Exploring the Potential Effects of Evenwel v. Abbott
CRC Note 2016-01, March 2016

A case before the United States Supreme Court could have implications for how district lines are drawn for the election of representatives to government offices in Michigan and across the nation. The underlying question at hand in Evenwel v. Abbott is whether the “one per-son, one vote” principle outlined in Reynolds v. Sims and the equal protection provisions set forth by the Fourteenth Amendment to the United States Constitution have been interpreted for purposes of drawing legislative boundaries as defining “people” as those counted in the decennial census. Those suing for change argue that because the issue is representation in the policymaking bodies of our governments, redistricting should be divided based solely on the population of those eligible to vote, which serves as a surrogate for the population eligible to serve in those policymaking bodies.


Redistricting is the process by which a state is divided into geographic districts from which are chosen United States congressional representatives, state senators and state representatives. Section 2 of Article I of the United States Constitution requires that representation in Congress be apportioned among the several states in accordance with their respective populations. At present, Michigan has 14 congressional representatives. Sections 2 and 3, respectively, of Article IV of the 1963 Michigan Constitution require that the state Senate consist of 38 members and the state House of Representatives consist of 110 members.

The U.S. Supreme Court has held that the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution requires states to conduct apportionment and redistricting after each federal decennial census so that representation will reflect changes in population.

Legal and Constitutional Background of Issue

Evenwel v. Abbott 135 S.Ct. 2349 (2015) concerns the meaning or nature of the “one per-son, one vote” principle established in the Reynolds v. Sims 377 U.S. 533 (1964) case that determined the guidelines for drawing district lines for the election of representatives to legislative offices. The primary issue being considered is whether the principles outlined in Reynolds v. Sims and the Fourteenth Amendment to the U.S. Constitution require states to redistrict using total population, total persons eligible to vote, or provides no requirement.

The current measure used for redistricting in Michigan and elsewhere is the total population enumerated by the decennial census that includes everyone willing to be counted – citizens and non-citizens, children, prisoners, and immigrants, both legal and illegal. Citizens of voting age population (CVAP), which counts only citizens of the United States that are of voting age (at least 18 years old) and not those incarcerated or otherwise disqualified, is a different definition of “people” that would satisfy the need for a narrow measure of those eligible to serve on our governmental policymaking bodies. While the 2010 census counted 9.9 million people in Michigan, the Michigan Department of State estimated the CVAP to be 7.7 million people in 2014.

Reynolds v. Sims. Reynolds v. Sims is a 1964 Supreme Court case that originated in Birmingham, Alabama. It started as a challenge to the redistricting provisions of the Alabama Constitution, which provided that each county receives one senator. At that time, the largest county in Alabama had a population about 41 times larger than the population of the small-est county.

The Supreme Court described the nature of the problem posed by such population variances, in a passage that is quoted at length, as follows:

Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government and legislators are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.

The majority opinion, which created the principle of “one person, one vote,” caused many states to modify their system of legislative representation. States are required to provide substantially equal legislative representation for all citizens in a state regardless of where they reside. This principle is being challenged in the Evenwel case.

The opinion in Reynolds v. Sims appeared to make reference to both total population and total voters, providing the legal basis for bringing this case. The Fourteenth Amendment requires that states provide equal protection of their laws to any person in their jurisdiction. The legal question in the Evenwel case thus puts the constitutional value of the “one person, one vote” principle against the constitutional value of equal protection for all persons, including non-voters. The case is expected to be decided in 2016, although the recent death of Supreme Court Justice Antonin Scalia may affect the timing of the decision.

Evenwel v. Abbottt. The Evenwel case originated as a dispute between two Texas residents – Titus County Republican Party chair Sue Evenwel and Montgomery County resident Edward Pfenninger – and the State of Texas. Former Texas Governor Rick Perry signed a redistricting plan into law in 2014 that put roughly even numbers of Texans into each Congressional, state house, and state senate district. However, the redistricting plan did not put the same number of eligible voters into each district, which Evenwel and Pfenninger claim causes voters in districts with greater proportions of residents who are not eligible to vote to have greater political influence because their individual votes are effectively made stronger since each individual vote in such districts represents a higher percentage of the overall voting population.

Amici briefs supplied in support of the State of Texas claim that a ruling favoring equalizing voters across districts would prevent those not eligible to vote from having equal access to petition their elected representatives, and would cause these persons to lack equal representation as persons.

This case was originally appealed to the Fifth U.S. Circuit Court, which held that “one person, one vote” allows states to use total population, and does not require states to use voter population in their legislative redistricting.

Michigan Redistricting Provisions. The redistricting provisions in the 1963 Michigan Constitution were being developed by delegates to the 1961-62 Constitutional Convention as Reynolds v. Sims was being argued in the U.S. Supreme Court. Ultimately, the Constitutional Convention delegates failed to anticipate the direction the U.S. Supreme Court would take in the case and included provisions incorporating more than just “persons” into the redistricting process. As such, Michigan was required to abandon the legislative apportionment commission included in the 1963 Constitution as it was based on state regions, not population of voters.

In 1982, the Michigan Supreme Court invalidated Michigan’s redistricting provisions because one requirement violated the Equal Protection Clause of the U.S. Constitution and the other provisions were non-severable from the violating section. Although the Michigan Supreme Court prescribed criteria that a special master used to draft the redistricting plan after the 1980 census, it was not until 1996, when the state legislature passed Public Act (PA) 463, that Michigan again had guidelines for legislative redistricting. These requirements comprise provisions for a population variance of five percent above or below the ideal district size, upholding precedents related to the Voting Rights Act, preserving political boundaries, contiguity, compactness, and single-member districts.

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