The next King v. Burwell is on its way. I don’t mean another court case that could undermine the Affordable Care Act. I mean a case that follows this pattern:
First, a conservative advocate comes up with a novel legal theory, one few people had considered before, to accomplish a Republican goal. Though it flies in the face of either logic, history, and common sense (as is the case in King) or settled precedent (as in this case), Republicans everywhere quickly realize its potential and embrace it wholeheartedly, no matter how many silly arguments they might have to make along the way. And in the end, five conservative justices on the Supreme Court might or might not give the GOP a huge and unexpected victory.
The case is called Evenwel v. Abbott, and it’s about how state legislative districts are drawn. Before your eyes glaze over, understand that it could have a profound effect on the balance of power not only in the states but in Congress as well:
Decades after the Supreme Court set “one person, one vote” as the standard states must meet in creating legislative districts that equitably distribute political power, the justices agreed Tuesday to decide exactly which persons should count.
The court, in accepting a Texas case brought by a conservative advocacy group, will consider whether states and localities may continue to use a place’s total population as the basis or must make redistricting decisions based on the number of citizens who are eligible to vote.
A shift from using total population would have an enormous impact in states with large immigrant populations because of the greater numbers of children and noncitizens. It would most likely transfer power from urban areas to more rural districts. The court will schedule the case for the new term that begins in October.
The analogy with King v. Burwell isn’t perfect, because that was a completely new issue, while this question has come before the courts from time to time. But most people who aren’t redistricting law experts have probably never even considered whether you could exclude children and immigrants from counting population in order to determine legislative districts.
But I promise you: before long, every Republican is going to decide that they firmly believe, as the most fundamental expression of their commitment to democracy and the vision of the Founding Fathers, that only eligible voters should count when tallying population to determine district lines.
One thing to watch out for as this plays out is the role of the conservative media. If I’m right, very soon you’re going to see Fox News hosts and radio talkers like Rush Limbaugh doing segments on this case, in effect instructing conservatives on what’s at stake and how they should think about the issue. That consistent drumbeat won’t only affect the conservative leaders and rank-and-file, it could even affect the Supreme Court justices, who will hear the arguments being made in the media in support of these plaintiffs. After a while, a legal theory that sounded absurd will begin to seem at the very least to be mainstream. In short order, there will be universal agreement on the right. And it could have a real impact on political power even if the plaintiffs lose.
That’s because the Supreme Court could rule a few different ways. They could hold that states must use total population. Or they could do what the plaintiffs ask, which is to require states to use only the number of eligible voters. Or they could maintain the status quo, which is that states can choose whatever method they like in determining population. If that’s the route they take (which would be in line with prior cases), it would open the door for a state-by-state Republican effort to change redistricting laws.
As it happens, the defendant in this case is the state of Texas, which wants to keep its current system. Let’s say the Court rules that things should stay as they are. That would allow states to use only eligible voters in counting population; it just happens that no state has done that before now. By the time the ruling comes down, however, Republicans will have woken up to the fact that here is a handy way to increase their power by diluting the representation of areas with large immigrant populations. If you had a state with a lot of immigrants but which was ruled by Republicans — like, just to pull an example at random, Texas — changing the way population is counted will suddenly seem like an urgent priority. Other states with large immigrant populations where Republicans are in charge, like Florida, Arizona, Georgia, and North Carolina, could get on board as well.
While this case only concerns state legislative districts, as law professor Rick Hasen writes, “you can bet that if the challengers are successful in this case, they will argue for the same principle to be applied to the drawing of national congressional districts.”
It’s too early to tell how the Supreme Court might rule, though most legal observers were surprised they decided to hear the case at all. If Democrats are smart, they’ll make the (perfectly true) argument that this is a naked attempt to take representation away from areas where there are lots of Latinos. That might give Republicans pause in trying to pursue this change if the Court allows it.
On the other hand, when faced with a choice between pleasing their base and enhancing their power on the one hand, and avoiding alienating Latinos on the other, Republicans always chosen the first. That could make this just one more way that Republicans manage to entrench themselves at the state level while making it exceedingly difficult for them to win another presidential election in the near future.