The Supreme Court case that could doom the Democrats: How the justices could help GOP rig the game

A new proposal to change how legislative districts are drawn shows conservatives' ruthless cynicism in action

Published May 28, 2015 2:57PM (EDT)

  (AP/Dave Tulis/Larry Downing/Photo montage by Salon)
(AP/Dave Tulis/Larry Downing/Photo montage by Salon)

This week, the Supreme Court opted to hear arguments in Evenwel v. Abbott, a case out of Texas that challenges the ways in which states draw their legislative districts. The longstanding status quo has been that when state governments set the boundaries for legislative districts, they use census estimates of total populations to determine where the boundaries should be drawn so that each district contains roughly the same number of people. The plaintiffs in Evenwel, and the conservative activist group representing them, argue that the districts should be drawn based on the number of eligible voters, not the total population. It’s a challenge to the existing notion of “one person, one vote,” and up until now, the high court has been unwilling to consider cases that seek to redefine that principle.

This case is yet another testament to the conservative movement’s boundless creativity when it comes to exploiting the courts to achieve policy outcomes. Conservative activists know that if they can wrap their policy agenda in a legal argument that at least sounds plausible, they have a pretty good chance of getting a favorable decision from the Supreme Court’s conservative bloc.

In this case, the policy agenda is restricting the political power of Democratically-aligned populations. The reason conservative activists are seeking this change to “one person, one vote” isn’t to satisfy an ideological argument. As law professor Richard Hasen noted at Slate, the argument being put forth by the conservative group behind the case actually hampers the abilities of local governments to determine their own systems of political representation. They’re urging the Supreme Court to restrict the rights of the individual states, which tends not to comport too well with the conservative ideal of “small government.” But, as Hasen writes, “a ruling favorable to conservatives in the Evenwel case, especially if extended to congressional redistricting, could shift more power to Republicans, who are more likely to live in areas with high concentrations of voters.”

Urban areas have greater concentrations of people who, for one reason or another, are not eligible to vote. By removing them from the tallies when redrawing district lines, you’re effectively diminishing the number of districts that will be more likely to vote Democratic. In states like Texas, the impact could be huge. “Drawing districts based on the number of voters would mean that Hispanic districts in many parts of Texas would need to contain more actual people (each a constituent), than comparable suburban white districts,” the Brennan Center for Justice notes. The conservatives pushing for this change understand this, and the overall goal of increasing Republican political power outweighs the ideological considerations.

It also outweighs the practical considerations. Determining district boundaries is a messy business as it is. States use estimates of total population because it’s the least troublesome way of counting and, at the very least, they are consistent across the board. Mandating a shift to counting only the eligible voting population introduces a huge amount of complexity and chaos into an already uncertain process. Hot Air’s Jazz Shaw explains:

Among those who are currently ineligible, how many will finish their prison terms and regain the right to vote? How many will complete the naturalization process? The list goes on and it’s a dizzying problem to even contemplate. I suppose the court could say something vague along the lines of demanding that the state make their “best effort” to determine the numbers, but then you’re just in line for an endless series of lawsuits from plaintiffs who claim that the best effort in question wasn’t good enough or was corrupted by biased politicians.

It has the real potential to be a great big disaster in the making, and pretty soon you’re going to hear pretty every conservative with access to a media platform demand that it happen. As Paul Waldman writes at the Washington Post, the conservative posture towards Evenwel will very likely be similar to what’s happened with another bit of right-wing legal exotica, the King v. Burwell challenge to the Affordable Care Act’s insurance subsidies:

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.

It’s a bluntly cynical way to realize one’s policy agenda without actually having to bother with elections and lawmaking, and conservatives have demonstrated time and again how ruthlessly effective it can be.

By Simon Maloy

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Conservatives Elections Minority Rights Supreme Court Texas The Right Voting Voting Rights