The Man Behind the Newest Supreme Court Voting Case

The Man Behind the Newest Supreme Court Voting Case

Justices agree to review 'one person, one vote' doctrine in Texas redistricting case.

Tony Mauro, The National Law Journal

Edward Blum, the mastermind behind successful U.S. Supreme Court challenges to affirmative action and the federal Voting Rights Act, has done it again—this time, in a case that could reshape the way voting districts are drawn nationwide.

The court on Tuesday agreed to take another look at its long-standing "one person, one vote" doctrine in a Texas case orchestrated by Blum, director of the Project on Fair Representation.
Plaintiffs in Evenwel v. Abbott assert that states should be divided into districts based on the number of eligible voters—not the total population. When total population is used, they say, undocumented immigrants and other ineligible voters who live in urban areas are included, giving voters in those districts more relative clout than voters in rural districts.

An example: In one rural Texas senate district cited by the plaintiffs, 584,000 residents are eligible to vote, while only 372,000 eligible voters live in a nearby urban district. Yet both districts contain about the same number of people, 811,000, which means that voters in the rural district have less individual power.

"The plan in question created districts with roughly equal total population," the plaintiffs' brief stated, "but with gross disparities in voters or potential voters." The issue has been left unresolved in numerous prior Supreme Court cases on "one person, one vote" redistricting standards. Most states use total population to draw district lines.

In a 2001 case, Justice Clarence Thomas said the high court should decide which metric to use. "We have left a critical variable in the requirement undefined. We have never determined the relevant ‘population’ that states and localities must equally distribute among their districts … As long as we sustain the one-person-one-vote principle, we have an obligation to explain to states and localities what it actually means.”

The court's agreement to hear the case is another coup for Blum, who was behind other landmark Supreme Court cases that have been applauded by conservatives: Northwest Austin Municipal Utility Dist. No. One v. Holder and Shelby County, Ala. v. Holder on voting rights, and Fisher v. University of Texas on affirmative action. A sequel to the Fisher case is before the high court now. Nearly 20 years ago, Blum, who is not a lawyer, ran for Congress in Houston as a Republican, losing to a Democrat.

In Evenwel, numerous conservative and libertarian organizations backed Blum's effort by filing briefs urging the high court to take up the Texas case.

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Texas voters Sue Evenwel and Ed Pfenninger were recruited for the lawsuit to claim that their state Senate districts were improper because they contain more registered voters than are needed in urban districts. As with the affirmative action and voting rights cases, Blum found the plaintiffs with a Supreme Court challenge in mind. Blum mounted a similar lawsuit against using total population in drawing districts in Lepak v. City of Irving, which the Supreme Court declined to review in 2013.

Aided by lawyers from Wiley Rein, including William Consovoy who last year left to create Consovoy McCarthy, Blum tried again. This time, instead of a petition for certiorari, the Evenwel case came to the court through a different route—a challenge to a statewide redistricting program that is by law reviewed by a three-judge federal district court panel. That panel upheld the Texas districts, paving the way for Blum to appeal through a "jurisdictional statement" rather than certiorari.

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In its reply to the jurisdictional statement, Texas defended the use of total population in devising district lines. "Plaintiffs cite no case in which a court has accepted their claim that the Constitution compels states to apportion their legislative districts based on voter population, as opposed to or in addition to total population," state Solicitor General Scott Keller wrote. "And multiple precedents from this court confirm that total population is a permissible apportionment base under the equal protection clause."
The case will be scheduled for argument next fall or winter.

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