Nick Krieger (@nckrieger):
Earlier today, the United States Supreme Court ruled in Evenwel v. Abbott that states are constitutionally permitted to apportion legislative seats and draw legislative districts on the basis of total population.
The United States Supreme Court has previously ruled that the U.S. Constitution requires states to apportion legislative seats “on a population basis” and to make “an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.” But the Court had never specified whether “population” means the total number of people in a district or merely the total number of registered voters in a district.
Texas drew its most recent state senate districts on the basis of total population as determined by the 2010 U.S. Census. In Evenwel, the appellants argued that the Texas redistricting plan was illegal because it should have been based on the number of registered voters in each state senate district rather than the total number of people in each state senate district. The Supreme Court rejected this argument, ruling that the Constitution has always permitted states to use total population numbers in the drawing of legislative districts.
However, the Supreme Court explicitly declined to address whether the Constitution would permit a state to apportion its legislature on the basis of the number of registered voters in each district. Indeed, in the penultimate sentence of its opinion, the Evenwel Court observed, “we need not and do not resolve whether . . . States may draw districts to equalize voter-eligible population rather than total population.”
Will this sentence of the Supreme Court’s opinion be viewed as an invitation to apportion legislative seats on the basis of registered-voter population rather than total population? That remains to be seen. But don’t be surprised if Republican state lawmakers start introducing bills to require redistricting on the basis of registered-voter numbers.
It isn’t all that difficult to imagine such bills becoming law in Republican-controlled states like Michigan. But if they do, you can expect this issue to return to the Supreme Court for a resolution of the constitutional issue that was left open by today’s decision.