In Evenwel v. Abbott, decided yesterday, the Supreme Court unanimously held that states are not required to use voter population, rather than total population, when apportioning state legislative districts. Justice Thomas has an outstanding originalist concurrence in the judgment. From the introduction:
I write separately because this Court has never provided a sound basis for the one-person, one-vote principle. For 50 years, the Court has struggled to define what right that principle protects. Many of our precedents suggest that it protects the right of eligible voters to cast votes that receive equal weight. Despite that frequent explanation, our precedents often conclude that the Equal Protection Clause is satisfied when all individuals within a district— voters or not—have an equal share of representation. The majority today concedes that our cases have not produced a clear answer on this point. See ante, at 16.
In my view, the majority has failed to provide a sound basis for the one-person, one-vote principle because no such basis exists. The Constitution does not prescribe any one basis for apportionment within States. 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. The majority should recognize the futility of choosing only one of these options. The Constitution leaves the choice to the people alone— not to this Court.
And from later in the opinion:
As the Framers understood, designing a government to fulfill the conflicting tasks of respecting the fundamental equality of persons while promoting the common good requires making incommensurable tradeoffs. For this reason, they did not attempt to restrict the States to one form of government.
Instead, the Constitution broadly required that the States maintain a “Republican Form of Government.” Art. IV, §4. But the Framers otherwise left it to States to make tradeoffs and reconcile the competing goals.
Republican governments promote the common good by placing power in the hands of the people, while curtailing the majority’s ability to invade the minority’s fundamental rights. The Framers recognized that there is no universal formula for accomplishing these goals. At the framing, many state legislatures were bicameral, often reflecting multiple theories of representation. Only “[s]ix of the original thirteen states based representation in both houses of their state legislatures on population.” Hayden, The False Promise of One Person, One Vote, 102 Mich. L. Rev. 213, 218 (2003). In most States, it was common to base representation, at least in part, on the State’s political subdivisions, even if those subdivisions varied heavily in their populations. Wood 171; Baker, 369 U. S., at 307–308 (Frankfurter, J., dissenting).
Reflecting this history, the Constitution continued to afford States significant leeway in structuring their “Republican” governments. At the framing, “republican” referred to “[p]lacing the government in the people,” and a “republick” was a “state in which the power is lodged in more than one.” S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Federalist No. 39, at 251 (Madison) (“[W]e may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour”). By requiring the States to have republican governments, the Constitution prohibited them from having monarchies and aristocracies. See id., No. 43, at 291. Some would argue that the Constitution also prohibited States from adopting direct democracies. Compare Wood 222–226 (“For most constitution-makers in 1776, republicanism was not equated with democracy”) with A. Amar, America’s Constitution: A Biography 276– 281 (2005) (arguing that the provision prohibited monarchies and aristocracies but not direct democracy); see also The Federalist No. 10, at 62 (Madison) (distinguishing a “democracy” and a “republic”); id., No. 14, at 83–84 (same).
Beyond that, however, the Constitution left matters open for the people of the States to decide. The Constitution says nothing about what type of republican government the States must follow. When the Framers wanted to deny powers to state governments, they did so explicitly. See, e.g., Art. I, §10, cl. 1 (“No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts”).
None of the Reconstruction Amendments changed the original understanding of republican government. Those Amendments brought blacks within the existing American political community. The Fourteenth Amendment pressured States to adopt universal male suffrage by reducing a noncomplying State’s representation in Congress. Amdt. 14, §2. And the Fifteenth Amendment prohibited restricting the right of suffrage based on race. Amdt. 15, §1. That is as far as those Amendments went. As Justice Harlan explained in Reynolds, neither Amendment provides a theory of how much “weight” a vote must receive, nor do they require a State to apportion both Houses of their legislature solely on a population basis. See 377 U. S., at 595–608 (dissenting opinion). And JUSTICE ALITO quite convincingly demonstrates why the majority errs by reading a theory of equal representation into the apportionment provision in §2 of the Fourteenth Amendment. See post, at 8–13 (opinion concurring in judgment).
This all sounds right to me. Since the Court made up the one-person-one-vote standard (see here from Earl Maltz), further refinement of its requirements would be further making things up. The better originalist result is to leave implementation to the states.
Justice Alito also has an originalist concurrence in the judgment. The majority opinion (by Justice Ginsburg) is also heavily originalist-oriented, though pointing toward somewhat different conclusions. (So much for the death of originalism).
At SCOTUSblog, Lyle Denniston speculates that the Court had four, but not five, votes for a rule that required states to use total population (rather than just giving them the option):
The ruling’s bottom line was unanimous, but the main opinion [by Justice Ginsburg] bore many signs that its warm embrace of the theory of equality of representation had to be qualified by leaving the states with at least the appearance of the power of choice, to hold together six solid votes.
Two of the eight Justices were clearly not satisfied with the rhetoric and some of the implications of Justice Ginsburg’s opinion, and only joined in the outcome. Those were Justices Samuel A. Alito, Jr., and Clarence Thomas, each of whom wrote separately. Thomas also joined most of Alito’s opinion.
Had Justice Ginsburg not held five colleagues in support of what her opinion actually said in the end, two — perhaps Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy — might have abandoned the common result. The result then might have been that the Court would have split four to four, settling nothing and releasing no opinion at all while leaving intact a three-judge federal district court’s ruling that Texas had the authority to base its state legislative seats on a division of the total population of Texas.
If true (and it sounds plausible), that seems like evidence in favor of the theory (suggested by John McGinnis) that an 8-member Court has some substantial benefits. The Court is likely to want to avoid 4-4 splits, and thus to seek compromise and avoid sweeping opinions. Thus the even number of Justices constrains the Court's power -- perhaps a useful check, rather than an impediment.
UPDATE: Josh Blackman has two great posts on Evenwal, here on Justice Thomas' dissent, and here on the exchanges between Justice Ginsburg and Justice Alito on the framers' ideas. From the latter:
In Evenwel, there is a fascinating back-and-forth between Justice Ginsburg and Justice Alito over how to understand actions taken by the framers of the Constitution in 1787, and the framers of the 14th Amendment in 1866. In short, Justice Ginsburg looks to this history for evidence that the framers in both periods favored representation based on total population, rather than on the voting population. From this, she bolsters the principle of “one person, one vote,” a doctrine that lacked any legitimate originalist pedigree when introduced in the 1960s.
Justice Alito disputes any effort to derive an equal representation theory, because the framers at both of these critical junctures of American history were not concerned with theories–they were concerned with “raw political power.”
Ilya Somin has further thoughts on Evenwel here.
FURTHER UPDATE: At Balkinization, David Gans celebrates Justice Ginsburg's opinion: Counting All Persons is the “Theory of the Constitution” When It Comes to Representation. In part:
Drawing extensively on the historical material laid out in CAC’s brief, Justice Ginsburg’s opinion showed that the Constitution’s Framers—both at the Founding and after the Civil War—created an inclusive democracy founded on the idea that all persons—whether or not they have the right to vote—deserve representation. As we continue to celebrate the 150th anniversary of America’s Second Founding this year, Justice Ginsburg’s opinion is an important reminder that the Fourteenth Amendment helps to ensure, as Lincoln promised at Gettysburg, a “government of the people, by the people, and for the people.” As Evenwel makes clear, our foundational constitutional principles call for counting all persons.
Justice Ginsburg’s opinion shone a light on a long forgotten aspect of the Fourteenth Amendment: the Framers’ decision to reaffirm total representation as the basis for apportioning representatives in Congress. As Ginsburg showed, the Framers debated questions of representation at great length, choosing to reaffirm the total population, because, in the words of Senator Jacob Howard, it “is the safest and most secure principle upon which the government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.” As Justice Ginsburg’s opinion made clear, the Framers of the Fourteenth Amendment refused to countenance the exclusion from representation of children, women and others not eligible to vote. The “theory of the Constitution” when it comes to representation is that all persons deserve to be counted.