Amicus with Dahlia Lithwick – “One Person, One Vote”

Date: December 12, 2015
Podcast Main Theme:
A deep dive into the Supreme Court case Evenwel v. Abbott, challenging the long-established “one person, one vote” principle in state legislative redistricting, with discussions of legal, historical, practical, and political ramifications. The episode features conversations with legal experts Andrew Grossman (amicus for Project 21, supporting the plaintiffs) and Nate Persily (Stanford Law, supporting the status quo).

1. Overview of the Episode

• The episode centers on the Supreme Court hearing of Evenwel v. Abbott, a Texas apportionment case questioning whether states should draw legislative districts based on total population (as is current practice) or only on eligible voters.
• Host Dahlia Lithwick situates the debate in the broader context of voting rights, representation, and the evolving interpretations of the Constitution, contrasting equal vote weight versus equal representation.
• The show features:
  • Andrew Grossman, appellate litigator and amicus for the plaintiffs
  • Nate Persily, Stanford Law professor and redistricting expert with a counterbrief

2. Key Discussion Points and Insights

A. What Evenwel v. Abbott Is About

• Current Approach: Legislative districts drawn by total population according to the decennial census.
• Plaintiffs’ Argument: Representation should be based on eligible voters; counting non-voters (children, noncitizens, felons) dilutes the votes of eligible voters.
• Key Precedent: The “one person, one vote” doctrine stems from 1960s Warren Court decisions (Reynolds v. Sims, Baker v. Carr)—aimed at equalizing districts by people, not just voters.

B. Andrew Grossman’s Perspective (Plaintiffs’ Side)

(02:35–15:23)

• Historical Context:
  • In the early 1960s, the difference between total and voter populations was negligible due to tight immigration restrictions; now, demographic changes have created large disparities.
  • “When the Court started focusing on the one person, one vote doctrine ... whether you looked at raw population or a voter population, the results ... would be about the same ... In the time since then ... there have been these enormous disparities.” (03:02)
• Plaintiffs’ Situation Example:
  • Rural plaintiffs have 500,000 voters in their districts; an urban border district has 372,000 voters, but both have roughly equal populations—so rural votes count less.
  • “A Senate vote in Brownsville is worth about one and a half times the votes cast by Ms. Evenwell and Mr. Feninger, and that’s their complaint.” (04:08)
• Representation vs. Vote Weight:
  • Grossman argues the “real meat” of judicial precedents was about vote weight (voters), not necessarily about all residents being represented.
  • “There aren’t any cases ... saying that if you petition your legislator ... you have a right for the legislator to pay attention ... In voting rights cases ... only a voter can do that.” (07:44)
• Political Overtones:
  • Grossman pushes back against narratives that this shift would uniformly benefit white, rural, or Republican voters. Majority-minority splits may not be so clear-cut.
  • “If you were to switch to a system that paid attention to vote weight, you would see greater African American voting power in a number of inner cities.” (10:17)
  • Prediction of long-term political advantage is difficult; demographics and political patterns change.
• Data Practicalities:
  • Grossman contends usable data sets on eligible voters do exist (e.g., the Census American Community Survey) and are already employed for Voting Rights Act compliance.
  • “Every state, when they draw their maps, uses that ACS data ... to ensure they’re in compliance with Section 2 [of the VRA].” (12:35)
• Hybrid Model:
  • Hints that the Court might pursue a compromise: using total population but requiring states to also account for especially egregious deviations in voting population (e.g., if gaps exceed 20%). “You do both.” (14:26)
• Bottom Line: Plaintiffs only ask that states fix "gross disparities" in eligible voter populations between districts, not to mandate strict voter-only apportionment.

C. Nate Persily’s Perspective (Defense/Status Quo)

(17:03–36:04)

• Doctrine Origins:
  • “One person, one vote” not in the Constitution; a product of Warren Court-era activism to fix drastic rural overrepresentation in state legislatures.
  • “The Court came up with these decisions in the 1960s because places like Tennessee, Alabama ... had been drawing districts ... that overrepresented rural areas and underrepresented cities and suburbs.” (17:50)
• Practical Effects:
  • Shifting to a voter-based system would disadvantage areas with many children, large families, or noncitizens—affecting not just urban, but any community with more non-voting residents.
  • “Populations that tend to have larger families are going to be disadvantaged ... especially [in] public policy and how that might be shifted.” (21:32)
• Not Just a Noncitizen Issue:
  • Disenfranchised felons and prisoners are significant populations that complicate eligible-voter counting; plaintiffs ignore them. (22:01)
• Kennedy’s Hybrid Suggestion:
  • It's impractical to simultaneously equalize both population and voters: “Every other principle that might constrain the redistricting process would go out the window.” (24:10)
  • Attempts to do both would create gerrymandered, stringy, and nonsensical districts.
• Data Limitations:
  • No state has a complete data set of eligible voters. ACS survey data is sampled, not complete census enumeration, and lags population changes.
  • "No state has a data set of eligible voters ... there is no way you can actually draw districts on the basis of equal numbers of eligible voters." (25:40)
  • Counting by citizen voting-age population would require a new, intrusive census—risking undercounts, especially in immigrant communities.
• Political & Social Risk:
  • Including eligibility/citizenship questions on the census would deter participation: “You would sort of turn the census ... into a ‘show me your papers’ exercise.” (30:28)
  • The case is “of a piece” with national efforts to restrict the political power of minorities and urban communities, akin to other restrictive voting rights litigation.
  • “They want to craft a national rule that ... hamstrings states in their choice between equal representation ... and equal power of one’s vote.” (32:18)
• Policy Trend:
  • Broader context: While some voting access issues are worsening (e.g., Voter ID), many states expand early voting and alternative methods.
  • The motive behind such cases is as important as the actual turnout effect; restrictiveness often targets minorities under the guise of preventing fraud. (34:26)

D. Brief Foray Into Fisher v. University of Texas (Affirmative Action Case)

(38:00–42:23)

• Briefly recaps the week’s other Supreme Court case: Fisher v. University of Texas, about the use of race in college admissions.
• Highlights sharp exchanges between justices and lawyers, including notable controversial remarks by Justice Scalia on the “mismatch” theory and rebuttals by UT’s counsel.

3. Notable Quotes & Memorable Moments

• Andrew Grossman, on the philosophical divide:
  “You've got these two ... competing ideas, one of which is equal vote weight ... the other one is this idea of equal representation ... But ... there really isn’t a lot there [in case law] ... That kind of claim simply doesn’t exist.” (07:15)

• Sonia Sotomayor presses the plaintiffs’ argument:
  “There is a voting interest, but there’s also a representation interest. And it’s that which has led us to accept the total population base ... States have to have some discretion to figure out who should be having the representational voice.” (06:10)

• Nate Persily, on the census and eligible voters:
  “No state has a data set of eligible voters … You have to deal with disenfranchised felons, prisoners, people overseas ... There really is no physical way right now to draw districts on the basis of equal numbers of eligible voters.” (25:40)

• Justice Kennedy’s “middle way” approach:
  “If ... there’s a 45% deviation ... why isn’t Texas required ... to recognize that these interests ... which are voter based, should not be accommodated ... should at least give some consideration to this disparity?” (23:14)

• Nate Persily, on the case’s political valence:
  “It’s ... about equal power of one’s vote in the abstract. But it’s also about ... the creation of majority Latino districts, which they think over-represents some noncitizen communities. They see this constitutional rule as a way to combat that.” (32:35)

• Nate Persily, on broad voting policy trends:
  “While I think there’s really troubling moves ... with respect to voter identification, I don’t think it’s having a huge effect on voter turnout. The real question ... is, what’s motivating these changes?” (34:41)

4. Timestamps for Key Segments

• [00:53] – Introduction to Evenwel v. Abbott and voting rights theme
• [02:35–15:23] – Andrew Grossman’s interview and in-depth defense of the plaintiff’s case
• [17:03–36:04] – Nate Persily’s counter-perspective and explanation of the doctrine, history, and data obstacles
• [23:14] – Justice Kennedy’s suggestion of a hybrid “middle way”
• [38:00–42:23] – Short recap of Fisher v. University of Texas oral argument highlights

5. Tone and Style

• The conversation is thorough, accessible yet expert, and respectful even amidst clear disagreements.
• The host, Dahlia Lithwick, keeps the discussion brisk and engaging, blending constitutional theory, practicalities, and realpolitik.

Conclusion

This episode provides an in-depth, balanced, and highly relevant overview of how the Supreme Court is grappling with foundational questions of representation and democracy in Evenwel v. Abbott. It unpacks the legal arguments, the technical and philosophical stakes, and the broader political implications. Listeners come away understanding not just what’s at stake in the case, but how “one person, one vote” has always been—and is still—an evolving, fiercely contested American ideal.