• Mario Nicolais

Voter equality up for review in Supreme Court

One person, one vote.


For 50 years, those four words have been shorthand for the constitutional protection afforded Americans’ right to vote from improper dilution. The slogan is easy, elegant, and simple. It implies basic fairness and democratic rights. The meaning of this principle has seemingly been beyond dispute.


But some Texas voters think otherwise, and they’re taking their case to the U.S. Supreme Court. Last month the Court shocked many observers when it agreed to review Evenwel v. Abbott, a Texas case that challenged the basis for redistricting of state senate seats. The heart of the case rests in what “one person” means when applied to voting rights.For decades, Texas has redrawn its legislative maps every 10 years by dividing the total, raw population of the state by the number of legislative districts. Subsequently Texas draws districts with a roughly equal number of people in each district. The difference between the most and least populous districts in Texas is less than 10 percent. Colorado follows a similar procedure, though a constitutional mandate requires an even more restrictive 5 percent deviation.


But the plaintiffs in Evenwel claim that procedure is flawed. They believe it is so flawed that it violates their equal protection rights under the Fourteenth Amendment of the Constitution by unfairly diluting their votes. Their claims are based on the substantial gap that exists between total, raw population in districts and the “citizen voting-age population,” known as CVAP. And that gap is substantial.


While the variance in raw population is less than 10 percent, the variance in CVAP in some Texas districts climbs to nearly 50 percent. Consequently, the Evenwel plaintiffs believe voters who live in districts with a higher CVAP number are subject to undue dilution of their vote.


For example, take two districts with an identical raw population of 100 people. If the CVAP for District A is 80 and the CVAP for District B is 50, then each person in District A has one vote out of 80 (or 1.25 percent of the total vote) while each person in District B has one vote out of 50 (or 2 percent of the total vote). According to the theory of the Evenwel plaintiffs, that distortion improperly dilutes the voting rights of the voters in District A.


The difference in raw population and CVAP derives from the number of noncitizens, underage children, and people ineligible to vote for other reasons (e.g. felons) in any given district. And that is where the political rub becomes apparent.


If the Supreme Court agrees with the Evenwel plaintiffs, and districts are drawn based on CVAP, rural and suburban areas will see in increase political clout at the expense of urban centers. Minority groups with relatively high underage populations and low registration numbers, such as Latinos, will lose significant political power. Most experts agree that the Republican Party would see a windfall while Democrats suffered.


As briefings and arguments before the Supreme Court draw closer — and as the next election draws closer — the Evenwel case will come under an ever greater spotlight. How it affects one of the constitutional pillars to come out of the Civil Rights Era may reverberate for another 50 years. The question for now, though, is “one what, one vote?”



Mario Nicolais is an attorney and legal scholar at the Denver law firm of Hackstaff & Snow LLC.


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

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