• Mario Nicolais

Evenwel coverage an unfortunate emphasis on winners and losers

I wrote about Evenwel v. Abbott in my first column for the Statesman. At the time, the Supreme Court had just accepted the “one person, one vote” case. In a unanimous opinion, the Supreme Court reiterated that “one person, one vote” continues to be a constitutional rule when applied to the redistricting processes used by states.


The court decision itself is pretty unexceptional. Justice Ruth Bader Ginsburg walked through the history of the rule, some prior decisions, the current application, and came to her conclusion affirming application of the rule. Justices Clarence Thomas and Samuel Alito wrote concurrences. All justices declined to wade into theoretical alternative rules.


All pretty standard.


What got reported in the aftermath is what seemed exceptional. And telling.


The focus of most stories I saw centered on the winners and losers. And not the specific plaintiffs, but the groups that stood to gain or lose political clout. Typical headlines included lines such as “Supreme Court just dealt a major blow to conservatives,” “Supreme Court ruling on redistricting a plus for democrats,” or “Supreme court bolsters political influence of U.S. latinos.”


To be certain, each encompasses a practical effect and likely outcome based on the ruling. Declaring the rule unconstitutional would have been a boon to Republicans redrawing districts. Democrats avoided the predictions of doom if required to replace unregistered voters from populations more likely to support them with voters less likely to do the same. And many minority populations — who are statistically far less likely to register to vote — see an increase in political clout when each is counted regardless of registration.


In contrast, almost no article or report goes into depth regarding the rationale behind the decision. There is nothing on the judicial rules of interpretation employed. The contrasting historical views between the opinion and concurrences is lost without comment.

My lament may be solely due to my profession. As an attorney with substantial appellate experience, these are the things that matter to me. They are the best predictors of future outcomes and decisions. They are necessary for drafting opening briefs, answers, and replies in court.


But in our world where everything is measured in a binary won-loss metric, everything must be boiled down to who gets hurt and who gets helped. However, it also means that the complex work of courts is widely misunderstood or oversimplified by much of the populace. The ease of reference is why the justices are so often pigeon-holed in the conservative-liberal dichotomy, and not usually identified as an originalist, a textualist, an intentionalist, a pragmatist, or a natural law theorist.


Unfortunately, the consequences seem to be affecting how courts are viewed. It seems to be far more common for many people to see courts, and especially the Supreme Court, as just another political animal not much different than a legislature or executive. Look no further than the proposed nomination of Merrick Garland. Very few people can comment intelligently about his judicial philosophy and how he comes to decisions on the bench. But almost everyone can tell you he is supported by Democrats and opposed by Republicans. Hence, rather than an exploration of a judicial history and presence, his nomination is wrapped up in the partisan back and forth between a president and senate.


The winner-loser mentality even presents itself in the supposed “next steps” from Evenwel. Article after article highlight that the Supreme Court did not declare “one person, one vote” the only constitutionally accepted rule and that conservatives will likely exploit that language to mount a future fight.


And then we will be back to picking winners and losers.


Read this column from The Colorado Statesman online in ColoradoPolitics.com.

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