As we in North Carolina have reason to know, federal election law has made redistricting by state governments extremely difficult. Some of the difficulty is due to a series of cases in which the US Supreme Court imposed a “one person, one vote” requirement on the states. The Court justified this imposition by saying that the one person, one vote principle is implicit in the Equal Protection Clause of the 14th Amendment; however, it failed to explain what the principle means in practice. (Which persons? Whose votes?) The Court recently had an opportunity to clarify matters, but, to the disappointment of many, it declined to do so.

Ever since it was imposed by the Court, the states have generally assumed they could satisfy the one person, one vote requirement by equalizing the total population within legislative districts, and that is what Texas attempted to do after the 2010 Census. The plaintiffs in Evenwel v. Abbott, however, complained that by redistricting on the basis of total population Texas had violated the one person, one vote principle and denied them the equal protection of the law. They pointed out that:

The general population of Texas includes millions of people who are ineligible to vote, mostly children and non-citizen aliens.

The people who are ineligible to vote are concentrated in urban areas, which means they make up a large percentage of the total population in some state senate districts and a small percentage in others.

As a result, the number of eligible voters varies greatly among senate districts, so much so that some rural districts contain almost twice as many eligible voters as some urban districts.

In an opinion delivered by Justice Ginsburg, the Court acknowledged all of these facts; nevertheless, it held that Texas’s use of total population as a basis for legislative apportionment does not violate the 14th Amendment.

It was a unanimous decision, which is unusual for a Court that is deeply divided along along ideological lines, and it points up something interesting about the way the ideological divide tends to play out when government action is challenged on Constitutional grounds. The liberal justices generally begin with a strong presumption that any and all government actions are lawful, and when they do exercise judicial oversight they tend to interpret the Constitution loosely in order to bring it into line with contemporary standards of fairness and justice. The conservative justices, on the other hand, are a bit more inclined to scrutinize government action and a lot more inclined to be guided exclusively by the original meaning of the text.

While these differences often lead to conflicting results, in Evenwel they encouraged unanimity. The liberals could happily defer to the government of Texas, not only because of the presumption of constitutionality, but also because treating non-citizens and citizens equally is consistent with contemporary liberal notions of fairness of justice. The conservatives, regardless of what they may have thought about the justice of treating citizens and non-citizens equally for apportionment purposes, could agree that deference was appropriate in this instance because nothing in the text of the 14th Amendment as originally understood forbids it.

In fairness to Justice Ginsburg, it should be noted that, despite being part of the liberal wing of the Court, she framed her opinion in distinctly originalist terms. She devoted a good deal of space to a discussion of what the founding fathers thought about representation and apportionment—quoting from James Madison in the Federalist Papers, and Alexander Hamilton on the Records of the Federal Convention of 1787—and she devoted even more space to a discussion of the Congressional debates that took place in 1866 at the time the 14th Amendment was written. She may have chosen to frame the opinion this way in order to bring conservative justices on board and thereby demonstrate that the Court can function effectively despite being evenly divided since Justice Scalia’s death. Nevertheless, it illustrates the extent to which Scalia succeeded in making originalism a standard element of Supreme Court jurisprudence.

Even given the unusual alignment of judicial philosophy and the originalist framing of Justice Ginsburg’s opinion, unanimity was only possible because the Court declined to do what many interested parties wanted it to do, namely, define the meaning of “one person, one vote.” The plaintiffs, for example, urged the Court to find that:

The “population” States must equalize for one-person, one-vote purposes is the population of eligible voters.… When total population figures do not protect eligible voters, demographic data that ensures “the vote of any citizen is approximately equal in weight to that of any other citizen in the State” must be used in the apportionment process.

The State of Texas, on the other hand, claimed it should be free to choose for itself how to comply with the one person, one vote requirement because, “The Equal Protection Clause does not compel states to rely upon a particular apportionment base.” Taking yet another view of the matter, in a brief filed on behalf of the Obama administration the Solicitor General suggested that, “A redistricting plan based on voters alone risks sending the distinct message that the political system is responsive to no one else,” and that:

Allowing States to choose which populations to equalize for Equal Protection analysis would … exacerbate existing redistricting problems [and] complicate enforcement and implementation of the Voting Rights Act.

Many organizations and governments filed amicus briefs encouraging the Court to endorse one or another of these three positions, but the Court refused to do so. Instead it simply held that, “A State or locality may draw its legislative districts based on total population.”

It’s impossible to know whether this narrow ruling was a deliberate exercise of judicial restraint or simply the only one that could command a majority. One thing, however, is certain: as far as redistricting in the states is concerned, Congress and the federal courts have made a mess, and they ought to clean it up. When and if they finally get around to it, they would do well to consider the radical suggestion that Justice Thomas made in his Evenwel concurrence:

In my view, the [Court] 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 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.