One Person, One Vote and the Supreme Court

Today, the Supreme Court unanimously held that states were not required to use voters rather than total population as the denominator when apportioning legislatures. But a big question — whether states can apportion by voters, and hence substantially dilute minority representation — remains outstanding. Meanwhile, Clarence Thomas explicitly argues that Baker v. Carr and its progeny — which Earl Warren considered his Court’s most important decisions, Brown included — were wrongly decided:

Samuel Alito, the preeminent strategic mind among the conservatives on the Supreme Court, drew a handy road map for any state legislatures that are so inclined. In a concurring opinion, Alito rejected the argument advanced by the Obama administration that the “one person, one vote” standard requires the drawing of legislative districts that are roughly equal in population. Alito called the argument “meretricious.” He claimed that the decision of the framers of the Fourteenth Amendment to apportion the House of Representatives by total population was merely power politics that did not reflect any broader theory of representation. He was quite clear that states should be free to apportion by either total population or voters.

Alito’s concurrence made it apparent that such states would have his support. But he did not go as far as Justice Clarence Thomas, who tackled the “one person, one vote” principle head-on in his own concurrence.

“The Constitution does not prescribe any one basis for apportionment within States,” argued Thomas. “It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government.” According to Thomas, the “Court has never provided a sound basis for the one-person, one-vote principle.”

It’s worth considering the implications of this. When states were given a free hand to apportion legislatures by any method they saw fit, the result was the massive underrepresentation of minority voters. At the time Baker v. Carr was decided, for example, some state legislative districts in Tennessee had ten times the population (and hence, a tenth of the representation) of others. Such malapportionment was a major piece of the Jim Crow apartheid system.

To Thomas, this isn’t an issue. Many of the framers of the Constitution “viewed antidemocratic checks as indispensable to republican government,” Thomas asserted. “And included among the antidemocratic checks were legislatures that deviated from perfect equality of representation.” Thomas is not wrong in his characterization. But this doesn’t mean that we should be applying the democratic theories of political elites that preceded the Fourteenth Amendment by nearly a century when deciding a Fourteenth Amendment case in 2016.

Thomas’s concurrence is almost a perfect expression of the Republican Party circa 2016, as seen in Republican-controlled states like Wisconsin. Representing a dwindling share of the population, Republicans have the choice of trying to broaden their appeal or trying to suppress poor and minority voters. They have generally decided to do the latter, and if this is undemocratic at least two allies on the Supreme Court have said that’s perfectly OK.