Next week promises to be a big week at the Supreme Court. Two major cases are scheduled for argument, one a case involving voting rights, the other an affirmative action case. Each has potentially dramatic consequences.
Evenwel v. Abbott, which will be argued on Tuesday, December 8, revisits the one person-one vote principle that the Court established in a series of voting right cases in the 1960s, the most significant of which was Reynolds v. Sims. In Reynolds, the Court held that malapportioned voting districts—that is, voting districts that vary widely in population—violate the Equal Protection Clause of the Fourteenth Amendment. The basic idea was that a voter in a more populous district has less voting power than a voter in a less populous district. Certain levels of vote “dilution,” the Court concluded, are unconstitutional. The Constitution requires a “one person, one vote” standard, which is met when voting districts are basically equal in size (the Court has recognized that small variations, generally under 10%, are acceptable).
On Tuesday, in the Evenwell case, the Court considers the question of how to measure population for purposes of redistricting under the one person, one vote requirement. Is the proper measure eligible voters or the total number of residents? Currently, total residents is the norm. The challengers in this case argue that when measuring voting district size under the one person, one vote standard, only eligible voters should be counted. In districts with large numbers of residents who are not eligible to vote (legal immigrants who are not citizens, undocumented immigrants, felons), a ruling adopting the challengers’ argument would significantly weaken the relative voting power of urban areas. Since Democrats tend to have a stronger presence in cities, there are obvious partisan implications to this case.
The other big case is Fisher v. University of Texas at Austin, an affirmative action case, which will be argued on Wednesday, December 9. This is the second time Abigail Fisher’s challenge to the University of Texas’ affirmative action policy has come before the Supreme Court. Texas has a distinctive approach to achieving racial diversity in its universities. Since 1997, the state has used a “Top 10% Plan” to assure assures admittance to the university system to those in the top 10% of their high school class. Since 2003, it has supplemented the 10% plan with a race-conscious admissions policy modeled on the University of Michigan Law School’s plan that the Supreme Court upheld in Grutter.
The question before the Court is whether Texas can sufficiently justify the necessity of the race conscious policy when it achieves substantial diversity with its top 10% plan. In 2013 the Court issued a 7-1 decision (Justice Kagan recused herself because she worked on the case when she was Solicitor General), returning the case to the lower federal courts with some additional guidelines on how the constitutional issue should be analyzed. Upon reviewing the case again, the lower courts again upheld UT’s racial preference program. Fisher’s lawyers appealed and got the case back before the Supreme Court.