We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 32, in which Slate’s Dahlia Lithwick discusses Evenwel v. Abbott, a case that could upend that principle of “one person, one vote.” The plaintiffs argue that the current system privileges voters from districts with large numbers of ineligible voters. They are calling for a brand-new approach to apportionment based not on overall population but rather on the population of eligible voters. Attorney Andrew Grossman filed an amicus brief supporting the plaintiffs and joins us on this episode to explain the plaintiffs’ case. And Stanford Law Professor Nathaniel Persily, who filed a brief on the other side of the case, also joins us to explain why he thinks the case could have grave implications.
Finally, we listen back to a few highlights from the week’s other big case, Fisher v. University of Texas at Austin, including Justice Antonin Scalia’s remark: “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”
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We’re a little delayed in posting this episode’s transcript—apologies. This is a lightly edited transcript and may differ slightly from the edited podcast.
Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the U.S. Supreme Court. I am Dahlia Lithwick, Slate’s Supreme Court correspondent. And this week, the court heard—you may have heard about it—some big cases, among them Fisher v. University of Texas. That was the big affirmative action challenge that we discussed last episode. We’re going to talk a little bit later in the show about the Fisher case, but this week, we wanted to focus the show principally on a voting rights case, Evenwel v. Abbott, also coming out of Texas. It was argued Tuesday at the court.
I should just flag for you, because it’s interesting, that both Fisher and the Evenwel case were brought by the same group, the Project on Fair Representation, headed up by Edward Blum in Texas. He actually doesn’t talk to broadcast media all that much, and so we’ve brought someone else who is closely involved in the case onto the show. It’s a really fascinating week to see what a tiny legal project can do when they want to have a big, big impact at the court.
So, let’s turn for a minute to the voting rights case, Evenwel v. Abbott. In its simplest terms, this is a challenge to the “one person, one vote” principle that has long held that states—and please remember this case is about state apportionment, not the House of Representatives—but states draw their legislative districts using voters to count the size of the district.
Now the challengers in Evenwel want to count voters, not population, because they’re concerned that the census tends to over-count all sorts of people, like children, disenfranchised felons, aliens, and that for the purpose of counting districts, counting all those nonvoters dilutes their vote.
Here to help us understand the case that I may have made sound very complicated is Andrew Grossman. He practices appellate and constitutional litigation in the DC offices of BakerHostetler. Andrew’s written widely on issues of constitutional law and finance. He has been a frequent adviser to Congress on complex legal and policy issues, and most importantly, for our purposes, he filed an amicus brief in the Evenwel case on behalf of Project 21. So, Andrew Grossman, welcome to Amicus.
Andrew Grossman: Thank you for having me.
Lithwick: Now have I laid out the basic principle of this case, or did I mangle it so badly in my introduction that you want to re-explain what the principle is in Evenwel?
Grossman: I think you’ve got the principle right, but I think a tiny amount of historical background is in order—which is, when the courts started focusing on the “one person, one vote” doctrine, which is what’s at issue here, it was back in the early 1960s.
Whether you looked, at that time, at raw population or at voter population, the results in terms of drawing district lines would be about the same, because there weren’t very many aliens in the country. That’s undocumented or even documented. We had a period of about 40 years of very restrictive immigration, and so it didn’t really matter which population you looked at in general, whereas in the time since then, since those populations have grown, there have been these enormous disparities between districts, in terms of the number of voters—which, of course, affects vote weight.
Lithwick: So now, tell us, if you would, before we get too deep in the weeds, about Sue Evenwel and Edward Pfenninger. They’re the two plaintiffs in this case, and they would illustrate your point about how the way we apportion seats really, really implicates people who live in jurisdictions that are not equal, if you’re counting by voter instead of population.
Grossman: Right. If you look at these particular plaintiffs, what’s happened here is that the two of them live in relatively rural districts in the State of Texas that contain approximately 500,000 voters each—a little over that. By comparison, the State Senate district that encompasses Brownville—which is right on the tip of the state, up against the Mexican border—has only 372,000 potential voters, even while all those three districts have the same raw population, approximately.
When you think about it, the math is pretty straightforward. A Senate vote in Brownsville is worth about 1.5 times the votes cast by Ms. Evenwel and Mr. Pfenninger, and that’s their complaint.
Lithwick: So just for purely, purely clarification purposes—because, again, I think this sounds complicated, really—the issue is that since the 1960s, since Reynolds v. Sims, Baker v. Carr in this line of cases that said “one person, one vote” means we apportion districts based on population. The claim is, I’m Sue Evenwel; my vote is diluted, because if you’re counting all these nonvoters. Whether they’re disenfranchised felons, or aliens who are in the jurisdiction but don’t vote, or children, my vote is diluted when it is counted as against all those people who don’t vote.
Grossman: That’s exactly right. It’s interesting, because it’s the same way we look at voting dilution in any other context, whether you’re talking about race-based voting dilution or anything else. It just happened that over a period of time, this particular type of dilution has grown quite considerably in some districts.
Lithwick: So, let’s turn to the argument on Tuesday in Evenwel. As we like to do on this show, I want to play for you a little bit of Sonia Sotomayor, who was at that moment pressing William Consovoy, arguing the case on behalf of Evenwel on what the interest is here—whether it’s an interest in representation or an interest in voting. So, let’s listen to that.
Sonia Sotomayor: The problem is that what you’re forgetting is the dual interest. There is a voting interest, but there’s also a representation interest. And it’s that which has led us to accept the total population base, because states have to have some discretion to figure out who should be having the representational voice.
Lithwick: So, Andrew, can you help us understand, as she frames this, this isn’t just a case about voters; this is a case about who lives in a district, and whether or not they have the same access to their representatives. Her argument is—and this is something that Justice Breyer and Justice Kagan bring up later in argument, as well—no, no, no, no, we don’t allocate districts based on only who votes, because even if you’re a disenfranchised felon, even if you are an alien in the jurisdiction, you need to have access to your representative.
What’s your answer to that?
Grossman: Well, I mean, when you get to the heart of this litigation, what you’re really focusing on is the nature of representation in our democratic republic. It’s a very weighty question. You’ve got these two, in some instances, competing ideas. One of which is equal vote weight—that every person who casts a vote, that that vote should have about the same weight as every other person who casts a vote. But the other one—it’s this idea of equal representation, that each person is somehow entitled to a similar slice of, I suppose, the legislator’s attentions or their abilities.
The problem is, you’ve got this disparity that goes right to the very genesis of the “one person, one vote” line of cases, where in every instance, the court was always explaining what it was doing in terms of vote weight. In general, that was the rationale for the cases. But at the same time, the remedy in all of these cases was to equalize raw population, which is something that looks a little bit more like equal representation. The problem is that when you go down this rabbit hole of equal representation, there really isn’t a lot there.
There really aren’t very many cases or doctrines explaining what the rationale of this is. There aren’t any cases, for example, saying that if you petition your legislator, that you have a right for the legislator to pay attention to that or something of that nature. That kind of claim simply doesn’t exist. When you look at voting rights cases, even “one person, one vote” cases, it’s been commonly recognized that people who aren’t voters, who are disqualified from being voters, don’t have a right to bring a “one person, one vote” case; only a voter can do that. So, that looks more like vote weight.
So, it’s kind of this philosophical grounds that the courts have simply never gotten to. It’s never really been recognized.
Lithwick: So, the way this case plays out—correct me if I’m wrong about this, Andrew—but the way this case plays out, we’ve got this very, very arcane, high-minded argument—the one you and I are having right now—is this about representation? Is this about voting? Then underneath it, there’s this very partisan political valence, right? I mean, this case gets spun in the media as, this is a case about deliberately disenfranchising or disempowering urban voters, voters who tend to be minorities, younger voters, and jurisdictions that tend to be full of the kinds of people who don’t tend to vote Republican.
Is that an unfair characterization of the politics surrounding this case—which, by the way, does not get mentioned in the chambers of the Supreme Court—but is that an unreasonable characterization of what the underlying engine of this case is? To reallocate voting power so that rural, more frequently whiter, older voters are regaining power, in terms of apportioning districts?
Grossman: Well, I’m not sure. I agree with you that I think that’s the way the case has been portrayed in a lot of the media. I’m not sure that’s entirely fair, though, for two reasons. The first is that just from a numbers basis, the results—to the extent that they can be predicted—are very complicated. We filed a brief on behalf of Project 21, which is an African-American leadership group that looked at intra-city demographics and looked at districting, with respect to things like city council races and sometimes state legislative districts, as they play out within inner cities.
What we realized is that under the current regime, focusing on raw population, African-American communities tend to be a bit shortchanged, because they’re frequently adjacent to Hispanic-predominant communities. Those Hispanic-predominant communities tend to have, relatively speaking, fewer voters per amount of raw population, whereas African-American communities tend to be disproportionately citizens.
So the result is that if you were to switch to a system that paid attention to vote weight, you would see greater African-American voting power in a number of inner cities. We run through this in our briefing—that you can go all across the South and in many border cities, and you can see this same pattern again, and again, and again.
But the second reason is, if you’re talking about political advantage, it’s a very short-term kind of thing. The Heritage Foundation did a panel on the possible implications of this case, and they invited the election analysis, Sean Trende, who’s considered to be one of the foremost sort of statistical gurus—in terms of how you count districts, how you count these votes, and how you divide all these things up.
He looked at it, and he said, if you would ask me to predict the way that this would have an impact 10 years ago, my view would’ve been entirely different from what my view is right now. His view was, in the short term, it would probably help Republicans, but if you look out eight years, if you look out 15 years, it’s impossible to say one way or the other. So anybody who views this as a short-term political case, well, it might have those impacts, but that’s going to be a very short-term thing for a rule that potentially could have a duration of decades or centuries.
Lithwick: Before we close here, I want to just turn briefly to the elephant in the room in this case. I think you would agree—maybe you won’t—that we just don’t have a dataset for voters. No matter how the high-minded, equal-protection argument plays out, there’s no instrument to measure voting population in this country. We have a census. It doesn’t ask if you vote. It doesn’t ask if you’re eligible to vote. We do not have the data from which to draw these new districts. What’s your answer to that?
Grossman: Well, I’m not sure it’s the elephant in the room at all. Now as a practical matter, in this case, you had Texas Solicitor General Scott Keller, who is on the other side of the case. He was arguing against the challengers in this case, and he conceded that in drawing the very maps that are at issue here, the State of Texas used data from the Census Bureau’s American Community Survey (the ACS) and that that data does include voter-based data. They use that for the purpose of complying with the Voting Rights Act.
It wasn’t just Texas. Every state, when they draw their maps, uses that ACS data to ensure that they’re in compliance with Section 2—and in the past, in Section 5—of the Voting Rights Act. I think a number of questions by the chief justice really brought this to light. What the court is focusing on here is gross disparities in voting weight. In other words, the point isn’t to try and equalize everything with a great deal of precision so that every vote is worth to a thousandth of a percent the same as every other vote, because that could be a very difficult thing to do, and it could lead to all sorts of difficulties and strange results—like very strangely-shaped districts and so on.
What the court was looking at was the idea that maybe you maintain the raw population base. In other words, every district still has to have the same population, but the states have to look at, also, in addition, voter population—to the extent it’s necessary to avoid gross disparity—say, anything larger than 20 percent. So, in that instance, you would get rid of the worst and most obnoxious and offensive disparities, while, at the same time not really altering the current system all that much. It would be a modest change, but something that, in terms of the equal protection imperative, would actually do a lot of work.
Lithwick: It’s probably worth saying—I think you might agree with me—that at least Chief Justice John Roberts and Justice Anthony Kennedy seem to be inclined toward a model that was some kind of hybrid, where you count by population, but in response to, you know, what they would call gross or egregious disparities, you’d default to this other system, where you count by voters. Is that correct?
Grossman: Right. Well, I think the idea is, you do both. The interesting thing is—this is really all that the plaintiffs are asking for in the case. They’ve never asked or demanded that the court throw out the raw population basis. But what they did ask is that the court require states to equalize to some extent, to get rid of these gross disparities in vote weight. That’s something that’s pretty consistent with this court’s longstanding “one person, one vote” jurisprudence.
When you get to the end of it, the court’s always looked at vote weight. They’ve always looked at voting rights, and they’ve never demanded absolute precision, because they recognize that when you’re drawing districts, there are lots of other considerations that come into play, aside from just the numbers.
Lithwick: Andrew Grossman practices appellate and constitutional litigation in the DC office of BakerHostetler. He filed an amicus brief on behalf of Project 21 in this case, on the side of Sue Evenwel and the plaintiffs.
Andrew, thank you so much for joining us this week on Amicus.
Grossman: Oh, my pleasure.
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Here to help us understand the other case of this case is Nate Persily, whose amicus brief was, in fact, name-checked at oral argument in Evenwel this week. Nate teaches election law at Stanford Law School. He has served as a special master or court-appointed expert in New York, Connecticut, Maryland, and other states in helping to draw nonpartisan redistricting plans. He is also, as he says in an op-ed in “The Washington Post,” a self-described data-obsessed, court-appointed redistricting expert. Nate Persily, welcome to Amicus.
Nate Persily: Thanks for having me.
Lithwick: Nate, I think that a helpful place to start would be if you could locate the whole principle of “one person, one vote” for our listeners. People tend to think it’s enshrined somewhere in the Constitution, but of course, it’s not. It’s a historical invention, right? Can you tell us the fairly recent origins of the whole doctrine—”one person, one vote”?
Persily: So, in the Warren court cases—the reapportionment cases of the 1960s—the court established for the first time that districts with unequal numbers of people in them violate the 14th Amendment. They came up with what’s known as the “one man, one vote” rule—or now “one person, one vote” rule—which says that every 10 years, when you have a census, every jurisdiction in the US has to redraw its lines to make sure that there are equal numbers of people in it. That’s true for Congress. That’s true for State Legislature. It’s true for city council and even down to the local school board.
Every 10 years, when we have a census, and we see that people have moved from one place to another, we have to redraw lines to make sure there’s equality between districts. The court came up with these decisions in the 1960s because places like Tennessee, Alabama, and pretty much most other states in the country had been drawing districts sort of the way the US Constitution requires it for the US Senate—that some of them had had “one county, one vote,” or they hadn’t redistricted for 100 years during the period of industrialization, where all of these people moved into cities.
So it overrepresented rural areas and underrepresented cities and suburbs, and the court said, this really cannot stand and came up with a new constitutional rule—really out of whole cloth. The court was honest about this, and said that, yes, there’s no originalist basis for this. It’s not something that the framers of the 14th Amendment or the Constitution intended, but this is a key way to protect political equality—so much so that Chief Justice Earl Warren actually said that “one person, one vote” cases were the most important cases of his tenure on the court, even more important than Brown v. Board of Education.
Lithwick: Nate, before we move forward in time, let’s stick with Reynolds v. Sims, Baker v. Carr—this line of “one person, one vote” cases—and just help us get a picture of what the mal-apportionment you’re describing was leading to. What kind of outcomes was it that the court was trying to correct for when this line of cases gets decided?
Persily: Going back to the way Earl Warren actually thought about it—Earl Warren was Governor of California, at a time when Los Angeles, as a county, had one representative in the State Senate; as a rural county, which had, say 1/100 of the population of Los Angeles, also had one senator in the State Senate.
That problem motivated him to think about this problem of political inequality. So in this series of cases, starting with Baker v. Carr, which recognized this was a constitutional problem, and then Reynolds v. Sims and its progeny, which came up with the doctrine of “one person, one vote,” the court said that you have to draw districts on the basis of population. You can’t say each county gets one representative in the State Legislature or one Congressman; you have to equalize, based on the number of people who live in each district.
Lithwick: Now talk to me briefly. I think a lot of us went into oral argument thinking this was a case chiefly about a hot-button issue, which is noncitizens. Whether you’re a legal alien, or whether you’re undocumented, whatever it is, we thought we were going to talk a lot about the Texas-specific questions of a huge Hispanic population that doesn’t vote. But we instead talked about children, right? Justice Breyer was very focused on the possibility that children would be disenfranchised. Was that a surprise to you—instead of focusing on other populations, we talked so much about children, who are, after all, children?
Persily: Well, I think that in constitutional argument, as in others, asking what about the children is always a good stepping stone to some other kind of argument. I think in here, you had the Children’s Defense Fund that actually came in and documented how a “one voter, one vote” rule would affect children in their representation, and that this would be just one more way that children would get a raw deal in getting represented.
It’s not just about children, per se; we’re talking about areas which have large families. So, populations that tend to have larger families are going to be disadvantaged in their representation than areas that are, you know, retiree communities or where there are fewer children. If you think about the public policy and how that might be shifted if you didn’t have to pay attention to children and families in the same way as you do when you’re drawing districts on the basis of population, I think that there’s a real concern here about the public policy implications of going with what the plaintiff’s proposed rule would be.
But I think that the issue of citizenship is still in the background. One issue that I’ve been trying to hammer that they really didn’t pay attention to—and the plaintiffs don’t—is this issue of felons and prisoners, because there are over 300,000 disenfranchised felons in Texas—roughly 100,000, I think, people in prison, or 80,000 to 100,000 people in prison. The plaintiffs in this case don’t ever talk about them. That’s a real issue when it comes to “one person, one vote” and equal representation.
Lithwick: Okay, now let’s turn to Justice Anthony Kennedy, because, as is inexorably the case on this podcast, we always have to say, what is Kennedy going to do? Justice Kennedy started sounding like he was going to propose some hybrid solution—that he’s going to allow us to count both citizens and voters. Let’s listen to Justice Kennedy trying to split the difference here.
Anthony Kennedy: Well, in a case like this, where there’s a 45 percent deviation or something of that order, then why isn’t Texas required at that point to recognize that these interests that are legitimate under the Constitution—which are voter-based—should not be accommodated and so that you should at least give some consideration to this disparity that you have among voters?
Lithwick: So, Nate, can you help us understand what it is that Kennedy is trying to think about as a possible middle way in this case?
Persily: This is one of those instances where I wanted to sort of reach into the courtroom, take Justice Kennedy, and put him in front of a computer where I could redistrict the state with him, because if you have experience drawing lines and trying to represent communities, you know that if you have to try to equalize both population, on the one hand, and eligible voters on the other hand, basically every other principle that might constrain the redistricting process would go out the window.
So, in Texas, for example, where you have large noncitizen communities on the border with Mexico—if you wanted to equalize both the number of voters and the number of people, you would end up having to draw really stringy-shaped districts going north to south in the state. One of the interesting things in this case is that the plaintiffs had an expert who said, yes, you could do this. It is possible to do this, but they’ve never shown anyone this map that supposedly could do so.
I can tell you that if anyone actually tried to do it, no one would want to support these kinds of lines, because they would break up communities. They would go through all kinds of counties. You wouldn’t be able to do anything else in the redistricting process, except trying to hit magic numbers of equalizing voters and equalizing people.
Lithwick: Yet this pragmatic problem—this is the thing that you’ve written about and thought so much about. There’s no practical way beyond the census to even do this counting.
Your brief says that there’s a really serious practical problem, because you’re coming to the court and saying, we want to count another way, but we’re not exactly sure what that’s going to look like. And the court seems to kind of dismiss it, right?
Persily: So, I filed a brief on behalf of myself and other redistricting experts, trying to lower the temperature in the philosophical debate by trying to focus on the practical implications of going with what the appellants are arguing here.
The brief makes a very simple argument, which is that we don’t have a dataset. No state has a dataset of eligible voters. Now you might think that every state knows which person is eligible to vote and which isn’t, but there is no way to redistrict on the basis of eligible voters, because, as we said earlier in the podcast, that doesn’t just mean talking about citizens and noncitizens. You have to deal with disenfranchised felons in Texas. You have to deal with prisoners. You also have to deal with the close to half a million people overseas who are eligible to vote in Texas elections but aren’t counted in the census.
So there really is no physical way right now to draw districts on the basis of equal numbers of eligible voters. So, what the plaintiffs in this case say is that, well, there are these surveys that the census puts out about the citizen voting age population. That is where we get the information about citizenship rights in the United States, and how we know how many people are legal citizens and not. But those surveys are of 2.5 percent of American households each year. So there’s no way you can actually draw districts on the basis of, say, a survey in a given year.
So, the plaintiffs say, okay, well, what you need to do is average surveys over the previous five years. All right. Well, the problem is, that means that you’re drawing district from, for example, in 2011, with data that are from 2006 to 2010. Now this sounds really complicated. To some extent, it is, but the point is that, you are using a series of surveys of just two percent of the population to then construct districts that are supposed to get past this rigorous constitutional rule of “one person, one vote.”
I think most people don’t realize that we don’t have this kind of national master list in the US of citizens or eligible voters. So I think that is a way to dispose of this case easily, because basically what the plaintiffs are arguing here is that the one population dataset—the census enumeration of persons, which is required by the Constitution—is actually prohibited by the Constitution for use in redistricting. That just cannot be right.
It can’t be that the one thing that the Constitution requires with respect to counting people is also prohibited by that same Constitution for use in the redistricting process.
Lithwick: Although, Nate, in fairness, the plaintiffs argued again, and again, and again yesterday that that survey, that instrument is good enough for the Voting Rights Act purposes. They use it all the time, endlessly and infinitely, for purposes of satisfying the requirements of the Voting Rights Act.
Persily: Well, the survey is a great survey, and we use governmental surveys for all kinds of purposes—whether you’re talking about the labor force participation survey or even the American community survey, which doesn’t just include questions on citizenship; it includes questions on whether you have plumbing in your house, or internet connection, or any number of other questions.
So, I’m not trying to rag on the survey. I mean, the survey is a critical piece of information for public policy. One of the areas where it’s critical is for voting rights compliance—so we know, for example, how many non-English language speakers are in particular areas, based on this survey. We can get a rough sense of the citizen voting age population in areas over a particular period as a result of this survey.
But what my brief tries to make clear is that you shouldn’t treat these survey results as so specific that you can actually say, yes, this is the exact number of people who are citizens of voting age in this particular jurisdiction. The argument I make is that, yes, you can figure out whether a plan discriminates on the basis of these data, but you can’t then use these data in order to construct plans that satisfy “one person, one vote.”
Lithwick: Nate, if you’re right about this and there’s no way other than the census for gleaning the information we need for apportionment purposes, what is it that the plaintiffs are asking us to do when they want us to count noses here?
Persily: Well, even in the oral argument, the plaintiff said that, look, even if we’re unable to draw districts down on the basis of equal numbers of citizens or eligible voters, we can deal with that in the district court. We can deal with the solution later on.
Now what that really means—at least from my perspective—is that they’re asking for a different kind of census than the one that’s currently conducted. So, whether it’s a national census or a census that Texas itself would conduct, to really get a fine-grained estimate of the registered voters and the eligible voters in particular areas—that’s kind of what the plaintiffs are asking for here—we need to count people in a different way.
One of the interesting things in this case is, you had former census directors coming in with their own amicus brief, saying, you know, that if we start limiting the census to citizens or including a citizenship question on the census, there are going to be a lot of people who are afraid to fill out the census form, and that you would sort of turn the census process and the census enumeration into a sort of “show me your papers” kind of exercise. That would defeat all the other purposes for which we’re counting people for the census.
Lithwick: That’s probably doubly chilling, in light of the way we’re thinking and talking about immigrants in this country this particular moment in time, right?
Persily: Well, that’s another reason I think the court tried to at least shy away from this issue of either illegal or even legal immigration and representation, because they know what’s happening in the larger political universe on this question. So, better to talk about the sort of high-concept constitutional questions or about communities like children, who would be shafted by this constitutional rule, than to insert themselves into what is a really volatile debate on immigration.
Lithwick: Nate, I know you want to bring the temperature down on a pretty politically fraught case. But I think before I let you go, I want to crank it up a little bit and say, there’s certainly a valence around this, and it’s certainly how the case has been reported, up through the process when it was first filed, that says, look, this is just of a piece with attempts to disenfranchise voters who tend to be poorer, who tend to be younger, who tend to be minorities, who tend to live in cities, and this is just a way, you know, very much of a piece with other conservative efforts to make sure that votes don’t count.
Is that a fair characterization of the argument against Evenwel?
Persily: Well, here’s what actually irks me the most about the case. It would be one thing if Evenwel and her compatriots here lobbied the Texas Legislature, to have them draw districts on the basis of equal numbers of citizens or equal numbers of voters. It’s not as if the Texas Legislature is unresponsive to the requests and impulses of people like Ms. Evenwel.
But they didn’t do that. Instead, what they did is, they go to the Supreme Court, and they want to craft a national rule that says, no state, regardless of whether you’re Texas or anyplace else, shall have the latitude to draw districts on the basis of population. The attempt to hamstring states in their choice between equal representation, on the other hand, and equal power of one’s vote on the other—that is what I find so offensive.
So, yes, it is of a piece with other types of cases—both in the voting realm, whether you’re talking about Shelby County or some other cases like that . Or in the other cases that Mr. Blum, who’s behind the litigation in this case, brought forth, like the Fisher affirmative action cases, like some of the other affirmative action cases that are going after racial preferences. That really does give you an idea of what’s in the background of this case, which is that it is, in part about equal power of one’s vote in the abstract, but it’s also about the particular situation that they see in Texas, which is that they’re concerned about the creation of majority Latino districts—which they think overrepresent some noncitizen communities.
I think that they see this constitutional rule as a way to combat that.
Lithwick: Looking forward, do you see Evenwel and the other election law voting rights cases as being part of this progression that starts really in earnest with Shelby County, the case that eviscerated part of the Voting Rights Act? Is this part of just a general trend that we’re going to see at the court of making it slightly harder to vote, making it slightly harder to be represented, making it a little easier for states to make it harder for the vote? Is that kind of where the trend line is going?
Persily: Well, one of the things that’s happened over the last, say, 10 to 20 years is that, on the one hand, we’ve had certain types of restrictions in voting, like voter ID laws and restrictions on registration and the like, but at the same time, we’ve had real liberalization in the way that we vote. So all across the country—right now, for example, in the upcoming election—you’re going to have at least one-third or maybe 40 to 45 percent of Americans that are going to cast votes before Election Day.
While there are certain states that are rolling back early voting in some of these options, it’s actually becoming easier to vote in different ways than it has been historically.
So while I think there’s some really troubling moves that have happened recently and continue to happen in certain states, with respect to voter identification, I don’t think it’s having a huge effect on voter turnout.
But the real question for constitutional purposes is, well, what’s motivating these changes? They say that it’s motivated to combat voter fraud, and yet we don’t have any real instances of that. Some discrete populations, particularly racial minorities, are finding that it targets them specifically. So the court’s going to have to grapple with this again in cases coming out of Wisconsin or some other states in the coming years.
Lithwick: Nate Persily, whose amicus brief was, in fact, spoken of aloud in the hallowed chambers of 1 First Street this week, teaches election law at Stanford Law School. He is a self-described data obsessive. And it is just a joy, Nate, to have you on “Amicus.” Thank you so much for joining us.
Persily: Well, thank you.
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As you may have heard, the other big blockbuster case that was heard at the US Supreme Court this week was the challenge to the University of Texas’s affirmative action program. The case is Fisher v. Texas, affectionately known around the court as Fisher II, because the U.S. Supreme Court has already heard this exact appeal back in 2012. And after dithering about it for months, and months, and months, they sent it back to the lower court in 2013, to try to make something happen that would make them not have to hear it again.
Well, they did have to hear it again, and they heard it this Wednesday. At its heart, Fisher is a challenge about whether the University of Texas—and, presumably, other colleges—can use race in a “holistic, non-numeric, vague and gauzy way” when they assess applicants. They can do it, says precedent, only in order to promote the academic value of creating a diverse class, and only if they try to use other race-neutral means first.
Now Abigail Fisher, the plaintiff in this case, argues that she actually was denied a spot at UT Austin that other, less-qualified applicants were given because their race was taken into consideration.
Now there were a few moments at argument that we wanted to lay on your earbuds this week, starting with Justice Anthony Kennedy, who—you guessed it—will probably be the deciding vote in this case, wondering why the court is hearing this whole endless Fisher case again. Here’s Anthony Kennedy.
Anthony Kennedy: We’re just arguing the same case. It’s as if nothing had happened.
Lithwick: Now we want you to listen to Chief Justice John Roberts, who is not a fan of affirmative action, going back and forth with attorney Greg Garre, who was representing UT this week. This was an interesting little colloquy that they had about whether and how minority students affect classroom discussions.
Greg Garre: 272 African-Americans out of a class of 8,000—that’s glaring racial isolation. University of Texas concluded that was unacceptable, and I don’t think that that’s seriously debatable. But again, if we need more evidence on why having 90 percent of our classrooms of the most common size with zero or one African-American doesn’t achieve our educational objectives—
John Roberts: What unique perspective does a minority student bring to a physics class?
Garre: Your Honor, you—
Roberts: You’re counting those among the classes in which there are no minority students, and I’m just wondering what the benefits of diversity are in that situation.
Garre: Your Honor—
Lithwick: Here is Justice Sonia Sotomayor, the court’s only Latina member, and someone who has written quite openly about the benefits of affirmative action in equalizing opportunity, not only in her life but in the life of this country. She’s pressing Bert Rein - he’s Abigail Fisher’s attorney - towards the end of an increasingly tense argument about whether he or she is stereotyping based on race here.
As you can tell from this exchange, it got a little emotional.
Sonia Sotomayor: What you’re saying, basically, is, this is what the Fifth Circuit concluded and which the school basically agrees—if you don’t consider race, the holistic percentage, whatever it is, is going to be virtually all white.
Bert Rein: And that is incorrect. There’s no basis in this record.
Sotomayor: Oh, but there is.
Rein: It’s a stereotypical—
Sotomayor: No, it’s not.
Rein: —assumption. That’s what it is.
Sotomayor: It’s not, because the reality that Justice Alito wants to rely on—let me finish my point—he’s—
Lithwick: And finally, in an exchange you may have read something about this week but probably not yet heard, here is Justice Antonin Scalia pressing Greg Garre—remember, he’s UT’s lawyer—on an argument that’s laid out in one of the amicus briefs on Abigail Fisher’s side of the side.
The brief is by Professor Sander, and it’s about a theory that’s called mismatch. The theory is that minority students actually fare very poorly when they’re thrust into situations that they cannot cope with because it’s academically too challenging. So, here’s Scalia, paraphrasing what is in the Sander brief. I want to tell you that a lot of people have very strong opinions about this exchange. So, we’re going to let you decide what you think about it for yourself.
Antonin Scalia: There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less advanced school, a less—a slower-track school, where they do well. One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools, where they do not feel that they’re being pushed ahead in classes that are too fast for them.
Garre: This court—
Scalia: You know, I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer, and maybe some—
Lithwick: As you can tell, Garre had a tough time getting a word in edgewise with the Justice. But when he was finally allowed to develop an answer, here was his very subtle retort to Justice Scalia about the possibility that creating separate but lesser schools for minority candidates is something that we’ve tried in this country, and it hasn’t worked out all that well.
Garre: And frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools. I think what experience shows at Texas, California, and Michigan is that now is not the time and this is not the case to roll back student body diversity in America.
Thank you, Your Honors.
Lithwick: So that is just about it for another episode of Amicus. As always, we are eager to hear your many thoughts and reflections, so do put them in an email, send them to us at email@example.com. We read all of them. We don’t always respond, but, man, we love your letters.
We also love reading the reviews of our podcast that you all have been leaving on our iTunes page. Add your voice to the many kind comments that are already there. It helps us to spread the word about our podcast. Search Amicus in the iTunes Store, and click the “ratings and reviews” tab. And we thank you for your kind thoughts.
You can always catch up on all of our past shows, including a couple I want to flag for you, because they’re so relevant to this week. We had a terrific interview, teeing up Evenwel last spring with Douglas Smith. And our most recent episode previewed the Fisher affirmative action case with Professor Risa Goluboff at the University of Virginia Law School—now the new Dean of the University of Virginia Law School—and it was a terrific and thoughtful insight into the colorblind Constitution.
So, you can get all of those past shows and others at slate.com/amicus. We also post transcripts there, but you have to be a Slate Plus member to access them. If you are not a member, you can always sign up for a free trial membership to Slate Plus at slate.com/amicusplus.
Thank you, as always, to the fantastic Virginia Foundation for the Humanities, where our show is taped. Our producer is Tony Field, and Andy Bowers is our executive producer.
Amicus is part of the Panoply Network. Check out our entire roster of podcasts at itunes.com/panoply.
I’m Dahlia Lithwick. We’ll be back with you the day after Christmas, with another edition of Amicus.