Judge Neil Gorsuch may soon join the Supreme Court, taking the seat formerly held by Justice Antonin Scalia, whose judicial philosophy he has praised as a model for his own. If so, Gorsuch will have an opportunity that Justice Antonin Scalia was deprived of by his untimely death: to help shape the future of the Court’s “One Person, One Vote” (OPOV) doctrine.
The origins of OPOV
First, a brief history of this doctrine’s origin. In the early 1960s, many states had legislative districts with widely varying population sizes. As population growth shifted from rural to urban areas, many states simply refused to redraw the district boundaries that they had used since the turn of the century, resulting in some urban districts with populations 40 times greater than rural districts. These imbalances meant that urban voters had proportionately less opportunity to influence the legislature with their votes.
Though the Supreme Court had declined for many years to wade into the “political thicket” of redistricting, it finally changed its mind in 1962. In a series of four cases decided between 1962 and 1964, the Court quickly struck down the use of unequal districts in the election of governors, U.S. Representatives, and state legislators.
The Court justified these decisions by applying the “Equal Protection” Clause of the Fourteenth Amendment, which guarantees that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Court focused on the fact that those living in districts of unequal size had unequally “weighted” votes. As it explained in one of these cases, Reynolds v. Sims,
an individual’s right to vote for state legislators is unconstitutionally impaired when [that vote’s] weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.
In each of these cases, the Court implicitly assumed that equality of total population in a district and equality of vote weight in that district were inextricably linked. But a new problem soon emerged that showed this was not always the case. Because so many of its residents were military members registered to vote in other states, Hawaii apportioned its districts on the basis of registered Hawaii voters rather than total population. The Supreme Court upheld this scheme in the 1966 case Burns v. Richardson, writing that a state’s decision of how to define “equal” districts “involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.”
This history brings us to last term. In Evenwel v. Abbott, several Texas voters sued because their districts had become proportionately overpopulated with eligible voters, thereby diluting the weight of their individual votes. In other words, their districts had very few children, non-citizens, military members registered to vote elsewhere, and other people who cannot vote. So the total number of voters was large relative to the total population, and thus each voter had less influence on any given election.
Unlike Hawaii in the ‘60s, Texas continued to apportion on the basis of total population, even as this difference in voter population became increasingly pronounced. The question in Evenwel was whether this unequal voter weight violated the Equal Protection Clause.
The Court, by a vote of 8-0, held that it did not. The Court wrote that “the Framers understood that [nonvoting] citizens were nonetheless entitled to representation in government,” and that apportioning on the basis of an equal “share” of a representative (whether one can vote for that representative or not) is permissible under this theory of representation.
The future of OPOV
After Evenwel, what does the future hold for OPOV? In the near term, the Supreme Court will likely have to decide whether the doctrine prevents states not just from creating districts of unequal size, but also of unequal partisan balance. In November of last year, a federal district court struck down a Wisconsin districting plan, on the grounds that partisan “gerrymandering” had given voters of one disfavored party an unequal ability to influence election outcomes, as measured by their greater share of “wasted” votes.
If this or a similar case reaches the high court, how might a Justice Gorsuch approach the issue? His record as a judge provides little direct guidance. Gorsuch’s only election-law ruling was a two-paragraph affirmance, holding that the Equal Protection Clause did not repeal the “Natural Born Citizen” requirement to serve as president, and that a state may ban ineligible candidates from appearing on the presidential ballot.
More relevant is Justice Gorsuch’s judicial philosophy of public-meaning originalism. As Gorsuch explained in his confirmation hearing, this philosophy is not bound to the practices of the drafters of a provision, but rather to the original meaning of the text itself:
The point of originalism … is [to] strive to understand what the words on the page mean.… And so when it comes to equal protection of the law, for example, it matters not a whit that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote.
Thus, an originalist need not disavow OPOV simply because it was not faithfully practiced in 1866. In fact, there is a healthy debate surrounding OPOV among originalists. Some do not think it is required by equal protection, including Justice Clarence Thomas (who concurred in the judgment in Evenwel, writing that “this Court has never provided a sound basis for the one-person, one-vote principle”) and Professor Ilya Somin. Others, like my colleague Ilya Shapiro and myself, agree with the principle and think Evenwel was wrongly decided.
Further, even an originalist who supports OPOV when used to equalize district size might hesitate before equalizing “vote efficiency.” Four justices, including Scalia and Thomas, have previously held that the equal protection clause does not provide “a judicially enforceable limit” on political gerrymandering, and it is unclear whether political science has advanced since then to create a more objective definition of unequal voting power.
These and other questions may soon confront a newly minted Justice Gorsuch. Though Justice Scalia died before his vote in Evenwel could be revealed, his successor will undoubtedly be an important voice shaping One Person, One Vote for many years to come.