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Evenwel v. Abbott

United States Supreme Court

April 4, 2016

SUE EVENWEL, ET AL., APPELLANTS
v.
GREG ABBOTT, GOVERNOR OF TEXAS, ET AL

         Argued: December 8, 2015

          ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

          SYLLABUS

         [136 S.Ct. 1121] [194 L.Ed.2d 292] Under the one-person, one-vote principle, jurisdictions must design legislative districts with equal populations. See Wesberry v. Sanders, 376 U.S. 1, 7-8, [194 L.Ed.2d 293] 84 S.Ct. 526, 11 L.Ed.2d 481, Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506. In the context of state and local legislative districting, States may deviate somewhat from perfect population equality to accommodate traditional districting objectives. Where the maximum population deviation between the largest and smallest district is less than 10%, a state or local legislative map presumptively complies with the one-person, one-vote rule.

         Texas, like all other States, uses total-population numbers from the decennial census when drawing legislative districts. After the 2010 census, Texas adopted a State Senate map that has a maximum total-population deviation of 8.04%, safely within the presumptively permissible 10% range. However, measured by a voter-population baseline -- eligible voters or registered voters--the map's maximum population deviation exceeds 40%. Appellants, who live in Texas Senate districts with particularly large eligible- and registered-voter populations, filed suit against the Texas Governor and Secretary of State. Basing apportionment on total population, appellants contended, dilutes their votes in relation to voters in other Senate districts, in violation of the one-person, one-vote principle of the Equal Protection Clause. Appellants sought an injunction barring use of the existing Senate map in favor of a map that would equalize the voter population in each district. A three-judge District Court dismissed the complaint for failure to state a claim on which relief could be granted.

          Held :

          As constitutional history, precedent, and practice demonstrate, a State or locality may draw its legislative districts based on total population. Pp. 7-19.

         (a) Constitutional history shows that, at the time of the founding, the Framers endorsed allocating House seats to States based on total population. Debating what would become the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats. Retaining the total-population rule, Congress rejected proposals to allocate House seats to States on the basis of voter population. See U.S. Const., Amdt. 14, § 2. The Framers [136 S.Ct. 1122] recognized that use of a total-population baseline served the principle of representational equality. Appellants' voter-population rule is inconsistent with the " theory of the Constitution," Cong. Globe, 39th Cong., 1st Sess., 2766-2767, this Court recognized in Wesberry as underlying not just the method of allocating House seats to States but also the method of apportioning legislative seats within States. Pp. 8-15.

         (b) This Court's past decisions reinforce the conclusion that States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. Appellants assert that language in this Court's precedent supports their view that States should equalize the voter-eligible population of districts. But for every sentence appellants quote, one could respond with a line casting the one-person, one-vote guarantee in terms of equality of representation. See, e.g., Reynolds, 377 U.S. at 560-561, 84 S.Ct. 1362, 12 L.Ed.2d 506. Moreover, from Reynolds on, the Court has consistently looked [194 L.Ed.2d 294] to total-population figures when evaluating whether districting maps violate the Equal Protection Clause by deviating impermissibly from perfect population equality. Pp. 15-18.

         (c) Settled practice confirms what constitutional history and prior decisions strongly suggest. Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have long followed. As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible to vote. Nonvoters have an important stake in many policy debates and in receiving constituent services. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation. Pp. 18-19.

         (d) Because constitutional history, precedent, and practice reveal the infirmity of appellants' claim, this Court need not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population. P. 19.

Affirmed.

         William S. Consovoy argued the cause for appellants.

         Scott A. Keller argued the cause for appellees.

         Ian H. Gershengorn argued the cause for United States, as amicus curiae, by special leave of the court.

         GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined except as to Part III-B.

          OPINION

         [136 S.Ct. 1123] GINSBURG, JUSTICE

         Texas, like all other States, draws its legislative districts on the basis of total population. Plaintiffs-appellants are Texas voters; they challenge this uniform method of districting on the ground that it produces unequal districts when measured by voter-eligible population. Voter-eligible population, not total population, they urge, must be used to ensure that their votes will not be devalued in relation to citizens' votes in other districts. We hold, based on constitutional history, this Court's decisions, and longstanding practice, that a State may draw its legislative districts based on total population.

         I

         A

         This Court long resisted any role in overseeing the process by which States draw legislative districts. " The remedy for unfairness in districting," the Court once held, " is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress." Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946). " Courts ought not to enter this political thicket," as Justice Frankfurter put it. Ibid.

          Judicial abstention left pervasive malapportionment unchecked. In the opening half of the 20th century, there was a massive population shift away [194 L.Ed.2d 295] from rural areas and toward suburban and urban communities. Nevertheless, many States ran elections into the early 1960's based on maps drawn to equalize each district's population as it was composed around 1900. Other States used maps allocating a certain number of legislators to each county regardless of its population. These schemes left many rural districts significantly underpopulated in comparison with urban and suburban districts. But rural legislators who benefited from malapportionment had scant incentive to adopt new maps that might put them out of office.

         The Court confronted this ingrained structural inequality in Baker v. Carr, 369 U.S. 186, 191-192, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). That case presented an equal protection challenge to a Tennessee state-legislative map that had not been redrawn since 1901. See also id., at 192, 82 S.Ct. 691, 7 L.Ed.2d 663 (observing that, in the meantime, there had been " substantial growth and redistribution" of the State's population). Rather than steering clear of the political thicket yet again, the Court held for the first time that malapportionment claims are justiciable. Id., at 237, 82 S.Ct. 691, 7 L.Ed.2d 663 (" We conclude that the complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision." ).

         Although the Court in Baker did not reach the merits of the equal protection claim, Baker 's justiciability ruling set the stage for what came to be known as the one-person, one-vote principle. Just two years after Baker, in Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the Court invalidated Georgia's malapportioned congressional map, under which the population of one congressional district was " two to three times" larger than the population of the others. Relying on Article I, § 2, of the Constitution, the Court required that congressional districts be drawn with equal populations. Id., at 7, 18, 84 S.Ct. 526, 11 L.Ed.2d 481. Later that same Term, in Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Court upheld an equal protection challenge to Alabama's malapportioned state-legislative maps. " [T]he Equal Protection Clause," the Court concluded, " requires that the seats [136 S.Ct. 1124] in both houses of a bicameral state legislature must be apportioned on a population basis." Ibid. Wesberry and Reynolds together instructed that jurisdictions must design both congressional and state-legislative districts with equal populations, and must regularly reapportion districts to prevent malapportionment. [1]

         Over the ensuing decades, the Court has several times elaborated on the scope of the one-person, one-vote rule. States must draw congressional districts with populations as close to perfect equality as possible. See Kirkpatrick v. Preisler, 394 U.S. 526, 530-531, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). But, when drawing state and local legislative districts, jurisdictions are permitted to deviate somewhat from perfect population equality to accommodate traditional districting [194 L.Ed.2d 296] objectives, among them , preserving the integrity of political subdivisions, maintaining communities of interest, and creating geographic compactness. See Brown v. Thomson, 462 U.S. 835, 842-843, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983). Where the maximum population deviation between the largest and smallest district is less than 10%, the Court has held, a state or local legislative map presumptively complies with the one-person, one-vote rule. Ibid. [2] Maximum deviations above 10% are presumptively impermissible. Ibid. See also Mahan v. Howell, 410 U.S. 315, 329, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973) (approving a state-legislative map with maximum population deviation of 16% to accommodate the State's interest in " maintaining the integrity of political subdivision lines," but cautioning that this deviation " may well approach tolerable limits" ).

         In contrast to repeated disputes over the permissibility of deviating from perfect population equality, little controversy has centered on the population base jurisdictions must equalize. On rare occasions, jurisdictions have relied on the registered-voter or voter-eligible populations of districts. See Burns v. Richardson, 384 U.S. 73, 93-94, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) (holding Hawaii could use a registered-voter population base because of " Hawaii's special population problems" -- in particular, its substantial temporary military population). But, in the overwhelming majority of cases, jurisdictions have equalized total population, as measured by the decennial census. Today, all States use total-population numbers from the census when designing congressional and state-legislative districts, and only seven States adjust those census numbers in any meaningful way. [3]

         [136 S.Ct. 1125] B

         Appellants challenge that consensus. After the 2010 census, Texas redrew its State Senate districts using a total-population baseline. At the time, Texas was subject to the preclearance requirements of § 5 of the Voting Rights Act of 1965. 52 U.S.C. § 10304 (requiring jurisdictions to receive approval from the U.S. Department of Justice or the U.S. District Court for [194 L.Ed.2d 297] the District of Columbia before implementing certain voting changes). Once it became clear that the new Senate map, S148, would not receive preclearance in advance of the 2012 elections, the U.S. District Court for the Western District of Texas drew an interim Senate map, S164, which also equalized the total population of each district. See Davis v. Perry, No. SA-11-CV-788 (Nov. 23, 2011). [4] On direct appeal, this Court observed that the District Court had failed to " take guidance from the State's recently enacted plan in drafting an interim plan," and therefore vacated the District Court's map. Perry v. Perez, 565 U.S. ___, ___, ___-___, 132 S.Ct. 934, 181 L.Ed.2d 900, 905, 907-908 (2012) ( per curiam ).

         The District Court, on remand, again used census data to draw districts so that each included roughly the same size total population. Texas used this new interim map, S172, in the 2012 elections, and, in 2013, the Texas Legislature adopted S172 as the permanent Senate map. See App. to Brief for Texas Senate Hispanic Caucus et al. as Amici Curiae 5 (reproducing the current Senate map). The permanent map's maximum total-population deviation is 8.04%, safely within the presumptively permissible 10% range. But measured by a voter-population baseline--eligible voters or registered voters--the map's maximum population deviation exceeds 40%.

         Appellants Sue Evenwel and Edward Pfenninger live in Texas Senate districts (one and four, respectively) with particularly large eligible- and registered-voter populations. Contending that basing apportionment on total population dilutes their votes in relation to voters in other Senate districts, in violation of the one-person, one-vote principle of the Equal Protection Clause, [5] appellants filed suit in the U.S. District Court for the Western District of Texas. They named as defendants the Governor and Secretary of State of Texas, and sought a permanent injunction barring use of the existing Senate map in favor of a map that would equalize the voter population in each district.

         The case was referred to a three-judge District Court for hearing and decision. See 28 U.S.C. § 2284(a); Shapiro v. [136 S.Ct. 1126] McManus, 577 U.S. ___, ___-___, 136 S.Ct. 450, 193 L.Ed.2d 279, 283 (2015). That court dismissed the complaint for failure to state a claim on which relief could be granted. Appellants, the District Court explained, " rel[y] upon a theory never before accepted by the Supreme Court or any circuit court: that the metric of apportionment employed by Texas (total population) results in an [194 L.Ed.2d 298] unconstitutional apportionment because it does not achieve equality as measured by Plaintiffs' chosen metric -- voter population." App. to Juris. Statement 9a. Decisions of this Court, the District Court concluded, permit jurisdictions to use any neutral, nondiscriminatory population baseline, including total population, when drawing state and local legislative districts. Id., at 13a-14a. [6]

         We noted probable jurisdiction, 575 U.S. ___, 135 S.Ct. 2349, 192 L.Ed.2d 143 (2015), and now affirm.

         II

         The parties and the United States advance different positions in this case. As they did before the District Court, appellants insist that the Equal Protection Clause requires jurisdictions to draw state and local legislative districts with equal voter-eligible populations, thus protecting " voter equality," i.e., " the right of eligible voters to an equal vote." Brief for Appellants 14. [7] To comply with their proposed rule, appellants suggest, jurisdictions should design districts based on citizen-voting-age-population (CVAP) data from the Census Bureau's American Community Survey (ACS), an annual statistical sample of the U.S. population. Texas responds that jurisdictions may, consistent with the Equal Protection Clause, design districts using any population baseline -- including total population and voter-eligible population -- so long as the choice is rational and not invidiously discriminatory. Although its use of total-population data from the census was permissible, Texas therefore argues, it could have used ACS CVAP data instead. Sharing Texas' position that the Equal Protection Clause does not mandate use of voter-eligible population, the United States urges us not to address Texas' separate assertion that the Constitution allows States to use alternative population baselines, including voter-eligible population. Equalizing total population, the United States maintains, vindicates the principle of representational equality by " ensur[ing] that the voters in each district have the power to elect a representative who represents the same number of constituents as all other representatives." Brief for United States as Amicus Curiae 5.

         In agreement with Texas and the United States, we reject appellants' attempt to locate a voter-equality mandate in the Equal Protection Clause. As history, precedent, and practice demonstrate, it is plainly permissible for jurisdictions to [136 S.Ct. 1127] measure equalization by the total population of state and local legislative districts.

         A

         We begin with constitutional history. [194 L.Ed.2d 299] At the time of the founding, the Framers confronted a question analogous to the one at issue here: On what basis should congressional districts be allocated to States? The Framers' solution, now known as the Great Compromise, was to provide each State the same number of seats in the Senate, and to allocate House seats based on States' total populations. " Representatives and direct Taxes," they wrote, " shall be apportioned among the several States which may be included within this Union, according to their respective Numbers." U.S. Const., Art. I, § 2, cl. 3 (emphasis added). " It is a fundamental principle of the proposed constitution," James Madison explained in the Federalist Papers, " that as the aggregate number of representatives allotted to the several states, is to be . . . founded on the aggregate number of inhabitants; so, the right of choosing this allotted number in each state, is to be exercised by such part of the inhabitants, as the state itself may designate." The Federalist No. 54, p. 284 (G. Carey & J. McClellan eds. 2001). In other words, the basis of representation in the House was to include all inhabitants--although slaves were counted as only three-fifths of a person--even though States remained free to deny many of those inhabitants the right to participate in the selection of their representatives. [8] Endorsing apportionment based on total population, Alexander Hamilton declared: " There can be no truer principle than this--that every individual of the community at large has an equal right to the protection of government." 1 Records of the Federal Convention of 1787, p. 473 (M. Farrand ed. 1911). [9]

         When debating what is now the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats. Concerned that Southern States would not willingly enfranchise freed slaves, and aware that " a slave's freedom could swell his state's population for purposes of representation in the House by one person, rather than only three-fifths," the Framers of the Fourteenth Amendment considered at length the possibility of allocating House seats to States on the basis of voter population. J. [136 S.Ct. 1128] Sneed, Footprints on the Rocks of the Mountain: An Account of [194 L.Ed.2d 300] the Enactment of the Fourteenth Amendment 28 (1997). See also id., at 35 (" [T]he apportionment issue consumed more time in the Fourteenth Amendment debates than did any other topic." ).

         In December 1865, Thaddeus Stevens, a leader of the Radical Republicans, introduced a constitutional amendment that would have allocated House seats to States " according to their respective legal voters" ; in addition, the proposed amendment mandated that " [a] true census of the legal voters shall be taken at the same time with the regular census." Cong. Globe, 39th Cong., 1st Sess., 10 (1866). Supporters of apportionment based on voter population employed the same voter-equality reasoning that appellants now echo. See, e.g., id., at 380 (remarks of Rep. Orth) (" [T]he true principle of representation in Congress is that voters alone should form the basis, and that each voter should have equal political weight in our Government. . . ." ); id., at 404 (remarks of Rep. Lawrence) (use of total population " disregards the fundamental idea of all just representation, that every voter should be equal in political power all over the Union" ).

         Voter-based apportionment proponents encountered fierce resistance from proponents of total-population apportionment. Much of the opposition was grounded in the principle of representational equality. " As an abstract proposition," argued Representative James G. Blaine, a leading critic of allocating House seats based on voter population, " no one will deny that population is the true basis of representation; for women, children, and other non-voting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot." Id., at 141. See also id., at 358 (remarks of Rep. Conkling) (arguing that use of a voter-population basis " would shut out four fifths of the citizens of the country--women and children, who are citizens, who are taxed, and who are, and always have been, represented" ); id., at 434 (remarks of Rep. Ward) (" [W]hat becomes of that large class of non-voting tax-payers that are found in every section? Are they in no matter to be represented? They certainly should be enumerated in making up the whole number of those entitled to a representative." ).

         The product of these debates was § 2 of the Fourteenth Amendment, which retained total population as the congressional apportionment base. See U.S. Const., Amdt. 14, § 2 ( " Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." ). Introducing the final version of the Amendment on the Senate floor, Senator Jacob Howard explained:

" [The] basis of representation is numbers . . . ; that is, the whole population except untaxed Indians and persons excluded by the State laws for rebellion or other crime. . . . The committee adopted numbers as the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed, that the basis of representation should depend upon numbers; and such, I think, after all, is the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the [194 L.Ed.2d 301] theory of the Constitution." Cong. Globe, 39th Cong., 1st Sess., 2766-2767 (1866).

         Appellants ask us to find in the Fourteenth Amendment's Equal Protection Clause a rule inconsistent with this " theory of the Constitution." But, as the Court recognized in Wesberry, this theory underlies [136 S.Ct. 1129] not just the method of allocating House seats to States; it applies as well to the method of apportioning legislative seats within States. " The debates at the [Constitutional] Convention," the Court explained, " make at least one fact abundantly clear: that when the delegates agreed that the House should represent 'people,' they intended that in allocating Congressmen the number assigned to each state should be determined solely by the number of inhabitants." 376 U.S. at 13, 84 S.Ct. 526, 11 L.Ed.2d 481. " While it may not be possible to draw congressional districts with mathematical precision," the Court acknowledged, " that is no excuse for ignoring our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives." Id., at 18, 84 S.Ct. 526, 11 L.Ed.2d 481 (emphasis added). It cannot be that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis.

         Cordoning off the constitutional history of congressional districting, appellants stress two points. [10] First, they draw a distinction between allocating seats to States, and apportioning seats within States. The Framers selected total population for the former, appellants and their amici argue, because of federalism concerns inapposite to intrastate districting. These concerns included the perceived risk that a voter-population base might encourage States to expand the franchise unwisely, and the hope that a total-population base might counter States' incentive to undercount their populations, thereby reducing their share of direct taxes. Wesberry, however, rejected the distinction appellants now press. See supra, at 12. Even without the weight of Wesberry, we would find appellants' distinction unconvincing. One can accept that federalism--or, as JUSTICE ALITO emphasizes, partisan and regional political advantage, see post, at 6-13--figured in the Framers' selection of total population as the basis for allocating congressional seats. Even so, it remains beyond doubt that the principle of representational equality figured prominently in the decision to count people, whether or not they qualify as voters. [11]

          [194 L.Ed.2d 302] Second, appellants and JUSTICE ALITO urge, see post, at 5-6, the Court has typically refused to analogize to features of the federal electoral system-- [136 S.Ct. 1130] here, the constitutional scheme governing congressional apportionment -- when considering challenges to state and local election laws. True, in Reynolds, the Court rejected Alabama's argument that it had permissibly modeled its State Senate apportionment scheme--one Senator for each county -- on the United States Senate. " [T]he federal analogy," the Court explained, " [is] inapposite and irrelevant to state legislative districting schemes" because " [t]he system of representation in the two Houses of the Federal Congress" arose " from unique historical circumstances." 377 U.S. at 573-574, 84 S.Ct. 1362, 12 L.Ed.2d 506. Likewise, in Gray v. Sanders, 372 U.S. 368, 371-372, 378, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), Georgia unsuccessfully attempted to defend, by analogy to the electoral college, its scheme of assigning a certain number of " units" to the winner of each county in statewide elections.

          Reynolds and Gray, however, involved features of the federal electoral system that contravene the principles of both voter and representational equality to favor interests that have no relevance outside the federal context. Senate seats were allocated to States on an equal basis to respect state sovereignty and increase the odds that the smaller States would ratify the Constitution. See Wesberry, 376 U.S. at 9-13, 84 S.Ct. 526, 11 L.Ed.2d 481 (describing the history of the Great Compromise). See also Reynolds, 377 U.S. at 575, 84 S.Ct. 1362, 12 L.Ed.2d 506 (" Political subdivisions of States--counties, cities, or whatever -- never were and never have been considered as sovereign entities. . . . The relationship of the States to the Federal Government could hardly be less analogous." ). " The [Electoral] College was created to permit the most knowledge-able members of the community to choose the executive of a nation whose continental dimensions were thought to preclude an informed choice by the citizenry at large." Williams v. Rhodes, 393 U.S. 23, 43-44, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (Harlan, J., concurring in result). See also Gray, 372 U.S. at 378, 83 S.Ct. 801, 9 L.Ed.2d 821 (" The inclusion of the electoral college in the Constitution, as the result of specific historical concerns, validated the collegiate principle despite its inherent numerical inequality." (footnote omitted)). By contrast, as earlier developed, the constitutional scheme for congressional apportionment rests in part on the same representational concerns that exist regarding state and local legislative districting. The Framers' answer to the apportionment question in the congressional context therefore undermines [194 L.Ed.2d 303] appellants' contention that districts must be based on voter population.

         B

          Consistent with constitutional history, this Court's past decisions reinforce the conclusion that States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. Quoting language from those decisions that, in appellants' view, supports the principle of equal voting power -- and emphasizing the phrase " one-person, one-vote" -- appellants contend that the Court had in mind, and constantly meant, that States should equalize the voter-eligible population of districts. See Reynolds, 377 U.S. at 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (" [A]n individual's right to vote for State legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living on other parts of the State." ); Gray, 372 U.S. at 379-380, 83 S.Ct. 801, 9 L.Ed.2d 821 (" The concept of 'we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications." ). See also Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U.S. 50, 56, 90 S.Ct. 791, [136 S.Ct. 1131] 25 L.Ed.2d 45 (1970) (" [W]hen members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials." ). Appellants, however, extract far too much from selectively chosen language and the " one-person, one-vote" slogan.

         For every sentence appellants quote from the Court's opinions, one could respond with a line casting the one-person, one-vote guarantee in terms of equality of representation, not voter equality. In Reynolds, for instance, the Court described " the fundamental principle of representative government in this country" as " one of equal representation for equal numbers of people." 377 U.S. at 560-561, 84 S.Ct. 1362, 12 L.Ed.2d 506. See also Davis v. Bandemer, 478 U.S. 109, 123, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (" [I]n formulating the one person, one vote formula, the Court characterized the question posed by election districts of disparate size as an issue of fair representation." ); Reynolds, 377 U.S. at 563, 84 S.Ct. 1362, 12 L.Ed.2d 506 (rejecting state districting schemes that " give the same number of representatives to unequal numbers of constituents" ). And the Court has suggested, repeatedly, that districting based on total population serves both the State's interest in preventing vote dilution and its interest in ensuring equality of representation. See Board of Estimate of City of New York v. Morris, 489 U.S. 688, 693-694, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989) (" If districts of widely unequal population elect an equal number of representatives, the voting power of each citizen in the larger constituencies is debased and the citizens in those districts have a smaller share of representation than do those in the smaller districts." ). See also Kirkpatrick, 394 U.S. at 531, 89 S.Ct. 1225, 22 L.Ed.2d 519 (recognizing in a congressional-districting case that " [e]qual representation for equal numbers of people [194 L.Ed.2d 304] is a principle designed to prevent debasement of voting power and diminution of access to elected representatives" ). [12]

         Moreover, from Reynolds on, the Court has consistently looked to total-population figures when evaluating whether districting maps violate the Equal Protection Clause by deviating impermissibly from perfect population equality. See Brief for Appellees 29-31 (collecting cases brought under the Equal Protection Clause). See also id., at 31, n. 9 (collecting congressional-districting cases). Appellants point to no instance in which the Court has determined the permissibility of deviation based on eligible- or registered-voter data. It would hardly make sense for the Court to have mandated voter equality sub silentio and then used a total-population baseline to evaluate compliance with that rule. More likely, we think, the Court has always assumed the permissibility of drawing districts to equalize total population.

         " In the 1960s," appellants counter, " the distribution of the voting population generally did not deviate from the distribution of total population to the degree necessary to raise this issue." Brief for Appellants 27. To support this assertion, appellants cite only a District Court decision, which found no significant deviation in the distribution of voter and total population in " densely populated areas of New York State." WMCA, Inc. v. Lomenzo, 238 F.Supp. 916, 925 [136 S.Ct. 1132] (SDNY), aff'd, 382 U.S. 4, 86 S.Ct. 24, 15 L.Ed.2d 2 (1965) ( per curiam ). Had this Court assumed such equivalence on a national scale, it likely would have said as much. [13] Instead, in Gaffney v. Cummings, 412 U.S. 735, 746-747, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), the Court acknowledged that voters may be distributed unevenly within jurisdictions. " [I]f it is the weight of a person's vote that matters," the Court observed, then " total population -- even if stable and accurately taken--may not actually reflect that body of voters whose votes must be counted and weighed for the purposes of reapportionment, because 'census persons' are not voters." Id., at 746, 93 S.Ct. 2321, 37 L.Ed.2d 298. Nonetheless, the Court in Gaffney recognized that the one-person, one-vote rule is designed to facilitate " [f ]air and effective representation," id., at 748, 93 S.Ct. 2321, 37 L.Ed.2d 298, and evaluated compliance with the rule based on total population alone, id., at 750, 93 S.Ct. 2321, 37 L.Ed.2d 298.

         C

         What constitutional history and our prior decisions strongly suggest, settled practice confirms. Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries. Appellants have shown no reason for the Court to [194 L.Ed.2d 305] disturb this longstanding use of total population. See Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 678, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (" unbroken practice" followed " openly and by affirmative state action, not covertly or by state inaction, is not something to be lightly cast aside" ). See also Burson v. Freeman, 504 U.S. 191, 203-206, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (plurality opinion) (upholding a law limiting campaigning in areas around polling places in part because all 50 States maintain such laws, so there is a " widespread and time-tested consensus" that legislation of this order serves important state interests). As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. See supra, at 8-12. Nonvoters have an important stake in many policy debates -- children, their parents, even their grandparents, for example, have a stake in a strong public-education system -- and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation. See McCormick v. United States, 500 U.S. 257, 272, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991) (" Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator." ). [14]

         In sum, the rule appellants urge has no mooring in the Equal Protection Clause. The Texas Senate map, we therefore conclude, complies with the requirements of the one-person, one-vote principle. [15] Because [136 S.Ct. 1133] history, precedent, and practice suffice to reveal the infirmity of appellants' claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.

         * ...


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