population apportionment base. See App. to Brief for Appel-
lees 1a–46a (listing relevant state constitutional and statutory provi-
sions). Hawaii, Kansas, and Washington exclude certain non-
permanent residents, including nonresident members of the military.
Haw. Const., Art. IV, §4; Kan. Const., Art. 10, §1(a); Wash. Const., Art.
II, §43(5). See also N. H. Const., pt. 2, Art. 9–a (authorizing the state
legislature to make “suitable adjustments to the general census . . . on
account of non-residents temporarily residing in this state”). Califor-
nia, Delaware, Maryland, and New York exclude inmates who were
domiciled out-of-state prior to incarceration. Cal. Elec. Code Ann.
§21003(5) (2016 West Cum. Supp.); Del. Code Ann., Tit. 29, §804A
(Supp. 2014); Md. State Govt. Code Ann. §2–2A–01 (2014); N. Y. Legis.
Cite as: 578 U. S. ____ (2016) 5
Opinion of the Court
B
Appellants challenge that consensus. After the 2010
census, Texas redrew its State Senate districts using a
total-population baseline. At the time, Texas was subject
to the preclearance requirements of §5 of the Voting
Rights Act of 1965. 52 U.S. C. §10304 (requiring jurisdic-
tions to receive approval from the U. S. Department of
Justice or the U. S. District Court for the District of Co-
lumbia before implementing certain voting changes).
Once it became clear that the new Senate map, S148,
would not receive preclearance in advance of the 2012
elections, the U. S. District Court for the Western District
of Texas drew an interim Senate map, S164, which also
equalized the total population of each district. See Davis
v. Perry, No. SA–11–CV–788 (Nov. 23, 2011).4 On direct
appeal, this Court observed that the District Court had
failed to “take guidance from the State’s recently enacted
plan in drafting an interim plan,” and therefore vacated
the District Court’s map. Perry v. Perez, 565 U. S. ___,
___, ___–___ (2012) (per curiam) (slip op., at 4, 8–10).
The District Court, on remand, again used census data
to draw districts so that each included roughly the same
size total population. Texas used this new interim map,
S172, in the 2012 elections, and, in 2013, the Texas Legis-
——————
Law Ann. §83–m(b) (2015 West Cum. Supp.). The Constitutions of
Maine and Nebraska authorize the exclusion of noncitizen immigrants,
Me. Const., Art. IV, pt. 1, §2; Neb. Const., Art. III, §5, but neither
provision is “operational as written,” Brief for United States as Amicus
Curiae 12, n. 3.
4 Various plaintiffs had challenged Texas’ State House, State Senate,
and congressional maps under, inter alia, §2 of the Voting Rights Act of
1965. They sought and received an injunction barring Texas’ use of the
new maps until those maps received §5 preclearance. See Allen v. State
Bd. of Elections, 393 U.S. 544, 561 (1969) (“[A]n individual may bring a
suit for declaratory judgment and injunctive relief, claiming that a
state requirement is covered by §5, but has not been subjected to the
required federal scrutiny.”).
6 EVENWEL v. ABBOTT
Opinion of the Court
lature adopted S172 as the permanent Senate map. See
App. to Brief for Texas Senate Hispanic Caucus et al. as
Amici Curiae 5 (reproducing the current Senate map).
The permanent map’s maximum total-population devia-
tion is 8.04%, safely within the presumptively permissible
10% range. But measured by a voter-population base-
line—eligible voters or registered voters—the map’s max-
imum population deviation exceeds 40%.
Appellants Sue Evenwel and Edward Pfenninger live in
Texas Senate districts (one and four, respectively) with
particularly large eligible- and registered-voter popula-
tions. Contending that basing apportionment on total
population dilutes their votes in relation to voters in other
Senate districts, in violation of the one-person, one-vote
principle of the Equal Protection Clause,5 appellants filed
suit in the U. S. District Court for the Western District of
Texas. They named as defendants the Governor and
Secretary of State of Texas, and sought a permanent
injunction barring use of the existing Senate map in favor
of a map that would equalize the voter population in each
district.
The case was referred to a three-judge District Court for
hearing and decision. See 28 U.S. C. §2284(a); Shapiro v.
McManus, 577 U. S. ___, ___–___ (2015) (slip op., at 5–7).
That court dismissed the complaint for failure to state a
claim on which relief could be granted. Appellants, the
District Court explained, “rel[y] upon a theory never be-
fore accepted by the Supreme Court or any circuit court:
that the metric of apportionment employed by Texas (total
population) results in an unconstitutional apportionment
because it does not achieve equality as measured by Plain-
tiffs’ chosen metric—voter population.” App. to Juris.
——————
5 Apart from objecting to the baseline, appellants do not challenge the
Senate map’s 8.04% total-population deviation. Nor do they challenge
the use of a total-population baseline in congressional districting.
Cite as: 578 U. S. ____ (2016) 7
Opinion of the Court
Statement 9a. Decisions of this Court, the District Court
concluded, permit jurisdictions to use any neutral, nondis-
criminatory population baseline, including total popula-
tion, when drawing state and local legislative districts.
Id., at 13a–14a.6
We noted probable jurisdiction, 575 U. S. ___ (2015), and
now affirm.
II
The parties and the United States advance different
positions in this case. As they did before the District
Court, appellants insist that the Equal Protection Clause
requires jurisdictions to draw state and local legislative
districts with equal voter-eligible populations, thus pro-
tecting “voter equality,” i.e., “the right of eligible voters to
an equal vote.” Brief for Appellants 14.7 To comply with
their proposed rule, appellants suggest, jurisdictions
should design districts based on citizen-voting-age-
population (CVAP) data from the Census Bureau’s Ameri-
can Community Survey (ACS), an annual statistical sample
of the U. S. population. Texas responds that jurisdic-
tions may, consistent with the Equal Protection Clause,
design districts using any population baseline—including
——————
6 As the District Court noted, the Ninth Circuit has likewise rejected
appellants’ theory, i.e., that voter population must be roughly equal-
ized. See Garza v. County of L. A., 918 F.2d 763, 773–776 (CA9 1990).
Also declining to mandate voter-eligible apportionment, the Fourth and
Fifth Circuits have suggested that the choice of apportionment base
may present a nonjusticiable political question. See Chen v. Houston,
206 F.3d 502, 528 (CA5 2000) (“[T]his eminently political question has
been left to the political process.”); Daly v. Hunt, 93 F.3d 1212, 1227
(CA4 1996) (“This is quintessentially a decision that should be made by
the state, not the federal courts, in the inherently political and legisla-
tive process of apportionment.”).
7 In the District Court, appellants suggested that districting bodies
could also comply with the one-person, one-vote rule by equalizing the
registered-voter populations of districts, but appellants have not
repeated that argument before this Court. See Tr. of Oral Arg. 22–23.
8 EVENWEL v. ABBOTT
Opinion of the Court
total population and voter-eligible population—so long as
the choice is rational and not invidiously discriminatory.
Although its use of total-population data from the census
was permissible, Texas therefore argues, it could have
used ACS CVAP data instead. Sharing Texas’ position
that the Equal Protection Clause does not mandate use of
voter-eligible population, the United States urges us not to
address Texas’ separate assertion that the Constitution
allows States to use alternative population baselines,
including voter-eligible population. Equalizing total popu-
lation, the United States maintains, vindicates the princi-
ple of representational equality by “ensur[ing] that the
voters in each district have the power to elect a repre-
sentative who represents the same number of constituents
as all other representatives.” Brief for United States as
Amicus Curiae 5.
In agreement with Texas and the United States, we
reject appellants’ attempt to locate a voter-equality man-
date in the Equal Protection Clause. As history, prece-
dent, and practice demonstrate, it is plainly permissible
for jurisdictions to measure equalization by the total
population of state and local legislative districts.
A
We begin with constitutional history. At the time of the
founding, the Framers confronted a question analogous to
the one at issue here: On what basis should congressional
districts be allocated to States? The Framers’ solution,
now known as the Great Compromise, was to provide each
State the same number of seats in the Senate, and to
allocate House seats based on States’ total populations.
“Representatives and direct Taxes,” they wrote, “shall be
apportioned among the several States which may be in-
cluded within this Union, according to their respective
Numbers.” U. S. Const., Art. I, §2, cl. 3 (emphasis added).
“It is a fundamental principle of the proposed constitu-
Cite as: 578 U. S. ____ (2016) 9
Opinion of the Court
tion,” James Madison explained in the Federalist Papers,
“that as the aggregate number of representatives allotted
to the several states, is to be . . . founded on the aggregate
number of inhabitants; so, the right of choosing this allot-
ted number in each state, is to be exercised by such part of
the inhabitants, as the state itself may designate.” The
Federalist No. 54, p. 284 (G. Carey & J. McClellan eds.
2001). In other words, the basis of representation in the
House was to include all inhabitants—although slaves
were counted as only three-fifths of a person—even though
States remained free to deny many of those inhabitants
the right to participate in the selection of their representa-
tives.8 Endorsing apportionment based on total popula-
tion, Alexander Hamilton declared: “There can be no truer
principle than this—that every individual of the commu-
nity at large has an equal right to the protection of govern-
ment.” 1 Records of the Federal Convention of 1787, p.
473 (M. Farrand ed. 1911).9
——————
8 As the United States observes, the “choice of constitutional language
reflects the historical fact that when the Constitution was drafted and
later amended, the right to vote was not closely correlated with citizen-
ship.” Brief for United States as Amicus Curiae 18. Restrictions on the
franchise left large groups of citizens, including women and many
males who did not own land, unable to cast ballots, yet the Framers
understood that these citizens were nonetheless entitled to representa-
tion in government.
9 JUSTICE ALITO observes that Hamilton stated this principle while
opposing allocation of an equal number of Senate seats to each State.
Post, at 7–8 (opinion concurring in judgment). That context, however,
does not diminish Hamilton’s principled argument for allocating seats
to protect the representational rights of “every individual of the com-
munity at large.” 1 Records of the Federal Convention of 1787, p. 473
(M. Farrand ed. 1911). JUSTICE ALITO goes on to quote James Madison
for the proposition that Hamilton was concerned, simply and only, with
“the outcome of a contest over raw political power.” Post, at 8. Notably,
in the statement JUSTICE ALITO quotes, Madison was not attributing
that motive to Hamilton; instead, according to Madison, Hamilton was
attributing that motive to the advocates of equal representation for
States. Farrand, supra, at 466. One need not gainsay that Hamilton’s
10 EVENWEL v. ABBOTT
Opinion of the Court
When debating what is now the Fourteenth Amend-
ment, Congress reconsidered the proper basis for appor-
tioning House seats. Concerned that Southern States
would not willingly enfranchise freed slaves, and aware
that “a slave’s freedom could swell his state’s population
for purposes of representation in the House by one person,
rather than only three-fifths,” the Framers of the Four-
teenth Amendment considered at length the possibility of
allocating House seats to States on the basis of voter
population. J. Sneed, Footprints on the Rocks of the
Mountain: An Account of the Enactment of the Fourteenth
Amendment 28 (1997). See also id., at 35 (“[T]he appor-
tionment issue consumed more time in the Fourteenth
Amendment debates than did any other topic.”).
In December 1865, Thaddeus Stevens, a leader of the
Radical Republicans, introduced a constitutional amend-
ment that would have allocated House seats to States
“according to their respective legal voters”; in addition, the
proposed amendment mandated that “[a] true census of
the legal voters shall be taken at the same time with the
regular census.” Cong. Globe, 39th Cong., 1st Sess., 10
(1866). Supporters of apportionment based on voter popu-
lation employed the same voter-equality reasoning that
appellants now echo. See, e.g., id., at 380 (remarks of Rep.
Orth) (“[T]he true principle of representation in Congress
is that voters alone should form the basis, and that each
voter should have equal political weight in our Govern-
ment. . . .”); id., at 404 (remarks of Rep. Lawrence) (use of
total population “disregards the fundamental idea of all
just representation, that every voter should be equal in
political power all over the Union”).
——————
backdrop was the political controversies of his day. That reality,
however, has not deterred this Court’s past reliance on his statements
of principle. See, e.g., Printz v. United States, 521 U.S. 898, 910–924
(1997).
Cite as: 578 U. S. ____ (2016) 11
Opinion of the Court
Voter-based apportionment proponents encountered
fierce resistance from proponents of total-population ap-
portionment. Much of the opposition was grounded in the
principle of representational equality. “As an abstract
proposition,” argued Representative James G. Blaine, a
leading critic of allocating House seats based on voter
population, “no one will deny that population is the true
basis of representation; for women, children, and other
non-voting classes may have as vital an interest in the
legislation of the country as those who actually deposit the
ballot.” Id., at 141. See also id., at 358 (remarks of Rep.
Conkling) (arguing that use of a voter-population basis
“would shut out four fifths of the citizens of the country—
women and children, who are citizens, who are taxed, and
who are, and always have been, represented”); id., at 434
(remarks of Rep. Ward) (“[W]hat becomes of that large
class of non-voting tax-payers that are found in every
section? Are they in no matter to be represented? They
certainly should be enumerated in making up the whole
number of those entitled to a representative.”).
The product of these debates was §2 of the Fourteenth
Amendment, which retained total population as the con-
gressional apportionment base. See U. S. Const., Amdt.
14, §2 (“Representatives shall be apportioned among the
several States according to their respective numbers,
counting the whole number of persons in each State, ex-
cluding Indians not taxed.”). Introducing the final version
of the Amendment on the Senate floor, Senator Jacob
Howard explained:
“[The] basis of representation is numbers . . . ; that is,
the whole population except untaxed Indians and per-
sons excluded by the State laws for rebellion or other
crime. . . . The committee adopted numbers as the
most just and satisfactory basis, and this is the prin-
ciple upon which the Constitution itself was originally
12 EVENWEL v. ABBOTT
Opinion of the Court
framed, that the basis of representation should de-
pend upon numbers; and such, I think, after all, is the
safest and most secure principle upon which the Gov-
ernment can rest. Numbers, not voters; numbers, not
property; this is the theory of the Constitution.”
Cong. Globe, 39th Cong., 1st Sess., 2766–2767 (1866).
Appellants ask us to find in the Fourteenth Amend-
ment’s Equal Protection Clause a rule inconsistent with
this “theory of the Constitution.” But, as the Court recog-
nized in Wesberry, this theory underlies not just the method
of allocating House seats to States; it applies as well to
the method of apportioning legislative seats within States.
“The debates at the [Constitutional] Convention,” the
Court explained, “make at least one fact abundantly clear:
that when the delegates agreed that the House should
represent ‘people,’ they intended that in allocating Con-
gressmen the number assigned to each state should be
determined solely by the number of inhabitants.” 376
U.S., at 13. “While it may not be possible to draw con-
gressional districts with mathematical precision,” the
Court acknowledged, “that is no excuse for ignoring our
Constitution’s plain objective of making equal representa-
tion for equal numbers of people the fundamental goal
for the House of Representatives.” Id., at 18 (emphasis
added). It cannot be that the Fourteenth Amendment calls
for the apportionment of congressional districts based on
total population, but simultaneously prohibits States from
apportioning their own legislative districts on the same
basis.
Cordoning off the constitutional history of congressional
districting, appellants stress two points.10 First, they
——————
10 JUSTICE ALITO adds a third, claiming “the allocation of congres-
sional representation sheds little light” on the meaning of the one-person,
one-vote rule “because that allocation plainly violates one person, one
vote.” Post, at 4. For this proposition, JUSTICE ALITO notes the consti-
Cite as: 578 U. S. ____ (2016) 13
Opinion of the Court
draw a distinction between allocating seats to States, and
apportioning seats within States. The Framers selected
total population for the former, appellants and their amici
argue, because of federalism concerns inapposite to intra-
state districting. These concerns included the perceived
risk that a voter-population base might encourage States
to expand the franchise unwisely, and the hope that a
total-population base might counter States’ incentive to
undercount their populations, thereby reducing their
share of direct taxes. Wesberry, however, rejected the
distinction appellants now press. See supra, at 12. Even
without the weight of Wesberry, we would find appellants’
distinction unconvincing. One can accept that federal-
ism—or, as JUSTICE ALITO emphasizes, partisan and
regional political advantage, see post, at 6–13—figured in
the Framers’ selection of total population as the basis for
allocating congressional seats. Even so, it remains beyond
doubt that the principle of representational equality fig-
ured prominently in the decision to count people, whether
or not they qualify as voters.11
——————
tutional guarantee of two Senate seats and at least one House seat to
each State, regardless of its population. But these guarantees bear no
kinship to the separate question that dominated the Fourteenth
Amendment’s ratification debates: After each State has received its
guaranteed House seat, on what basis should additional seats be
allocated?
11 JUSTICE ALITO asserts that we have taken the statements of the
Fourteenth Amendment’s Framers “out of context.” Post, at 9. See also
post, at 12 (“[C]laims about representational equality were invoked, if
at all, only in service of the real goal: preventing southern States from
acquiring too much power in the national government.”). Like Alexan-
der Hamilton, see supra, at 9, n. 9, the Fourteenth Amendment’s
Framers doubtless made arguments rooted in practical political reali-
ties as well as in principle. That politics played a part, however, does
not warrant rejecting principled argument. In any event, motivations
aside, the Framers’ ultimate choice of total population rather than
voter population is surely relevant to whether, as appellants now
argue, the Equal Protection Clause mandates use of voter population
14 EVENWEL v. ABBOTT
Opinion of the Court
Second, appellants and JUSTICE ALITO urge, see post, at
5–6, the Court has typically refused to analogize to fea-
tures of the federal electoral system—here, the constitu-
tional scheme governing congressional apportionment—
when considering challenges to state and local election
laws. True, in Reynolds, the Court rejected Alabama’s
argument that it had permissibly modeled its State Senate
apportionment scheme—one Senator for each county—on
the United States Senate. “[T]he federal analogy,” the
Court explained, “[is] inapposite and irrelevant to state
legislative districting schemes” because “[t]he system of
representation in the two Houses of the Federal Congress”
arose “from unique historical circumstances.” 377 U.S., at
573–574. Likewise, in Gray v. Sanders, 372 U.S. 368,
371–372, 378 (1963), Georgia unsuccessfully attempted to
defend, by analogy to the electoral college, its scheme of
assigning a certain number of “units” to the winner of each
county in statewide elections.
Reynolds and Gray, however, involved features of the
federal electoral system that contravene the principles of
both voter and representational equality to favor interests
that have no relevance outside the federal context. Senate
seats were allocated to States on an equal basis to respect
state sovereignty and increase the odds that the smaller
States would ratify the Constitution. See Wesberry, 376
U.S., at 9–13 (describing the history of the Great Com-
promise). See also Reynolds, 377 U.S., at 575 (“Political
subdivisions of States—counties, cities, or whatever—
never were and never have been considered as sovereign
entities. . . . The relationship of the States to the Federal
Government could hardly be less analogous.”). “The [Elec-
toral] College was created to permit the most knowledge-
able members of the community to choose the executive of a
nation whose continental dimensions were thought to
——————
rather than total population.
Cite as: 578 U. S. ____ (2016) 15
Opinion of the Court
preclude an informed choice by the citizenry at large.”
Williams v. Rhodes, 393 U.S. 23, 43–44 (1968) (Harlan, J.,
concurring in result). See also Gray, 372 U.S., at 378
(“The inclusion of the electoral college in the Constitution,
as the result of specific historical concerns, validated the
collegiate principle despite its inherent numerical inequal-
ity.” (footnote omitted)). By contrast, as earlier developed,
the constitutional scheme for congressional apportion-
ment rests in part on the same representational concerns
that exist regarding state and local legislative districting.
The Framers’ answer to the apportionment question in
the congressional context therefore undermines appel-
lants’ contention that districts must be based on voter
population.
B
Consistent with constitutional history, this Court’s past
decisions reinforce the conclusion that States and locali-
ties may comply with the one-person, one-vote principle by
designing districts with equal total populations. Quoting
language from those decisions that, in appellants’ view,
supports the principle of equal voting power—and empha-
sizing the phrase “one-person, one-vote”—appellants
contend that the Court had in mind, and constantly
meant, that States should equalize the voter-eligible
population of districts. See Reynolds, 377 U.S., at 568
(“[A]n individual’s right to vote for State legislators is
unconstitutionally impaired when its weight is in a sub-
stantial fashion diluted when compared with votes of
citizens living on other parts of the State.”); Gray, 372
U.S., at 379–380 (“The concept of ‘we the people’ under
the Constitution visualizes no preferred class of voters but
equality among those who meet the basic qualifications.”).
See also Hadley v. Junior College Dist. of Metropolitan
Kansas City, 397 U.S. 50, 56 (1970) (“[W]hen members of
an elected body are chosen from separate districts, each
16 EVENWEL v. ABBOTT
Opinion of the Court
district must be established on a basis that will insure, as
far as is practicable, that equal numbers of voters can vote
for proportionally equal numbers of officials.”). Appel-
lants, however, extract far too much from selectively cho-
sen language and the “one-person, one-vote” slogan.
For every sentence appellants quote from the Court’s
opinions, one could respond with a line casting the one-
person, one-vote guarantee in terms of equality of repre-
sentation, not voter equality. In Reynolds, for instance,
the Court described “the fundamental principle of repre-
sentative government in this country” as “one of equal
representation for equal numbers of people.” 377 U.S., at
560–561. See also Davis v. Bandemer, 478 U.S. 109, 123
(1986) (“[I]n formulating the one person, one vote formula,
the Court characterized the question posed by election
districts of disparate size as an issue of fair representa-
tion.”); Reynolds, 377 U.S., at 563 (rejecting state district-
ing schemes that “give the same number of representa-
tives to unequal numbers of constituents”). And the Court
has suggested, repeatedly, that districting based on total
population serves both the State’s interest in preventing
vote dilution and its interest in ensuring equality of repre-
sentation. See Board of Estimate of City of New York v.
Morris, 489 U.S. 688, 693–694 (1989) (“If districts of
widely unequal population elect an equal number of repre-
sentatives, the voting power of each citizen in the larger
constituencies is debased and the citizens in those districts
have a smaller share of representation than do those in
the smaller districts.”). See also Kirkpatrick, 394 U.S., at
531 (recognizing in a congressional-districting case that
“[e]qual representation for equal numbers of people is a
principle designed to prevent debasement of voting power
and diminution of access to elected representatives”).12
——————
12 Appellants also observe that standing in one-person, one-vote cases
has rested on plaintiffs’ status as voters whose votes were diluted. But
Cite as: 578 U. S. ____ (2016) 17
Opinion of the Court
Moreover, from Reynolds on, the Court has consistently
looked to total-population figures when evaluating whether
districting maps violate the Equal Protection Clause by
deviating impermissibly from perfect population equality.
See Brief for Appellees 29–31 (collecting cases brought
under the Equal Protection Clause). See also id., at 31,
n. 9 (collecting congressional-districting cases). Appel-
lants point to no instance in which the Court has deter-
mined the permissibility of deviation based on eligible- or
registered-voter data. It would hardly make sense for the
Court to have mandated voter equality sub silentio and
then used a total-population baseline to evaluate compli-
ance with that rule. More likely, we think, the Court has
always assumed the permissibility of drawing districts to
equalize total population.
“In the 1960s,” appellants counter, “the distribution of
the voting population generally did not deviate from the
distribution of total population to the degree necessary to
raise this issue.” Brief for Appellants 27. To support this
assertion, appellants cite only a District Court decision,
which found no significant deviation in the distribution of
voter and total population in “densely populated areas of
New York State.” WMCA, Inc. v. Lomenzo, 238 F. Supp.
916, 925 (SDNY), aff ’d, 382 U.S. 4 (1965) ( per curiam).
Had this Court assumed such equivalence on a national
scale, it likely would have said as much.13 Instead, in
Gaffney v. Cummings, 412 U.S. 735, 746–747 (1973), the
Court acknowledged that voters may be distributed un-
——————
the Court has not considered the standing of nonvoters to challenge a
map malapportioned on a total-population basis. This issue, moreover,
is unlikely ever to arise given the ease of finding voters willing to serve
as plaintiffs in malapportionment cases.
13 In contrast to the insubstantial evidence marshaled by appellants,
the United States cites several studies documenting the uneven distri-
bution of immigrants throughout the country during the 1960’s. See
Brief for United States as Amicus Curiae 16.
18 EVENWEL v. ABBOTT
Opinion of the Court
evenly within jurisdictions. “[I]f it is the weight of a per-
son’s vote that matters,” the Court observed, then “total
population—even if stable and accurately taken—may not
actually reflect that body of voters whose votes must be
counted and weighed for the purposes of reapportionment,
because ‘census persons’ are not voters.” Id., at 746.
Nonetheless, the Court in Gaffney recognized that the one-
person, one-vote rule is designed to facilitate “[f ]air and
effective representation,” id., at 748, and evaluated com-
pliance with the rule based on total population alone, id.,
at 750.
C
What constitutional history and our prior decisions
strongly suggest, settled practice confirms. Adopting
voter-eligible apportionment as constitutional command
would upset a well-functioning approach to districting that
all 50 States and countless local jurisdictions have fol-
lowed for decades, even centuries. Appellants have shown
no reason for the Court to disturb this longstanding use of
total population. See Walz v. Tax Comm’n of City of New
York, 397 U.S. 664, 678 (1970) (“unbroken practice” fol-
lowed “openly and by affirmative state action, not covertly
or by state inaction, is not something to be lightly cast
aside”). See also Burson v. Freeman, 504 U.S. 191, 203–
206 (1992) (plurality opinion) (upholding a law limiting
campaigning in areas around polling places in part be-
cause all 50 States maintain such laws, so there is a
“widespread and time-tested consensus” that legislation of
this order serves important state interests). As the Fram-
ers of the Constitution and the Fourteenth Amendment
comprehended, representatives serve all residents, not
just those eligible or registered to vote. See supra, at 8–
12. Nonvoters have an important stake in many policy
debates—children, their parents, even their grandparents,
for example, have a stake in a strong public-education
Cite as: 578 U. S. ____ (2016) 19
Opinion of the Court
system—and in receiving constituent services, such as
help navigating public-benefits bureaucracies. By ensur-
ing that each representative is subject to requests and
suggestions from the same number of constituents, total-
population apportionment promotes equitable and effec-
tive representation. See McCormick v. United States, 500
U.S. 257, 272 (1991) (“Serving constituents and support-
ing legislation that will benefit the district and individ-
uals and groups therein is the everyday business of a
legislator.”).14
In sum, the rule appellants urge has no mooring in the
Equal Protection Clause. The Texas Senate map, we
therefore conclude, complies with the requirements of the
one-person, one-vote principle.15 Because history, prece-
dent, and practice suffice to reveal the infirmity of appel-
lants’ claims, we need not and do not resolve whether, as
Texas now argues, States may draw districts to equalize
voter-eligible population rather than total population.
* * *
For the reasons stated, the judgment of the United
States District Court for the Western District of Texas is
Affirmed.
——————
14 Appellants point out that constituents have no constitutional right
to equal access to their elected representatives. But a State certainly
has an interest in taking reasonable, nondiscriminatory steps to facili-
tate access for all its residents.
15 Insofar as appellants suggest that Texas could have roughly equal-
ized both total population and eligible-voter population, this Court has
never required jurisdictions to use multiple population baselines. In
any event, appellants have never presented a map that manages to
equalize both measures, perhaps because such a map does not exist, or
because such a map would necessarily ignore other traditional redis-
tricting principles, including maintaining communities of interest and
respecting municipal boundaries.
Cite as: 578 U. S. ____ (2016) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–940
_________________
SUE EVENWEL, ET AL., APPELLANTS v. GREG
ABBOTT, GOVERNOR OF TEXAS, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF TEXAS
[April 4, 2016]
JUSTICE THOMAS, concurring in the judgment.
This case concerns whether Texas violated the Equal
Protection Clause—as interpreted by the Court’s one-
person, one-vote cases—by creating legislative districts
that contain approximately equal total population but
vary widely in the number of eligible voters in each dis­
trict. I agree with the majority that our precedents do not
require a State to equalize the total number of voters in
each district. States may opt to equalize total population.
I therefore concur in the majority’s judgment that appel­
lants’ challenge fails.
I write separately because this Court has never provided
a sound basis for the one-person, one-vote principle. For
50 years, the Court has struggled to define what right that
principle protects. Many of our precedents suggest that it
protects the right of eligible voters to cast votes that re­
ceive equal weight. Despite that frequent explanation, our
precedents often conclude that the Equal Protection
Clause is satisfied when all individuals within a district—
voters or not—have an equal share of representation. The
majority today concedes that our cases have not produced
a clear answer on this point. See ante, at 16.
In my view, the majority has failed to provide a sound
basis for the one-person, one-vote principle because no
such basis exists. The Constitution does not prescribe any
2 EVENWEL v. ABBOTT
THOMAS, J., concurring in judgment
one basis for apportionment within States. It instead
leaves States significant leeway in apportioning their own
districts to equalize total population, to equalize eligible
voters, or to promote any other principle consistent with a
republican form of government. The majority should
recognize the futility of choosing only one of these options.
The Constitution leaves the choice to the people alone—
not to this Court.
I
In the 1960’s, this Court decided that the Equal Protec­
tion Clause requires States to draw legislative districts
based on a “one-person, one-vote” rule.* But this Court’s
decisions have never coalesced around a single theory
about what States must equalize.
The Equal Protection Clause prohibits a State from
“deny[ing] to any person within its jurisdiction the equal
protection of the laws.” Amdt. 14, §1. For nearly a century
after its ratification, this Court interpreted the Clause
as having no application to the politically charged issue of
how States should apportion their populations in political
districts. See, e.g., Colegrove v. Green, 328 U.S. 549, 556
(1946) (plurality opinion). Instead, the Court left the
drawing of States’ political boundaries to the States, so
long as a State did not deprive people of the right to vote
for reasons prohibited by the Constitution. See id., at 552,
556; Gomillion v. Lightfoot, 364 U.S. 339, 341, 347–348
(1960) (finding justiciable a claim that a city boundary
——————
* The Court’s opinions have used “one person, one vote” and “one
man, one vote” interchangeably. Compare, e.g., Gray v. Sanders, 372
U.S. 368, 381 (1963) (“one person, one vote”), with Hadley v. Junior
College Dist. of Metropolitan Kansas City, 397 U.S. 50, 51 (1970) (“one
man, one vote” (internal quotation marks omitted)). Gray used “one
person, one vote” after noting the expansion of political equality over
our history—including adoption of the Nineteenth Amendment, which
guaranteed women the right to vote. 372 U.S., at 381.
Cite as: 578 U. S. ____ (2016) 3
THOMAS, J., concurring in judgment
was redrawn from a square shape to “a strangely irregular
twenty-eight-sided figure” to remove nearly all black
voters from the city). This meant that a State’s refusal
to allocate voters within districts based on population
changes was a matter for States—not federal courts—to
decide. And these cases were part of a larger jurisprudence
holding that the question whether a state government
had a “proper” republican form rested with Congress.
Pacific States Telephone & Telegraph Co. v. Oregon, 223
U.S. 118, 149–150 (1912).
This Court changed course in Baker v. Carr, 369 U.S.
186 (1962), by locating in the Equal Protection Clause a
right of citizens not to have a “ ‘debasement of their
votes.’ ” Id., at 194, and n. 15, 200. Expanding on that
decision, this Court later held that “the Equal Protection
Clause requires that the seats in both houses of a bicam­
eral state legislature must be apportioned on a population
basis.” Reynolds v. Sims, 377 U.S. 533, 568 (1964). The
Court created an analogous requirement for congressional
redistricting rooted in Article I, §2’s requirement that
“Representatives be chosen ‘by the People of the several
States.’ ” Wesberry v. Sanders, 376 U.S. 1, 7–9 (1964).
The rules established by these cases have come to be
known as “one person, one vote.”
Since Baker empowered the federal courts to resolve
redistricting disputes, this Court has struggled to explain
whether the one-person, one-vote principle ensures equal-
ity among eligible voters or instead protects some broader
right of every citizen to equal representation. The Court’s
lack of clarity on this point, in turn, has left unclear
whether States must equalize the number of eligible vot­
ers across districts or only total population.
In a number of cases, this Court has said that States
must protect the right of eligible voters to have their votes
receive equal weight. On this view, there is only one way
for States to comply with the one-person, one-vote princi­
4 EVENWEL v. ABBOTT
THOMAS, J., concurring in judgment
ple: they must draw districts that contain a substantially
equal number of eligible voters per district.
The Court’s seminal decision in Baker exemplifies this
view. Decided in 1962, Baker involved the failure of the
Tennessee Legislature to reapportion its districts for 60
years. 369 U.S., at 191. Since Tennessee’s last appor­
tionment, the State’s population had grown by about 1.5
million residents, from about 2 to more than 3.5 million.
And the number of voters in each district had changed
significantly over time, producing widely varying voting
populations in each district. Id., at 192. Under these
facts, the Court held that reapportionment claims were
justiciable because the plaintiffs—who all claimed to be
eligible voters—had alleged a “debasement of their votes.”
Id., at 194, and n. 15, 204 (internal quotation marks
omitted).
The Court similarly emphasized equal treatment of
eligible voters in Gray v. Sanders, 372 U.S. 368 (1963).
That case involved a challenge to Georgia’s “county unit”
system of voting. Id., at 370. This system, used by the
State’s Democratic Party to nominate candidates in its
primary, gave each county two votes for every representa­
tive that the county had in the lower House of its General
Assembly. Voting was then done by county, with the
winner in each county taking all of that county’s votes.
The Democratic Party nominee was the candidate who had
won the most county-unit votes, not the person who had
won the most individual votes. Id., at 370–371. The effect
of this system was to give heavier weight to rural ballots
than to urban ones. The Court held that the system vio­
lated the one-person, one-vote principle. Id., at 379–381,
and n. 12. In so holding, the Court emphasized that the
right at issue belongs to “all qualified voters” and is the
right to have one’s vote “counted once” and protected
against dilution. Id., at 380.
In applying the one-person, one-vote principle to state
Cite as: 578 U. S. ____ (2016) 5
THOMAS, J., concurring in judgment
legislative districts, the Court has also emphasized vote
dilution, which also supports the notion that the one-
person, one-vote principle ensures equality among eligible
voters. It did so most notably in Reynolds. In that case,
Alabama had failed to reapportion its state legislature for
decades, resulting in population-variance ratios of up to
about 41 to 1 in the State Senate and up to about 16 to 1
in the House. 377 U.S., at 545. In explaining why Ala­
bama’s failure to reapportion violated the Equal Protec­
tion Clause, this Court stated that “an individual’s right to
vote for state legislators is unconstitutionally impaired
when its weight is in a substantial fashion diluted when
compared with votes of citizens living in other parts of the
State.” Id., at 568.
This Court’s post-Reynolds decisions likewise define the
one-person, one-vote principle in terms of eligible voters,
and thus imply that States should be allocating districts
with eligible voters in mind. The Court suggested as
much in Hadley v. Junior College Dist. of Metropolitan
Kansas City, 397 U.S. 50 (1970). That case involved
Missouri’s system permitting separate school districts to
establish a joint junior college district. Six trustees were
to oversee the joint district, and they were apportioned on
the basis of the relative numbers of school-aged children in
each subsidiary district. Id., at 51. The Court held that
this plan violated the Equal Protection Clause because
“the trustees of this junior college district [must] be appor­
tioned in a manner that does not deprive any voter of his
right to have his own vote given as much weight, as far as
is practicable, as that of any other voter in the junior
college district.” Id., at 52. In so holding, the Court em­
phasized that Reynolds had “called attention to prior cases
indicating that a qualified voter has a constitutional right
to vote in elections without having his vote wrongfully
denied, debased, or diluted.” Hadley, 397 U.S., at 52; see
id., at 52–53.
6 EVENWEL v. ABBOTT
THOMAS, J., concurring in judgment
In contrast to this oft-stated aspiration of giving equal
treatment to eligible voters, the Court has also expressed
a different understanding of the one-person, one-vote
principle. In several cases, the Court has suggested that
one-person, one-vote protects the interests of all individu­
als in a district, whether they are eligible voters or not. In
Reynolds, for example, the Court said that “the fundamen­
tal principle of representative government in this country
is one of equal representation for equal numbers of peo­
ple.” 377 U.S., at 560–561; see also ante, at 16 (collecting
cases). Under this view, States cannot comply with the
Equal Protection Clause by equalizing the number of
eligible voters in each district. They must instead equal­
ize the total population per district.
In line with this view, the Court has generally focused
on total population, not the total number of voters, when
determining a State’s compliance with the one-person,
one-vote requirement. In Gaffney v. Cummings, 412 U.S.
735, 750–751 (1973), for example, the Court upheld state
legislative districts that had a maximum deviation of
7.83% when measured on a total-population basis. In
contrast, in Chapman v. Meier, 420 U.S. 1, 21–22, 26–27
(1975), the Court struck down a court-ordered reappor­
tionment that had a total deviation of 20.14% based on
total population. This plan, in the Court’s view, failed to
“achieve the goal of population equality with little more
than de minimis variation.” Id., at 27.
This lack of clarity in our redistricting cases has left
States with little guidance about how their political insti­
tutions must be structured. Although this Court has
required that state legislative districts “be apportioned on
a population basis,” Reynolds, supra, at 568, it has yet to
tell the States whether they are limited in choosing “the
relevant population that [they] must equally distribute.”
Chen v. Houston, 532 U.S. 1046, 1047 (2001) (THOMAS, J.,
dissenting from denial of certiorari) (internal quotation
Cite as: 578 U. S. ____ (2016) 7
THOMAS, J., concurring in judgment
marks omitted). Because the Court has not provided a
firm account of what States must do when districting,
States are left to guess how much flexibility (if any) they
have to use different methods of apportionment.
II
This inconsistency (if not opacity) is not merely a conse­
quence of the Court’s equivocal statements on one person,
one vote. The problem is more fundamental. There is
simply no way to make a principled choice between inter­
preting one person, one vote as protecting eligible voters
or as protecting total inhabitants within a State. That is
because, though those theories are noble, the Constitution
does not make either of them the exclusive means of ap­
portionment for state and local representatives. In guar­
anteeing to the States a “Republican Form of Govern­
ment,” Art. IV, §4, the Constitution did not resolve
whether the ultimate basis of representation is the right of
citizens to cast an equal ballot or the right of all inhabit­
ants to have equal representation. The Constitution
instead reserves these matters to the people. The major-
ity’s attempt today to divine a single “ ‘theory of the Consti-
tution’ ”—apportionment based on representation, ante, at
12 (quoting Cong. Globe, 39th Cong., 1st Sess., 2766–2767
(1866))—rests on a flawed reading of history and wrongly
picks one side of a debate that the Framers did not resolve
in the Constitution.
A
The Constitution lacks a single, comprehensive theory of
representation. The Framers understood the tension
between majority rule and protecting fundamental rights
from majorities. This understanding led to a “mixed”
constitutional structure that did not embrace any single
theory of representation but instead struck a compromise
between those who sought an equitable system of repre­
8 EVENWEL v. ABBOTT
THOMAS, J., concurring in judgment
sentation and those who were concerned that the majority
would abuse plenary control over public policy. As Madi­
son wrote, “A dependence on the people is no doubt the
primary controul on the government; but experience has
taught mankind the necessity of auxiliary precautions.”
The Federalist No. 51, p. 349 (J. Cooke ed. 1961). This
was the theory of the Constitution. The Framers therefore
made difficult compromises on the apportionment of fed­
eral representation, and they did not prescribe any one
theory of how States had to divide their legislatures.
1
Because, in the view of the Framers, ultimate political
power derives from citizens who were “created equal,” The
Declaration of Independence ¶2, beliefs in equality of
representation—and by extension, majority rule—
influenced the constitutional structure. In the years
between the Revolution and the framing, the Framers
experimented with different ways of securing the political
system against improper influence. Of all the “electoral
safeguards for the representational system,” the most
critical was “equality of representation.” G. Wood, The
Creation of the American Republic 1776–1787, p. 170
(1998) (Wood).
The Framers’ preference for apportionment by represen­
tation (and majority rule) was driven partially by the
belief that all citizens were inherently equal. In a system
where citizens were equal, a legislature should have
“equal representation” so that “equal interests among the
people should have equal interests in [the assembly].”
Thoughts on Government, in 4 Works of John Adams 195
(C. Adams ed. 1851). The British Parliament fell short of
this goal. In addition to having hereditary nobility, more
than half of the members of the democratic House of
Commons were elected from sparsely populated districts—
so-called “rotten boroughs.” Wood 171; Baker, 369 U. S.,
Cite as: 578 U. S. ____ (2016) 9
THOMAS, J., concurring in judgment
at 302–303 (Frankfurter, J., dissenting).
The Framers’ preference for majority rule also was a
reaction to the shortcomings of the Articles of Confedera­
tion. Under the Articles, each State could cast one vote
regardless of population and Congress could act only with
the assent of nine States. Articles of Confederation, Art.
IX, cl. 6; id., Art. X; id., Art. XI. This system proved unde­
sirable because a few small States had the ability to para­
lyze the National Legislature. See The Federalist No. 22,
at 140–141 (Hamilton).
Consequently, when the topic of dividing representation
came up at the Constitutional Convention, some Framers
advocated proportional representation throughout the
National Legislature. 1 Records of the Federal Conven­
tion of 1787, pp. 471–473 (M. Farrand ed. 1911). Alexan­
der Hamilton voiced concerns about the unfairness of
allowing a minority to rule over a majority. In explaining
at the Convention why he opposed giving States an equal
vote in the National Legislature, Hamilton asked rhetori­
cally, “If . . . three states contain a majority of the inhabit­
ants of America, ought they to be governed by a minority?”
Id., at 473; see also The Federalist No. 22, at 141 (Hamil­
ton) (objecting to supermajoritarian voting requirements
because they allow an entrenched minority to “controul
the opinion of a majority respecting the best mode of
conducting [the public business]”). James Madison, too,
opined that the general Government needed a direct man­
date from the people. If federal “power [were] not imme­
diately derived from the people, in proportion to their
numbers,” according to Madison, the Federal Government
would be as weak as Congress under the Articles of Con­
federation. 1 Records of the Federal Convention of 1787,
at 472.
In many ways, the Constitution reflects this preference
for majority rule. To pass Congress, ordinary legislation
requires a simple majority of present members to vote in
10 EVENWEL v. ABBOTT
THOMAS, J., concurring in judgment
favor. And some features of the apportionment for the
House of Representatives reflected the idea that States
should wield political power in approximate proportion to
their number of inhabitants. Ante, at 8–12. Thus, “equal
representation for equal numbers of people,” ante, at 12
(internal quotation marks and emphasis omitted), features
prominently in how representatives are apportioned
among the States. These features of the Constitution
reflect the preference of some members of the found-
ing generation for equality of representation. But, as
explained below, this is not the single “theory of the
Constitution.”
2
The Framers also understood that unchecked majorities
could lead to tyranny of the majority. As a result, many
viewed antidemocratic checks as indispensable to republi­
can government. And included among the antidemocratic
checks were legislatures that deviated from perfect equality
of representation.
The Framers believed that a proper government pro­
moted the common good. They conceived this good as
objective and not inherently coextensive with majoritarian
preferences. See, e.g., The Federalist No. 1, at 4 (Hamil­
ton) (defining the common good or “public good” as the
“true interests” of the community); id., No. 10, at 57 (Mad­
ison) (“the permanent and aggregate interests of the com­
munity”). For government to promote the common good, it
had to do more than simply obey the will of the majority.
See, e.g., ibid. (discussing majoritarian factions). Gov­
ernment must also protect fundamental rights. See The
Declaration of Independence ¶2; 1 W. Blackstone, Com­
mentaries *124 (“[T]he principal aim of society is to pro­
tect individuals in the enjoyment of those absolute rights,
which are vested in them by the immutable laws of
nature”).
Cite as: 578 U. S. ____ (2016) 11
THOMAS, J., concurring in judgment
Of particular concern for the Framers was the majority
of people violating the property rights of the minority.
Madison observed that “the most common and durable
source of factions, has been the various and unequal dis­
tribution of property.” The Federalist No. 10, at 59. A
poignant example occurred in Massachusetts. In what
became known as Shays’ Rebellion, armed debtors at­
tempted to block legal actions by creditors to recover
debts. Although that rebellion was ultimately put down,
debtors sought relief from state legislatures “under the
auspices of Constitutional forms.” Letter from James
Madison to Thomas Jefferson (Apr. 23, 1787), in 11 The
Papers of Thomas Jefferson 307 (J. Boyd ed. 1955); see
Wood 412–413. With no structural political checks on
democratic lawmaking, creditors found their rights jeop­
ardized by state laws relieving debtors of their obligation
to pay and authorizing forms of payment that devalued
the contracts. McConnell, Contract Rights and Property
Rights: A Case Study in the Relationship Between Indi­
vidual Liberties and Constitutional Structures, 76 Cal.
L. Rev. 267, 280–281 (1988); see also Fletcher v. Peck, 6
Cranch 87, 137–138 (1810) (Marshall, C. J.) (explaining
that the Contract Clause came from the Framers’ desire to
“shield themselves and their property from the effects
of those sudden and strong passions to which men are
exposed”).
Because of the Framers’ concerns about placing un­
checked power in political majorities, the Constitution’s
majoritarian provisions were only part of a complex repub­
lican structure. The Framers also placed several anti-
democratic provisions in the Constitution. The original
Constitution permitted only the direct election of
representatives. Art. I, §2, cl. 1. Senators and the Presi­
dent were selected indirectly. See Art. I, §3, cl. 1; Art. II,
§1, cls. 2–3. And the “Great Compromise” guaranteed
large and small States voting equality in the Senate. By
12 EVENWEL v. ABBOTT
THOMAS, J., concurring in judgment
malapportioning the Senate, the Framers prevented large
States from outvoting small States to adopt policies that
would advance the large States’ interests at the expense
of the small States. See The Federalist No. 62, at 417
(Madison).
These countermajoritarian measures reflect the Fram­
ers’ aspirations of promoting competing goals. Rejecting a
hereditary class system, they thought political power
resided with the people. At the same time, they sought to
check majority rule to promote the common good and
mitigate threats to fundamental rights.
B
As the Framers understood, designing a government to
fulfill the conflicting tasks of respecting the fundamental
equality of persons while promoting the common good
requires making incommensurable tradeoffs. For this
reason, they did not attempt to restrict the States to one
form of government.
Instead, the Constitution broadly required that the
States maintain a “Republican Form of Government.” Art.
IV, §4. But the Framers otherwise left it to States to
make tradeoffs and reconcile the competing goals.
Republican governments promote the common good by
placing power in the hands of the people, while curtailing
the majority’s ability to invade the minority’s fundamental
rights. The Framers recognized that there is no universal
formula for accomplishing these goals. At the framing,
many state legislatures were bicameral, often reflecting
multiple theories of representation. Only “[s]ix of the
original thirteen states based representation in both
houses of their state legislatures on population.” Hayden,
The False Promise of One Person, One Vote, 102 Mich. L.
Rev. 213, 218 (2003). In most States, it was common to base
representation, at least in part, on the State’s political
subdivisions, even if those subdivisions varied heavily in
Cite as: 578 U. S. ____ (2016) 13
THOMAS, J., concurring in judgment
their populations. Wood 171; Baker, 369 U.S., at 307–308
(Frankfurter, J., dissenting).
Reflecting this history, the Constitution continued to
afford States significant leeway in structuring their “Re­
publican” governments. At the framing, “republican”
referred to “[p]lacing the government in the people,” and a
“republick” was a “state in which the power is lodged in
more than one.” S. Johnson, A Dictionary of the English
Language (7th ed. 1785); see also The Federalist No. 39, at
251 (Madison) (“[W]e may define a republic to be, or at
least may bestow that name on, a government which
derives all its powers directly or indirectly from the great
body of the people; and is administered by persons holding
their offices during pleasure, for a limited period, or dur­
ing good behaviour”). By requiring the States to have
republican governments, the Constitution prohibited them
from having monarchies and aristocracies. See id., No. 43,
at 291. Some would argue that the Constitution also
prohibited States from adopting direct democracies. Com­
pare Wood 222–226 (“For most constitution-makers in
1776, republicanism was not equated with democracy”)
with A. Amar, America’s Constitution: A Biography 276–
281 (2005) (arguing that the provision prohibited monar­
chies and aristocracies but not direct democracy); see also
The Federalist No. 10, at 62 (Madison) (distinguishing a
“democracy” and a “republic”); id., No. 14, at 83–84 (same).
Beyond that, however, the Constitution left matters
open for the people of the States to decide. The Constitu­
tion says nothing about what type of republican govern­
ment the States must follow. When the Framers wanted
to deny powers to state governments, they did so explicitly.
See, e.g., Art. I, §10, cl. 1 (“No State shall . . . pass any
Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts”).
None of the Reconstruction Amendments changed the
original understanding of republican government. Those
14 EVENWEL v. ABBOTT
THOMAS, J., concurring in judgment
Amendments brought blacks within the existing American
political community. The Fourteenth Amendment pres­
sured States to adopt universal male suffrage by reducing
a noncomplying State’s representation in Congress. Amdt.
14, §2. And the Fifteenth Amendment prohibited restrict­
ing the right of suffrage based on race. Amdt. 15, §1.
That is as far as those Amendments went. As Justice
Harlan explained in Reynolds, neither Amendment pro­
vides a theory of how much “weight” a vote must receive,
nor do they require a State to apportion both Houses of
their legislature solely on a population basis. See 377
U.S., at 595–608 (dissenting opinion). And JUSTICE ALITO
quite convincingly demonstrates why the majority errs by
reading a theory of equal representation into the appor­
tionment provision in §2 of the Fourteenth Amendment.
See post, at 8–13 (opinion concurring in judgment).
C
The Court’s attempt to impose its political theory upon
the States has produced a morass of problems. These
problems are antithetical to the values that the Framers
embraced in the Constitution. These problems confirm
that the Court has been wrong to entangle itself with the
political process.
First, in embracing one person, one vote, the Court has
arrogated to the Judiciary important value judgments that
the Constitution reserves to the people. In Reynolds, for
example, the Court proclaimed that “[l]egislators repre­
sent people, not trees or acres”; that “[l]egislators are
elected by voters, not farms or cities or economic inter­
ests”; and that, accordingly, electoral districts must have
roughly equal population. 377 U.S., at 562–563. As I
have explained, the Constitution permits, but does not
impose, this view. Beyond that, Reynolds’ assertions are
driven by the belief that there is a single, correct answer
to the question of how much voting strength an individual
Cite as: 578 U. S. ____ (2016) 15
THOMAS, J., concurring in judgment
citizen should have. These assertions overlook that, to
control factions that would legislate against the common
good, individual voting strength must sometimes yield to
countermajoritarian checks. And this principle has no less
force within States than it has for the federal system. See
The Federalist No. 10, at 63–65 (Madison) (recognizing
that smaller republics, such as the individual States, are
more prone to capture by special interests). Instead of
large States versus small States, those interests may pit
urban areas versus rural, manufacturing versus agricul­
ture, or those with property versus those without. Cf.
Reynolds, supra, at 622–623 (Harlan, J., dissenting).
There is no single method of reconciling these competing
interests. And it is not the role of this Court to calibrate
democracy in the vain search for an optimum solution.
The Government argues that apportioning legislators by
any metric other than total population “risks rendering
residents of this country who are ineligible, unwilling, or
unable to vote as invisible or irrelevant to our system of
representative democracy.” Brief for United States as
Amicus Curiae 27. But that argument rests on the faulty
premise that “our system of representative democracy”
requires specific groups to have representation in a specific
manner. As I have explained, the Constitution does not
impose that requirement. See Parts II–A, II–B, supra.
And as the Court recently reminded us, States are free to
serve as “ ‘laboratories’ ” of democracy. Arizona State
Legislature v. Arizona Independent Redistricting Comm’n,
576 U. S. ____, ____ (2015) (slip op., at 28). That “labora­
tory” extends to experimenting about the nature of democ­
racy itself.
Second, the Court’s efforts to monitor the political pro­
cess have failed to provide any consistent guidance for the
States. Even if it were justifiable for this Court to enforce
some principle of majority rule, it has been unable to do so
in a principled manner. Our precedents do not address
16 EVENWEL v. ABBOTT
THOMAS, J., concurring in judgment
the myriad other ways that minorities (or fleeting majori­
ties) entrench themselves in the political system. States
can place policy choices in their constitutions or have
supermajoritarian voting rules in a legislative assembly.
See, e.g., N. Y. Const., Art. V, §7 (constitutionalizing pub­
lic employee pensions); Ill. Const., Art. VII, §6(g) (requir­
ing a three-fifths vote of the General Assembly to pre­
empt certain local ordinances). In theory, of course, it
does not seem to make a difference if a state legislature is
unresponsive to the majority of residents because the state
assembly requires a 60% vote to pass a bill or because 40%
of the population elects 51% of the representatives.
So far as the Constitution is concerned, there is no
single “correct” way to design a republican government.
Any republic will have to reconcile giving power to the
people with diminishing the influence of special interests.
The wisdom of the Framers was that they recognized this
dilemma and left it to the people to resolve. In trying to
impose its own theory of democracy, the Court is hope-
lessly adrift amid political theory and interest-group
politics with no guiding legal principles.
III
This case illustrates the confusion that our cases have
wrought. The parties and the Government offer three
positions on what this Court’s one-person, one-vote cases
require States to equalize. Under appellants’ view, the
Fourteenth Amendment protects the right to an equal
vote. Brief for Appellants 26. Appellees, in contrast,
argue that the Fourteenth Amendment protects against
invidious discrimination; in their view, no such discrimi­
nation occurs when States have a rational basis for the
population base that they select, even if that base leaves
eligible voters malapportioned. Brief for Appellees 16–17.
And, the Solicitor General suggests that reapportionment
by total population is the only permissible standard be­
Cite as: 578 U. S. ____ (2016) 17
THOMAS, J., concurring in judgment
cause Reynolds recognized a right of “equal representation
for equal numbers of people.” Brief for United States as
Amicus Curiae 17.
Although the majority does not choose among these
theories, it necessarily denies that the Equal Protection
Clause protects the right to cast an equally weighted
ballot. To prevail, appellants do not have to deny the
importance of equal representation. Because States can
equalize both total population and total voting power
within the districts, they have to show only that the right
to cast an equally weighted vote is part of the one-person,
one-vote right that we have recognized. But the majority
declines to find such a right in the Equal Protection
Clause. Ante, at 18–19. Rather, the majority acknowl­
edges that “[f]or every sentence appellants quote from the
Court’s opinions [establishing a right to an equal vote],
one could respond with a line casting the one-person, one-
vote guarantee in terms of equality of representation, not
voter equality.” Ante, at 16. Because our precedents are
not consistent with appellants’ position—that the only
constitutionally available choice for States is to allocate
districts to equalize eligible voters—the majority con­
cludes that appellants’ challenge fails. Ante, at 15–19.
I agree with the majority’s ultimate disposition of this
case. As far as the original understanding of the Constitu­
tion is concerned, a State has wide latitude in selecting its
population base for apportionment. See Part II–B, supra.
It can use total population, eligible voters, or any other
nondiscriminatory voter base. Ibid. And States with a
bicameral legislature can have some mixture of these
theories, such as one population base for its lower house
and another for its upper chamber. Ibid.
Our precedents do not compel a contrary conclusion.
Appellants are correct that this Court’s precedents have
primarily based its one-person, one-vote jurisprudence on
the theory that eligible voters have a right against vote
18 EVENWEL v. ABBOTT
THOMAS, J., concurring in judgment
dilution. E.g., Hadley, 397 U.S., at 52–53; Reynolds, 377
U.S., at 568. But this Court’s jurisprudence has vacillated
too much for me to conclude that the Court’s precedents
preclude States from allocating districts based on total
population instead. See Burns, 384 U.S., at 92 (recogniz­
ing that States may choose other nondiscriminatory popu­
lation bases). Under these circumstances, the choice is
best left for the people of the States to decide for them­
selves how they should apportion their legislature.
* * *
There is no single “correct” method of apportioning state
legislatures. And the Constitution did not make this
Court “a centralized politburo appointed for life to dictate
to the provinces the ‘correct’ theories of democratic repre­
sentation, [or] the ‘best’ electoral systems for securing
truly ‘representative’ government.” Holder v. Hall, 512
U.S. 874, 913 (1994) (THOMAS, J., concurring in judg­
ment). Because the majority continues that misguided
search, I concur only in the judgment.
Cite as: 578 U. S. ____ (2016) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–940
_________________
SUE EVENWEL, ET AL., APPELLANTS v. GREG
ABBOTT, GOVERNOR OF TEXAS, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF TEXAS
[April 4, 2016]
JUSTICE ALITO, with whom JUSTICE THOMAS joins ex­
cept as to Part III–B, concurring in the judgment.
The question that the Court must decide in this case is
whether Texas violated the “one-person, one-vote” princi­
ple established in Reynolds v. Sims, 377 U.S. 533 (1964),
by adopting a legislative redistricting plan that provides
for districts that are roughly equal in total population.
Appellants contend that Texas was required to create
districts that are equal in the number of eligible voters,
but I agree with the Court that Texas’ use of total popula­
tion did not violate the one-person, one-vote rule.
I
Both practical considerations and precedent support the
conclusion that the use of total population is consistent
with the one-person, one-vote rule. The decennial census
required by the Constitution tallies total population.
Art. I, §2, cl. 3; Amdt. 14, §2. These statistics are more
reliable and less subject to manipulation and dispute than
statistics concerning eligible voters. Since Reynolds,
States have almost uniformly used total population in
attempting to create legislative districts that are equal in
size. And with one notable exception, Burns v. Richard-
son, 384 U.S. 73 (1966), this Court’s post-Reynolds cases
have likewise looked to total population. Moreover, much
2 EVENWEL v. ABBOTT
ALITO, J., concurring in judgment
of the time, creating districts that are equal in total popu­
lation also results in the creation of districts that are at
least roughly equal in eligible voters. I therefore agree
that States are permitted to use total population in redis­
tricting plans.
II
Although this conclusion is sufficient to decide the case
before us, Texas asks us to go further and to hold that
States, while generally free to use total population statis­
tics, are not barred from using eligible voter statistics.
Texas points to Burns, in which this Court held that Ha­
waii did not violate the one-person, one-vote principle by
adopting a plan that sought to equalize the number of
registered voters in each district.
Disagreeing with Texas, the Solicitor General dismisses
Burns as an anomaly and argues that the use of total
population is constitutionally required. The Solicitor
General contends that the one-person, one-vote rule
means that all persons, whether or not they are eligible to
vote, are entitled to equal representation in the legisla­
ture. Accordingly, he argues, legislative districts must be
equal in total population even if that results in districts
that are grossly unequal in the number of eligible voters, a
situation that is most likely to arise where aliens are
disproportionately concentrated in some parts of a State.
This argument, like that advanced by appellants, impli­
cates very difficult theoretical and empirical questions
about the nature of representation. For centuries, politi­
cal theorists have debated the proper role of representa­
tives,1 and political scientists have studied the conduct of
——————
1 See, e.g., H. Pitkin, The Concept of Representation 4 (1967)
(“[D]iscussions of representation are marked by long-standing, persis­
tent controversies which seem to defy solution”); ibid. (“Another vexing
and seemingly endless controversy concerns the proper relation be­
tween representative and constituents”); Political Representation i (I.
Cite as: 578 U. S. ____ (2016) 3
ALITO, J., concurring in judgment
legislators and the interests that they actually advance.2
We have no need to wade into these waters in this case,
and I would not do so. Whether a State is permitted to use
some measure other than total population is an important
and sensitive question that we can consider if and when
we have before us a state districting plan that, unlike the
current Texas plan, uses something other than total popu­
lation as the basis for equalizing the size of districts.
——————
Shapiro, S. Stokes, E. Wood, & A. Kirshner eds. 2009) (“[R]elations
between the democratic ideal and the everyday practice of political
representation have never been well defined and remain the subject of
vigorous debate among historians, political theorists, lawyers, and
citizens”); id., at 12 (“[W]e need a better understanding of these com­
plex relations in their multifarious parts before aspiring to develop any
general theory of representation”); S. Dovi, Political Representation,
The Stanford Encyclopedia of Philosophy (E. Zalta ed. Spring 2014)
(“[O]ur common understanding of political representation is one that
contains different, and conflicting, conceptions of how political repre­
sentatives should represent and so holds representatives to standards
that are mutually incompatible”), online at http://plato.stanford.edu/
archives/spr2014/entries/political-representation (all Internet materials
as last visited Mar. 31, 2016); ibid. (“[W]hat exactly representatives do
has been a hotly contested issue”).
2 See, e.g., Andeweg, Roles in Legislatures, in The Oxford Handbook
of Legislative Studies 268 (S. Martin, T. Saalfeld, & K. Strøm eds.
2014) (explaining that the social sciences have not “succeeded in
distilling [an] unambiguous concept[ion]” of the “role” of a legislator);
Introduction, id., at 11 (“Like political science in general, scholars of
legislatures approach the topic from different and, at least partially,
competing theoretical perspectives”); Diermeier, Formal Models of
Legislatures, id., at 50 (“While the formal study of legislative politics
has come a long way, much remains to be done”); Best & Vogel, The
Sociology of Legislators and Legislatures, id., at 75–76 (“Stable repre­
sentative democracies are . . . institutional frameworks and informal
arrangements which achieve an equilibrium between the competing
demands [of constituents and political opponents]. How this situation
affects the daily interactions of legislators is largely unknown”).
4 EVENWEL v. ABBOTT
ALITO, J., concurring in judgment
III
A
The Court does not purport to decide whether a State
may base a districting plan on something other than total
population, but the Court, picking up a key component of
the Solicitor General’s argument, suggests that the use of
total population is supported by the Constitution’s formula
for allocating seats in the House of Representatives among
the States. Because House seats are allocated based on
total population, the Solicitor General argues, the one-
person, one-vote principle requires districts that are equal
in total population. I write separately primarily because I
cannot endorse this meretricious argument.
First, the allocation of congressional representation
sheds little light on the question presented by the Solicitor
General’s argument because that allocation plainly vio­
lates one person, one vote.3 This is obviously true with
respect to the Senate: Although all States have equal
representation in the Senate, the most populous State
(California) has 66 times as many people as the least
populous (Wyoming). See United States Census 2010,
Resident Population Data, http://www.census.gov/
2010census/data/apportionment-pop-text.php. And even
the allocation of House seats does not comport with one
person, one vote. Every State is entitled to at least one
seat in the House, even if the State’s population is lower
than the average population of House districts nationwide.
U. S. Const., Art. I, §2, cl. 3. Today, North Dakota, Ver­
——————
3 As
JUSTICE THOMAS notes, ante, at 8–10 (opinion concurring in
judgment), the plan for the House of Representatives was based in
large part on the view that there should be “equality of representation,”
but that does not answer the question whether it is eligible voters (as
appellants urge), all citizens, or all residents who should be equally
represented. The Constitution allocates House seats based on total
inhabitants, but as I explain, the dominant, if not exclusive, reason for
that choice was the allocation of political power among the States.
Cite as: 578 U. S. ____ (2016) 5
ALITO, J., concurring in judgment
mont, and Wyoming all fall into that category. See United
States Census 2010, Apportionment Data, http://www.census.
gov/2010census/data/apportionment-data-text.php. If one
person, one vote applied to allocation of House seats
among States, I very much doubt the Court would uphold
a plan where one Representative represents fewer than
570,000 people in Wyoming but nearly a million people
next door in Montana.4
Second, Reynolds v. Sims squarely rejected the argu­
ment that the Constitution’s allocation of congressional
representation establishes the test for the constitution-
ality of a state legislative districting plan. Under one Ala-
bama districting plan before the Court in that case, seats
in the State Senate were allocated by county, much as
seats in the United States Senate are allocated by State.
(At that time, the upper houses in most state legislatures
were similar in this respect.) The Reynolds Court noted
that “[t]he system of representation in the two Houses of
the Federal Congress” was “conceived out of compromise
and concession indispensable to the establishment of our
federal republic.” 377 U.S., at 574. Rejecting Alabama’s
argument that this system supported the constitutionality
of the State’s apportionment of senate seats, the Court
concluded that “the Founding Fathers clearly had no
intention of establishing a pattern or model for the appor­
tionment of seats in state legislatures when the system of
representation in the Federal Congress was adopted.” Id.,
——————
4 The Court brushes off the original Constitution’s allocation of con­
gressional representation by narrowing in on the Fourteenth Amend­
ment’s ratification debates. Ante, at 13, n. 10. But those debates were
held in the shadow of that original allocation. And what Congress
decided to do after those debates was to retain the original apportion­
ment formula—minus the infamous three-fifths clause—and attach a
penalty to the disenfranchisement of eligible voters. In short, the
Fourteenth Amendment made no structural changes to apportionment
that bear on the one-person, one-vote rule.
6 EVENWEL v. ABBOTT
ALITO, J., concurring in judgment
at 573; see also Gray v. Sanders, 372 U.S. 368, 378 (1963).
Third, as the Reynolds Court recognized, reliance on the
Constitution’s allocation of congressional representation is
profoundly ahistorical. When the formula for allocating
House seats was first devised in 1787 and reconsidered at
the time of the adoption of the Fourteenth Amendment in
1868, the overwhelming concern was far removed from
any abstract theory about the nature of representation.
Instead, the dominant consideration was the distribution
of political power among the States.
The original Constitution’s allocation of House seats
involved what the Reynolds Court rather delicately termed
“compromise and concession.” 377 U.S., at 574. Seats
were apportioned among the States “according to their
respective Numbers,” and these “Numbers” were “deter­
mined by adding to the whole Number of free Persons . . .
three fifths of all other Persons.” Art. I, §2, cl. 3. The
phrase “all other Persons” was a euphemism for slaves.
Delegates to the Constitutional Convention from the slave
States insisted on this infamous clause as a condition of
their support for the Constitution, and the clause gave the
slave States more power in the House and in the electoral
college than they would have enjoyed if only free persons
had been counted.5 These slave-state delegates did not
——————
5 See A. Amar, America’s Constitution: A Biography 87–98 (2005)
(Amar); id., at 94 (“The best justification for the three-fifths clause
sounded in neither republican principle nor Revolutionary ideology, but
raw politics”); see also id., at 88–89 (explaining that the “protective
coloring” camouflaging the slave States’ power grab “would have been
wasted had the Constitution pegged apportionment to the number of
voters, with a glaringly inconsistent add-on for nonvoting slaves”); cf.
G. Van Cleve, A Slaveholders’ Union 126 (2010) (“[T]he slave states saw
slave representation as a direct political protection for wealth consist­
ing of slave property against possible Northern attacks on slavery, and
told the Convention unequivocally that they needed such protection in
order to obtain ratification of the Constitution”); id., at 133–134 (“The
compromise on representation awarded disproportionate shares of
Cite as: 578 U. S. ____ (2016) 7
ALITO, J., concurring in judgment
demand slave representation based on some philosophical
notion that “representatives serve all residents, not just
those eligible or registered to vote.” Ante, at 18.6
B
The Court’s account of the original Constitution’s alloca­
tion also plucks out of context Alexander Hamilton’s
statement on apportionment. The Court characterizes
Hamilton’s words (more precisely, Robert Yates’s sum­
mary of his fellow New Yorker’s words) as endorsing ap­
portionment by total population, and positions those words
as if Hamilton were talking about apportionment in the
House. Ante, at 9. Neither is entirely accurate. The
“quote” comes from the controversy over Senate appor­
tionment, where the debate turned on whether to appor­
tion by population at all. See generally 1 Records of the
Federal Convention of 1787, pp. 470–474 (M. Farrand ed.
1911). Hamilton argued in favor of allocating Senate seats
by population:
“The question, after all is, is it our interest in modify­
ing this general government to sacrifice individual
rights to the preservation of the rights of an artificial
being, called states? There can be no truer principle
than this—that every individual of the community at
large has an equal right to the protection of govern­
ment. If therefore three states contain a majority of
the inhabitants of America, ought they to be governed
by a minority? Would the inhabitants of the great
states ever submit to this? If the smaller states main­
——————
representative influence to certain vested political-economy interests,
one of which was the slave labor economies”).
6 See Amar 92 (“But masters did not as a rule claim to virtually rep­
resent the best interests of their slaves. Masters, after all, claimed the
right to maim and sell slaves at will, and to doom their yet unborn
posterity to perpetual bondage. If this could count as virtual represen­
tation, anything could”).
8 EVENWEL v. ABBOTT
ALITO, J., concurring in judgment
tain this principle, through a love of power, will not
the larger, from the same motives, be equally tena­
cious to preserve their power?” Id., at 473.
As is clear from the passage just quoted, Hamilton (ac­
cording to Yates) thought the fight over apportionment
was about naked power, not some lofty ideal about the
nature of representation. That interpretation is confirmed
by James Madison’s summary of the same statement by
Hamilton: “The truth is it [meaning the debate over appor­
tionment] is a contest for power, not for liberty. . . . The
State of Delaware having 40,000 souls will lose power, if
she has 1/10 only of the votes allowed to Pa. having
400,000.” Id., at 466. Far from “[e]ndorsing apportion­
ment based on total population,” ante, at 9, Hamilton was
merely acknowledging the obvious: that apportionment in
the new National Government would be the outcome of a
contest over raw political power, not abstract political
theory.
C
After the Civil War, when the Fourteenth Amendment
was being drafted, the question of the apportionment
formula arose again. Thaddeus Stevens, a leader of the
so-called radical Republicans, unsuccessfully proposed
that apportionment be based on eligible voters, rather
than total population. The opinion of the Court suggests
that the rejection of Stevens’ proposal signified the adop­
tion of the theory that representatives are properly under­
stood to represent all of the residents of their districts,
whether or not they are eligible to vote. Ante, at 10–12.
As was the case in 1787, however, it was power politics,
not democratic theory, that carried the day.
In making his proposal, Stevens candidly explained that
the proposal’s primary aim was to perpetuate the domi­
nance of the Republican Party and the Northern States.
Cong. Globe, 39th Cong., 1st Sess., 74 (1865); Van Alstyne,
Cite as: 578 U. S. ____ (2016) 9
ALITO, J., concurring in judgment
The Fourteenth Amendment, The “Right” to Vote, and the
Understanding of the Thirty-Ninth Congress, 1965 S. Ct.
Rev. 33, 45–47 (Van Alstyne). As Stevens spelled out, if
House seats were based on total population, the power of
the former slave States would be magnified. Prior to the
Civil War, a slave had counted for only three-fifths of a
person for purposes of the apportionment of House seats.
As a result of the Emancipation Proclamation and the
Thirteenth Amendment, the former slaves would now be
fully counted even if they were not permitted to vote. By
Stevens’ calculation, this would give the South 13 addi­
tional votes in both the House and the electoral college.
Cong. Globe, 39th Cong., 1st Sess., 74 (1865); Van
Alstyne 46.
Stevens’ proposal met with opposition in the Joint
Committee on Reconstruction, including from, as the
majority notes, James Blaine. Ante, at 11. Yet, as it does
with Hamilton’s, the majority plucks Blaine’s words out of
context:
“[W]e have had several propositions to amend the
Federal Constitution with respect to the basis of rep­
resentation in Congress. These propositions . . . give
to the States in future a representation proportioned
to their voters instead of their inhabitants.
“The effect contemplated and intended by this
change is perfectly well understood, and on all hands
frankly avowed. It is to deprive the lately rebellious
States of the unfair advantage of a large representa­
tion in this House, based on their colored population,
so long as that population shall be denied political
rights by the legislation of those States. . . .
“The direct object thus aimed at, as it respects the
rebellious States, has been so generally approved that
little thought seems to have been given to the inci­
dental evils which the proposed constitutional
10 EVENWEL v. ABBOTT
ALITO, J., concurring in judgment
amendment would inflict on a large portion of the
loyal States—evils, in my judgment, so serious and
alarming as to lead me to oppose the amendment in
any form in which it has yet been presented. As an
abstract proposition no one will deny that population
is the true basis of representation; for women, chil­
dren, and other non-voting classes may have as vital
an interest in the legislation of the country as those
who actually deposit the ballot. . . .
“If voters instead of population shall be made the
basis of representation certain results will follow, not
fully appreciated perhaps by some who are now ur­
gent for the change.” Cong. Globe, 39th Cong., 1st
Sess., 141 (1865).
The “not fully appreciated” and “incidental evi[l]” was, in
Blaine’s view, the disruption to loyal States’ representa­
tion in Congress. Blaine described how the varying suf­
frage requirements in loyal States could lead to, for in­
stance, California’s being entitled to eight seats in the
House and Vermont’s being entitled only to three, despite
their having similar populations. Ibid.; see also 2 B.
Ackerman, We the People: Transformations 164, 455, n. 5
(1998); Van Alstyne 47, 70. This mattered to Blaine be­
cause both States were loyal and so neither deserved to
suffer a loss of relative political power. Blaine therefore
proposed to apportion representatives by the “whole num­
ber of persons except those to whom civil or political rights
or privileges are denied or abridged by the constitution or
laws of any State on account of race or color.” Cong.
Globe, 39th Cong., 1st Sess., 142.
“This is a very simple and very direct way, it seems to
me, of reaching the result aimed at without embar­
rassment to any other question or interest. It leaves
population as heretofore the basis of representation,
does not disturb in any manner the harmonious rela­
Cite as: 578 U. S. ____ (2016) 11
ALITO, J., concurring in judgment
tions of the loyal States, and it conclusively deprives
the southern States of all representation in Congress
on account of the colored population so long as those
States may choose to abridge or deny to that popula­
tion the political rights and privileges accorded to oth­
ers.” Ibid.
As should be obvious from these lengthy passages, Blaine
recognized that the “generally approved” “result aimed at”
was to deprive southern States of political power; far from
quibbling with that aim, he sought to achieve it while
limiting the collateral damage to the loyal northern
States. See Van Alstyne 47.
Roscoe Conkling, whom the majority also quotes, ante,
at 11, seemed to be as concerned with voter-based appor­
tionment’s “narrow[ing] the basis of taxation, and in some
States seriously,” as he was with abstract notions of repre­
sentational equality. Cong. Globe, 39th Cong., 1st Sess.,
358; id., at 359 (“representation should go with taxation”);
ibid. (apportionment by citizenship “would narrow the
basis of taxation and cause considerable inequalities in
this respect, because the number of aliens in some States
is very large, and growing larger now, when emigrants
reach our shores at the rate of more than a State a year”).
And Hamilton Ward, also quoted by the majority, ante, at
11, was primarily disturbed by “[t]he fact that one South
Carolinian, whose hands are red with the blood of fallen
patriots, and whose skirts are reeking with the odors of
Columbia and Andersonville, will have a voice as potential
in these Halls as two and a half Vermont soldiers who
have come back from the grandest battle-fields in history
maimed and scarred in the contest with South Carolina
traitors in their efforts to destroy this Government”—and
only secondarily worried about the prospect of “taxation
without representation.” Cong. Globe, 39th Cong., 1st
Sess., 434.
12 EVENWEL v. ABBOTT
ALITO, J., concurring in judgment
Even Jacob Howard, he of the “theory of the Constitu­
tion” language, ante, at 12, bemoaned the fact that basing
representation on total population would allow southern
States “to obtain an advantage which they did not possess
before the rebellion and emancipation.” Cong. Globe, 39th
Cong., 1st Sess., 2766. “I object to this. I think they can­
not very consistently call upon us to grant them an addi­
tional number of Representatives simply because in con­
sequence of their own misconduct they have lost the
property [meaning slaves, whom slaveholders considered
to be property] which they once possessed, and which
served as a basis in great part of their representation.”
Ibid. The list could go on. The bottom line is that in the
leadup to the Fourteenth Amendment, claims about repre­
sentational equality were invoked, if at all, only in service
of the real goal: preventing southern States from acquiring
too much power in the National Government.
After much debate, Congress eventually settled on the
compromise that now appears in §2 of the Fourteenth
Amendment. Under that provision, House seats are ap­
portioned based on total population, but if a State wrong­
fully denies the right to vote to a certain percentage of its
population, its representation is supposed to be reduced
proportionally.7 Enforcement of this remedy, however, is
——————
7 Section 2 provides:
“Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole number of
persons in each State, excluding Indians not taxed. But when the right
to vote at any election for the choice of electors for President and Vice
President of the United States, Representatives in Congress, the
Executive and Judicial officers of a State, or the members of the Legis­
lature thereof, is denied to any of the male inhabitants of such State,
being twenty-one years of age, and citizens of the United States, or in
any way abridged, except for participation in rebellion, or other crime,
the basis of representation therein shall be reduced in the proportion
which the number of such male citizens shall bear to the whole number
of male citizens twenty-one years of age in such State.”
Cite as: 578 U. S. ____ (2016) 13
ALITO, J., concurring in judgment
dependent on action by Congress, and—regrettably—the
remedy was never used during the long period when vot­
ing rights were widely abridged. Amar 399.
In light of the history of Article I, §2, of the original
Constitution and §2 of the Fourteenth Amendment, it is
clear that the apportionment of seats in the House of
Representatives was based in substantial part on the
distribution of political power among the States and not
merely on some theory regarding the proper nature of
representation. It is impossible to draw any clear consti­
tutional command from this complex history.
* * *
For these reasons, I would hold only that Texas permis­
sibly used total population in drawing the challenged
legislative districts. I therefore concur in the judgment of
the Court.
——————
Needless to say, the reference in this provision to “male inhabitants
. . . being twenty-one years of age” has been superseded by the Nine­
teenth and Twenty-sixth Amendments. But notably the reduction in
representation is pegged to the proportion of (then) eligible voters
denied suffrage. Section 2’s representation-reduction provision makes
no appearance in the Court’s structural analysis.