Continuing Constitutional Difficulties in Implementing the Voting Rights Act

Sue Evenwel is a citizen of the United States and of the state of Texas. She is a registered voter in Titus County and regularly votes in local and state elections. How is it, then, that Ms. Evenwel’s vote in a Texas state senate race is worth only about half that of certain other voters? The answer lies somewhere at the intersection of bad law and even worse politics that the modern Voting Rights Act has become. 

The VRA, as you may recall, was the heroic civil rights legislation that finally put a stop to the most blatant and invidious forms of racial discrimination impairing the fundamental right of racial minorities to vote. It has been several decades now since this important and proud work but now, sadly, the heroic VRA has lived long enough to see itself become a villain. As Cato has warned before—in our amicus briefs in Perry v. Perez and Shelby County v. Holder—the courts are at a “bloody crossroads” when interpreting what have become the conflicting mandates of the VRA.  To give one example, the courts have found that Section 2 requires race-based redistricting to prevent loss of minority voting power, while at the same time, the Fifteenth Amendment (and the currently inoperable VRA Section 5) prohibits discrimination in voting on the basis of race.

The conflicts go on: as Ms. Evenwel’s case demonstrates, Section 2’s requirements clash with the Fourteenth Amendment’s equal-protection guarantee. In response to the pressures of satisfying Section 2, Texas adopted a court-drawn, interim redistricting plan for state senate districts. To ensure that racial minorities’ voting power isn’t diluted, however, the plan instead dilutes the voting power of rural voters by equalizing “total population” among districts instead of using the “citizens of voting age population” (CVAP) metric. The result of this choice is that the high number of non-voting-eligible immigrants—whether legal or illegal—in Texas’s urban centers wildly inflates the voting power of the relatively fewer eligible voters who also reside in those urban districts.

This is not just a distortion of American democracy; it’s a distortion of the “One Person, One Vote” principle inherent in the Fourteenth Amendment Equal Protection Clause. The Supreme Court has said before that voting districts should be as close in voting population as is feasible to protect the equal right to vote. Thanks to outmoded judicial interpretations of the VRA, the Court should now have another chance to explain what that means.

Evenwel and other Texas voters whose votes have been rendered “less equal” by Texas’s districting plan are standing up for their rights by appealing an unfavorable district court (special panel) ruling to the Supreme Court. Cato and the Reason Foundation have filed an amicus brief supporting their appeal. At this stage, the Court only needs to find that the plaintiffs have presented a substantial question for review, so our brief explains why the question presented is such an important one for the Court to decide. We explain: (1) how Section 2 and the Fourteenth Amendment’s “One Person, One Vote” principle are in conflict, (2) that recent immigration patterns have made it constitutionally problematic to use “total population” and not CVAP, and (3) that it’s inappropriate for courts to defer the choice of population metric when that choice jeopardizes the fundamental right of every citizen to an equal vote.

The Supreme Court will decide whether to take the case of Evenwel v. Abbott at some point before it breaks for the summer.