These days, conservatives don’t suffer too many unanimous defeats at the Supreme Court, even in its currently unsettled status. But that’s what happened today, when the Court handed down an 8-0 ruling in a case called Evenwel v. Abbott, which had the potential to upend an understanding of democratic representation that has existed for two centuries, and give Republicans a way to tilt elections significantly in their favor before anyone even casts a vote.
The conservatives lost. But losing cases like this one is part of the way they do business. With a (usually) friendly Supreme Court, in recent years they’ve employed a strategy of maximal legal audacity, one that has yielded tremendous benefits to their cause.
This case was a relatively low-profile part of a comprehensive conservative assault on voting rights — or perhaps it’s more accurate to call it an assault on the ease with which people who are more likely to vote Democratic can obtain representation at the ballot box. The question was about how state legislative districts are drawn, and the principle of “one person, one vote.” We’ve long had a legal consensus that all districts in a state have to be approximately the same size, to give everyone equal representation; a state legislature can’t draw one district to include a million people and another district to include only a thousand (although you might point out that we do have a legislative body that violates this principle; it’s called the United States Senate, where Wyoming gets one senator for every 300, 000 residents and California gets one senator for every 20 million residents).
The plaintiffs in Evenwell argued that instead of using population to draw district lines, states should use the number of eligible voters. Apart from the fact that we know population numbers fairly precisely because of the census, and we have no such precision regarding eligible voters, that would exclude huge swaths of the public. You might immediately think of undocumented immigrants, but counting only eligible voters would also mean excluding people with green cards on their way to citizenship, children, and those who have had their voting rights taken away because of a criminal conviction. In practice, drawing districts this way would almost inevitably mean taking power away from urban areas more likely to vote Democratic and sending power to rural areas more likely to vote Republican. Which was of course the whole point.
This case was a real long shot from the beginning, as you might gather from the fact that the conservative activists who filed it were suing the state of Texas, which is controlled by Republicans and is not exactly enthusiastic about ensuring everyone’s voting rights (the state’s incredibly restrictive voter ID law is still working its way through the courts). The problem they ran into came from the fact that the lawsuit alleged not that a state may draw districts based on the number of eligible voters and not the population, but that it must draw districts that way. That was the only way for them to file the suit, since they were trying to force Texas to change how it was drawing districts.
Since Texas had chosen to use population, just as every other state does and always has, in order to force a change the plaintiffs wanted that method declared unconstitutional. If they had prevailed, that could have meant that every state legislative district in the country would have had to be redrawn. As Ruth Bader Ginsburg wrote in the ruling, “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.”
About the legal audacity I mentioned before: As unlikely as this case may have been to succeed, it’s another reminder of how legally aggressive the right has been lately. Again and again, whether it’s about voting rights or the Affordable Care Act or some other issue, they’ve come up with some novel legal theory that at first gets dismissed as completely absurd, then begins to sound mainstream as conservatives see an opportunity to gain a victory and rally around it. Even if they ultimately lose in court, the controversy can open up new legal and political avenues that hadn’t been evident before.