State Governance

Evenwel v. Abbott (2016)

  • May 17 2018

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Whether state voting districts based on total populations—rather than total voter populations—violates the one-person, one-vote principle of the Fourteenth Amendment’s Equal Protection Clause, especially when those districts have significantly disproportionate numbers of eligible voters.


State legislative districts in Texas are based on their total populations, which includes illegal aliens, prisoners, children, and others who are ineligible to vote. The issue is whether total voter populations should be considered as well, since the weight of votes in low-voter districts is greater compared with the weight of votes in high-voter districts, all things being equal.

For example, each of two state districts elects one state senator. If the two districts both have total populations of 100,000, and yet one district has only 5,000 eligible voters while the other has 90,000, the weight of those 5,000 eligible voters is greater compared to the weight of the 90,000 eligible voters in the second district, since both elect only one state senator.

Sue Evenwel and Edward Pfenninger, who lived in districts with proportionately high numbers of eligible voters, claimed that the total-population districting scheme diluted the weight of their votes. Indeed, after Texas finalized its redistricting plans after the 2010 census, the difference between the voter-eligible populations in any two districts was as much as 40 percent. They argued that basing senate district lines on total population alone violated their right to equal protection under the one-person, one-vote principle. Evenwel and Pfenninger sued, seeking to redraw the state senate map in favor of a map that would equalize both the voter population and the total population in each district.

Courts Below

The Fifth Circuit Court of Appeals appointed a three-judge panel of the District Court of the Western District of Texas to hear the case first. The court granted the state’s motion to dismiss the case, rejected Evenwel’s motion for summary judgment, and held that the state’s population-based districting, although not exactly proportional to representation, was well-within tolerable limits of the one-person, one-vote principle. See the opinion here:

Evenwel v. Perry, No. A-14-CV-335-LY-CH-MHS W.D. Texas 2014

The plaintiffs appealed directly to the Supreme Court, which affirmed the lower court ruling and held that state and local jurisdictions could constitutionally base districts on total population alone. See the opinion here:

Evenwel v. Abbott, 136 S.Ct. 1120   2016

Question Before the Supreme Court

“The question presented is whether the ‘one-person, one-vote’ principle of the Fourteenth Amendment creates a judicially enforceable right ensuring that the districting process does not deny voters an equal vote[?]”

CCJ Filed an amicus curiae brief in Support of Appellants


The Supreme Court’s one-person, one vote jurisprudence has focused on basing state legislative representation on the number of voters and citizens per district, not on their total populations. The question is whether it is unconstitutional for a State to significantly dilute the votes of some citizens to the benefit of other citizens by drawing districts based on total population, including those who are residing in this country unlawfully and are therefore not part of the body politic. For example, the Supreme Court held in Reynolds v. Sims that the Fourteenth Amendment’s Equal Protection Clause requires voting districts to be drawn so “that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” At the time, there were no significant difference among the ratios of total population, citizen population, and voter population. Opinions in other cases similarly relied on voter population rather than total population when considering equal protection. Total population includes both citizens and non-citizens, even non-citizens who are present illegally in the United States, giving states good reason to fashion districts based on equal numbers of citizen-voters only, not total populations.

As identified in the Declaration of Independence, “the people” give their consent to be governed, a necessary contract for the legitimacy of government in the United States. A part of the citizen’s consent to representational government is the right to one-person, one-vote. In order for citizens to protect their right to vote, non-citizens are excluded from voting. The petitioners have the right and obligation to maintain the integrity of their vote by preventing the dilution of their vote by those who are non-citizens.

The Constitution states in the preamble, “We the People of the United States.” The Founders were specific in the Constitution to not include Indians and slaves in the definition of “the people.” Indians were not considered members of the body politic because they held allegiance to their tribal governments. They were not taxed and were excluded from the apportionment of representation. Any Indian who chose to join the body politic was then taxed and counted as a part of the population for representation. Only those who are committed to the body politic count toward the apportionment of representation. The United States government is held accountable to the needs of the citizens through representation, not to the needs of non-citizens.

Additionally, the Civil War Amendments gave protection to “citizens,” recognizing the importance of membership in the body politic for the exercise of political rights. The Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments all recognized citizenship of the United States as a qualification for voting rights. The Fourteenth Amendment makes a distinction between “citizen” and “person,” stating in its first sentence, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” As this Court wrote in Foley v. Connelie, 435 U.S. 291 1978, those who are aliens “have no direct voice in the political process.” Clearly there is a difference between those who simply reside in the United States and those who are citizens, and that difference is primarily the citizens’ membership in the body politic and thus their legitimate participation in the political process. The right to an equal, undiluted vote is reserved for the citizens of the United States. Therefore, the states should base the measurement of districts on citizens or eligible voters, not on total population.

Final Outcome

The Supreme Court unanimously ruled that the one person, one vote principle of the Equal Protection Clause allows a state to design its own legislative districts based on total population, contrary to CCJ’s argument. Constitutional history, judicial precedent, and consistent state practice all demonstrate that creating legislative districts based on total population is consistent with the Equal Protection Clause. Indeed, all of the states have used the metric, the Supreme Court noted.