Evenwel v. Abbott Brief of Amicus Curiae in Support of Appellees

    No. 14-940

In The

Supreme Court of tfje Umteb States;

Sue Evenw el , Edward  Pfenninger ,
Appellants,

v.
Greg A bbott , in  His Official Capacity  as 

Governor  of Texas, e t a l .,
Appellees.

On Appeal from the United States District Court 
for the Western District of Texas

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC. 

IN SUPPORT OF APPELLEES

Sherrilyn  Ifill 
Director-Counsel 

Janai Nelson 
Christina  Swarns 
Leah C. Aden  
Liliana Zaragoza  
NAACP Legal Defense & 
Educational Fund , Inc, 

40 Rector Street, 5th Floor 
New York, N.Y. 10006

Coty M ontag 
John Paul Schnapper- 

Casteras
NAACP Legal Defense & 
Educational Fund , In c . 

1444 I Street N.W. 
Washington, DC 20005

W alter  Dellinger  
(■Counsel of Record) 

wdellinger@omm.com 
Bradley  N. Garcia 
Jason  Zarrow  
O'Melveny  & Myers LLP 
1625 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 383-5300

Danielle  C. Gray 
O’M elveny  & Myers LLP 
Times Square Tower 
7 Times Square 
New York, N.Y. 10036 
(212) 326-2000

Counsel for Amicus Curiae

mailto:wdellinger@omm.com


1

INTEREST OF AMICUS CURIAE............................. 1
INTRODUCTION AND SUMMARY OF

ARGUMENT............................................................. 2
ARGUMENT...................................................................7

I. APPELLANTS’ PROPOSAL IS AN
ABRUPT DEPARTURE FROM 
LONGSTANDING PRACTICE AND 
PRECEDENT....................................................7
A. Reynolds Protects Equal Access

to Representation.....................................8
B. Consistent Precedent and

Practice Confirm That Reynolds 
Protects Equal Access to 
Representation....................................... 11

II. APPELLANTS’ PROPOSAL WOULD 
FENCE OUT HISTORICALLY 
DISFAVORED AND 
UNDERSERVED COMMUNITIES,
AND THERFORE RAISES 
CONSTITUIONAL CONCERNS................. 13
A. This Court’s Jurisprudence 

Protects Against the Fencing Out
of Select Communities...........................15

B. Appellants’ Proposal Does Not
Have a Constitutional Value That 
Justifies Its Deleterious Effect on 
Representational Equality................... 23

TABLE OF CONTENTS

Page



11

Page

TABLE OF CONTENTS
(continued)

III. THERE IS NO CONFLICT
BETWEEN ONE PERSON, ONE 
VOTE AND SECTION 2 OF THE 
VOTING RIGHTS ACT................................. 25
A. In Principle, There Is No Conflict 

Between One Person, One Vote
and Section 2...............................   26

B. In Practice, There Is No Conflict 
Between One Person, One Vote
and Section 2.......................................... 29

CONCLUSION...................................   34



Ill
TABLE OF AUTHORITIES

Page

Cases

Abate u. Mundt,
403 U.S. 182 (1971)...................................  22, 23, 33

Anderson v. Celebreeze,
460 U.S. 780 (1983)................................................  16

Barnett v. City of Chi.,
141 F.3d 699 (7th Cir. 1998).................................  30

Bartlett v. Strickland,
556 U.S. 1 (2009)..............................................  28, 30

Bd. of Estimate of City of N.Y. v. Morris,
489 U.S. 688 (1989).......................................... 11, 24

Beer v. United States,
425 U.S. 130 (1976).................................................2

Branch u. Smith,
538 U.S. 254 (2003)............................................... 32

Brown v. Thomson,
462 U.S. 835 (1983).......................................... 32, 33

Burns v. Richardson,
384 U.S. 73 (1966)..........................................passim

Bush v. Vera,
517 U.S. 952 (1996)............................................ 1, 34

Calderon v. City of L.A.,
481 P.2d 489 (Cal. 1971)....................................... 13

Carrington v. Rash,
380 U.S. 89 (1965)................................................. 15

Chapman v. Meier,
420 U.S. 1 (1975)...................................................  31



IV

TABLE OF AUTHORITIES
(continued)

Page

Chen v. City of Houston,
206 F.3d 502 (5th Cir. 2000).................................  32

Chisom v. Roemer,
501 U.S. 380 (1991).................................................. 1

Dillard v. Chilton Cty. Bd. of Educ.,
699 F. Supp. 870 (M.D. Ala. 1988), aff’d,
868 F.2d 1274 (11th Cir. 1989).............................  32

Dillard v. Town of Louisville,
730 F. Supp. 1546 (M.D. Ala. 1990).....................  32

Easley v. Cromartie,
532 U.S. 234 (2001)...................................................1

Ely v. Klahr,
403 U.S. 108 (1971)..........................................  18, 23

Fabela v. City of Farmers Branch, Tex.,
No. 10-1425, 2012 WL 3135545 (N.D.
Tex. Aug. 2, 2012)..................................................... 31

Fairley v. Hattiesburg, Miss.,
584 F.3d 660 (5th Cir. 2009).................................  31

Forston v. Dorsey,
379 U.S. 433 (1965)................................................  29

Gaffney v. Cummings,
412 U.S. 735 (1973)................................ 4, 10, 12, 29

Garza v. Cty. of L.A.,
918 F.2d 763 (9th Cir. 1990).................................  31

Georgia v. Ashcroft,
539 U.S. 461 (2003)....................................................1



V
TABLE OF AUTHORITIES

(continued)

Page
Gomillion v. Lightfoot,

364 U.S. 339 (1960) ........................................  2, 5, 15
Gray v. Sanders,

372 U.S. 368 (1963)................................................  22
Hadley v. Junior Coll. Dist.,

397 U.S. 50 (1970)..................................................  23
Harper v. Va. State Bd. of Elections,

383 U.S. 663 (1966)................................................  15
Holder v. Hall,

512 U.S. 874 (1994).......................................... 31, 33
Johnson v. DeGrandy,

512 U.S. 997 (1994) ..........................................  28, 30
Karcher v. Daggett,

462 U.S. 725 (1983)................................................  19
Kirkpatrick v. Preisler,

394 U.S. 526 (1969)...................................  10, 27, 33
Kobach v. Election Assistance Comm’n,

772 F.3d 1183 (10th Cir. 2014)............................. 21
League of United Latin Am. Citizens 

(LULAC) v. Perry,
548 U.S. 399 (2006).....................................  1, 28, 30

Lodge v. Buxton,
639 F.2d 1358 (5th Cir. 1981), aff’d sub
nom. Rogers v. Lodge, 458 U.S. 613
(1982)........................................................................ 27

Miller v. Johnson,
515 U.S. 900 (1995)................................................  34



VI

TABLE OF AUTHORITIES
(continued)

Page

Montes v. City of Yakima,
40 F. Supp. 3d 1377 (E.D. Wash. 2014)............... 34

Nipper u. Smith,
39 F.3d 1494 (11th Cir. 1994)...............................  33

Nw. Austin Mun. Util. Dist. No. One v.
Holder,
557 U.S. 193 (2009).................................................. 1

Reynolds v. Sims,
377 U.S. 533 (1964).........................................passim

Richardson v. Ramirez,
418 U.S. 24 (1974)................................................... 20

Romer u. Evans,
517 U.S. 620 (1996)................................................  16

Shaw v. Hunt,
517 U.S. 899 (1996)...................................... 1, 31, 34

Shelby Cty., Ala. v. Holder,
133 S. Ct. 2612 (2013)................................................1

Smith v. Allwright,
321 U.S. 649 (1944).................................................. 2

South Carolina v. Katzenbach,
383 U.S. 301 (1966)............................................... 27

Terry v. Adams,
345 U.S. 461 (1953).................................................. 2

Thornburg v. Gingles,
478 U.S. 30 (1986).................................. 1, 28, 29, 30

United States v. Hays,
515 U.S. 737 (1995)...................................................1



Valdespino v. Alamo Heights Indep. Sch.
Dist.,
168 F.3d 848 (5th Cir. 1999).................................  30

Veasey v. Abbott,
796 F.3d 487 (5th Cir. 2015)...................... .......... 22

Voinovich v. Quilter,
507 U.S. 146 (1993).......................................... 27, 31

Wesberry v. Sanders,
376 U.S. 1 (1964)....................................................  12

Whitcomb v. Chavis,
403 U.S. 124 (1971)............................................ 8, 24

White v. Regester,
422 U.S. 935 (1975).................................................. 2

White v. Weiser,
412 U.S. 783 (1973) ................................................. 31

Yick Wo v. Hopkins,
118 U.S. 356 (1886)............................................ 1, 27

Statutes

52 U.S.C. § 10301................................................. 27, 28
Other Authorities

Alan Huffman, How White Flight Ravaged 
the Mississippi Delta, The Atlantic (Jan.
6, 2010), available at 
http://www.theatlantic.com/business/arc 
hive/2015/01/how-white-flight-ruined- 
the-mississippi-delta/384227

vii

TABLE OF AUTHORITIES
(continued)

Page

18

http://www.theatlantic.com/business/arc


V l l l

Brennan Center for Justice at NYU School 
of Law, Citizens Without Proof (2006), 
available at
http ://www.brennancenter .org/ sites/defa

TABLE OF AUTHORITIES
(continued)

Page

ult/files/legacy/d/download„file_39242.
p d f...........................   22

Brief for Petitioners, Gomillion v.
Lightfoot, 364 U.S. 339, 1960 WL 98593
(Aug. 25, 1960).........................................................  15

Brief for the United States in Opposition,
Cty. of L.A. v. Garza, 498 U.S. 1028
(1991) (No. 90-849).................................................  12

Christopher Uggen et al., State-Level 
Estimates of Felon Disenfranchisement 
in the United States, 2010 (July 2012), 
available at http://sentencingproject.org/ 
doc/ publications/ 
fd_State_Level_Estimates_of_ 
Felon_Disen_2010.pdf...............................  17, 20, 21

Cong. Globe, 39th Cong., 1st Sess. 2767
(1866)........................................................................  11

Controversies in Minority Voting: The 
Voting Eights Act in Perspective 31 
(Bernard Grofman & Chandler 
Davidson, eds. 1992)................................................ 8

Ctrs. for Disease Control and Prevention, 
Healthy life expectancies at age 65 
highest in Hawaii, lowest in Mississippi 
(July 18, 2013), available at

http://www.brennancenter
http://sentencingproject.org/


IX

http://www.cdc.gov/media/releases/2013/ 
p0718-life-expectancy.html..................................... 18

David C. Saffell, Reapportionment and 
Public Policy: State Legislators’
Perspectives, 9 Poly. Stud. J. 916 (1981)................17

Developments in the Law, One Person, No 
Vote: The Laws of Felon 
Disenfranchisement, 115 Harv, L. Rev.
1939 (2002)..............................................................  20

J. Choper, Consequences of Supreme Court 
Decisions Upholding Individual 
Constitutional Rights, 83 Mich. L. Rev.
1 (1984)................................................................  9, 16

J. Douglas Smith, On Democracy’s
Doorstep 47 (2014)................................................  8, 9

Jim Bennett, Alabama Secretary of State,
Bennett Says Alabama will Implement 
Voter Citizenship Requirement (Dec. 19,
2014)........................................................................... 21

Joseph Fishkin, Weightless Votes, 121 Yale 
L.J. 1888 (2012)..................................................  7, 24

K. Johnson, Demographic Trends in Rural 
and Small Town America (Carsey Inst.,
Univ. of New Hampshire, 2006), 
available at
http://scholars.unh.edu/cgi/viewcontent. 
cgi?article=1004&context=carsey......................... 10

Kimball W. Brace, Final Report of the
2004 Election Day Survey (2005).......................... 19

TABLE OF AUTHORITIES
(continued)

Page

http://scholars.unh.edu/cgi/viewcontent


X
TABLE OF AUTHORITIES

(continued)

M. McCubbins & T. Schwartz, Congress, 
the Courts, and Public Policy: 
Consequences of the One Man, One Vote 
Rule, 32 Am. J. Pol. Sci. 388 (1988).........

Nat’l Cts. for Educ. Statistics, Children 
Living in Poverty, available at 
https://nces.ed.gov/programs/coe/pdf/coe 
_cce.pdf.........................................................

U.S. Census, Growth in Urban Population 
Outpaces Rest of Nation, Census 
Bureau Reports (Mar. 26, 2012), 
available at
http s ://www .census. gov/ne wsroom/ 
releases/archives/2010_census/cb 12 - 
50.html............... .........................................

U.S. Census, Tbl. 2, Reported Voting and 
Registration, by Race, Hispanic Origin, 
Sex, and Age (Nov. 2014), available at 
https://www.census.gov/hhes/www/ 
socdemo/voting/
publications/p20/2014/tables.html...........

U.S. Census, Tbl. 29, Population by Sex 
and Age, for Black Alone or in 
Combination and White Alone, Not 
Hispanic (2012), available at 
https://www.census.gov/population/race/ 
data/ppl-bcl2.html.... ...............................

Page

10

18

16

17

17

https://nces.ed.gov/programs/coe/pdf/coe
https://www.census.gov/hhes/www/
https://www.census.gov/population/race/


XI

Page

Uggen & Manza, Democratic Contraction?
Political Consequences of Felon
Disenfranchisement in the United
States, 67 Am. Soc. Rev. 777 (2002).....................  21

Virginia E. Hench, The Death of Voting 
Rights: The Legal Disenfranchisement of 
Minority Voters, 48 Case W. Res. L. Rev.
727 (1998)................................................................  20

Constitutional Provisions

U.S. Const, amend. XIV, § 1 ..................................... 13

TABLE OF AUTHORITIES
(continued)



INTEREST OF AMICUS CURIAE*

The NAACP Legal Defense and Educational 
Fund, Inc. (“LDF”) is a non-profit legal organization, 
founded in 1940 under the leadership of Thurgood 
Marshall to achieve racial justice and ensure the 
full, fair, and free exercise of constitutional and 
statutory rights for Black people and other commu­
nities of color.

Because equality of political representation is 
foundational to our democracy, and the franchise is 
“a fundamental political right . . . preservative of all 
rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 
(1886), LDF has worked for nearly a century to com­
bat threats to equal political participation. Indeed, 
LDF has been involved in nearly all of the precedent- 
setting cases regarding minority political represen­
tation and voting rights before federal and state 
courts. See, e.g., Shelby Cty., Ala. v. Holder, 133 S. 
Ct. 2612 (2013); Nw. Austin Mun. Util. Dist. No. One 
v. Holder, 557 U.S. 193 (2009); League of United Lat­
in Am. Citizens (LULAC) v. Perry, 548 U.S. 399 
(2006); Georgia v. Ashcroft, 539 U.S. 461 (2003); Ea­
sley v. Cromartie, 532 U.S. 234 (2001); Bush u. Vera, 
517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 
(1996); United States v. Hays, 515 U.S. 737 (1995); 
Chisom v. Roemer, 501 U.S. 380 (1991); Thornburg v. 
Gingles, 478 U.S. 30 (1986); Beer v. United States,

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
curiae state that no counsel for a party authored this brief in 
whole or in part, and that no person other than amicus curiae, 
its members, or its counsel made a monetary contribution to 
the preparation or submission of this brief. The parties have 
filed blanket consent letters with the Clerk of the Court pursu­
ant to Supreme Court Rule 37.3.



2

425 U.S. 130 (1976); White v. Regester, 422 U.S. 935 
(1975) (per curiam); Gomillion v. Lightfoot, 364 U.S. 
339 (1960); Terry v. Adams, 345 U.S. 461 (1953); 
Smith v. Allwright, 321 U.S. 649 (1944). Conse­
quently, LDF has a significant interest in ensuring 
the full, proper, and continued enforcement of both 
the United States Constitution and the federal stat­
utes guaranteeing full political participation, includ­
ing the Voting Rights Act.

INTRODUCTION AND  
SU M M AR Y OF AR GU M EN T

This appeal seeks to redefine the constitutional 
doctrine of one person, one vote, and to upend dec­
ades of settled practice and precedent applying it. 
Since its recognition in Reynolds v. Sims, 377 U.S. 
533 (1964), the one person, one vote doctrine has 
helped realize the constitutional promise of inclusive 
and equal access to this nation’s representative in­
stitutions by guarding against vote dilution and en­
suring that everyone in the population is counted 
when legislative districts are drawn. Ensuring state 
legislative districts are “as nearly of equal popula­
tion as is practicable” is essential to “the basic aim of 
legislative apportionment” : “equal representation for 
equal numbers of people, without regard to race, sex, 
economic status, or place of residence within a 
State.” Id. at 560-61 (emphasis added).

In the half-century since Reynolds was an­
nounced, States have overwhelmingly sought to 
comply with the Equal Protection Clause by drawing 
legislative districts with equal total population. This 
Court has repeatedly approved that approach, and 
for good reason: Creating legislative districts with
equal total populations fosters equal access to elec­



3

toral representation and constituent services, re­
gardless of race, class, citizenship status, zip code, or 
other characteristics. Moreover, using total popula­
tion rightly effectuates an inclusive vision of repre­
sentative government in America. It permits all res­
idents—including those who are disproportionately 
not yet registered to vote or who are temporarily or 
permanently disfranchised—to be meaningfully rep­
resented in their state and local legislative bodies. 
This is particularly important for underserved com­
munities and individuals for whom access to elected 
representatives may be a lifeline to essential public 
works and constituent services.

This inclusive understanding of electoral democ­
racy is a direct response to this country’s unfortu­
nate history of electoral exclusion. Prior to Reyn­
olds, such nefarious, discriminatory, and disfranchis­
ing tactics as literacy tests, poll taxes, and outright 
prohibitions on suffrage caused Blacks and other ra­
cial minorities to be discounted in electoral district­
ing and ignored by state representatives in the mak­
ing of important policy decisions that impact com­
munity members’ daily lives. It is only through the 
Civil War, key constitutional amendments, decades 
of litigation, and other advocacy that our country has 
begun to overcome these obstacles to equal access to 
representation.

Against this doctrinal and historical backdrop of 
struggle for a more inclusive democracy, Appellants 
advance a regressive and unprecedented interpreta­
tion of districting and constitutional law. They con­
tend that the conclusion repeatedly reached by this 
Court and the vast majority of States—that “total 
population” means total population—is wrong. In­
stead, Appellants assert that the Fourteenth



4

Amendment requires States to count out millions of 
people to “equaliz[e]” the number of “eligible voters” 
in each electoral district. Appellants’ Br. 45. Both 
what “eligible voter” means and how Appellants’ as­
sertion bears any relation to this Court’s case law 
are conspicuously undefined and ill-founded.

Reynolds offers no support for Appellants’ pro­
posal because it “dealt with more than the statistical 
niceties involved in equalizing individual voting 
strength.” Gaffney v. Cummings, 412 U.S. 735, 748 
(1973). Reynolds aimed to ensure “fair and effective 
representation,” not some mathematical conception 
of an “equal vote,” and “it was for that reason that 
the decision insisted on substantial equality of popu­
lations among districts.” Id. (citation omitted). 
There also is no support for Appellants’ position in 
the text of the Fourteenth Amendment (which guar­
antees equal protection to “any person,” not “citi­
zens,” much less “voting citizens”), in any of this 
Court’s decisions (which have explicitly and implicit­
ly endorsed total-population districting for decades), 
or in any analogous State practice (which has for 
more than 50 years treated total population as the 
relevant apportionment metric). Indeed, it is diffi­
cult to identify any constitutional value that Appel­
lants’ proposal would serve.

But Appellants’ theory would impose clear and 
considerable costs. Treating “non-voters” as invisi­
ble when drawing electoral boundaries, and there­
fore as unequal for purposes of representational ac­
cess, would significantly harm minority communi­
ties, which are proportionally more likely to include 
“non-voters” such as disfranchised persons, children, 
immigrants, and other persons who are not yet reg­
istered or eligible to vote, many of whom are bur­



5

dened by increasingly onerous registration and vot­
ing requirements. Elected officials would have little 
incentive to be responsive to individuals who are 
“invisible” for apportionment purposes, particularly 
as districts are expanded and redrawn to make up 
for those who are counted out under Appellants’ the­
ory. As a result, vast segments of society would be 
fenced out of American political life and the clock 
would turn back to before Gomillion u. Lightfoot, 364 
U.S. 339 (1960), and this Court’s commitment to 
make democratic institutions more open, inclusive, 
and representative.

Appellants’ nebulous theory of an “eligible voter” 
also is harmful because it hinges on the use of voting 
population statistics that are “susceptible to improp­
er influences by which those in political power might 
be able to perpetuate underrepresentation” of specif­
ic groups. Burns v. Richardson, 384 U.S. 73, 92-93 
(1966). Given the manipulability of voter eligibil­
ity—through such familiar means as voter registra­
tion restrictions and felon disfranchisement laws— 
Appellants’ proposal would create perverse incen­
tives to excise communities from the “eligible voter” 
population, perpetuating the types of representative 
inequalities that necessitated decisions like Gomil­
lion and Reynolds. For these reasons, and others set 
forth below, Appellants’ exclusionary proposal limit­
ing apportionment to the imprecise and malleable 
category of “eligible voters” should be approached 
with great caution, and is, under no circumstances, 
constitutionally required. Indeed, this case is an in­
appropriate vehicle to determine if and when appor­
tionment bases other than total population might be 
constitutionally permissible. There is no legislative 
record to allow the Court to assess the potential jus­



6

tifications for, or pitfalls of, that type of approach, 
and the Court should not attempt to provide guid­
ance on that important question in the abstract.

Finally, a handful of amici supporting Appellants 
suggest that this Court should revamp its case law 
to avoid an imagined collision between the use of to­
tal population under one person, one vote and the 
creation of majority-minority districts under Section 
2 of the Voting Rights Act (“VRA”). This collision is 
illusory. The plain fact is that States and localities 
have readily complied with both complementary 
commands for over 50 years, and Appellants’ amici 
identify no case that has ever suggested the two re­
quirements are somehow incompatible. Nor is the 
absence of conflict surprising. One person, one vote 
and Section 2 of the VRA have different constitu­
tional foundations and functions. The former gov­
erns how many people should be in a district to en­
sure all individuals have equal access to representa­
tion; the latter addresses who should be in each dis­
trict to ensure collective voting opportunity for par­
ticular, protected groups. There is no logical basis to 
insist that such fundamentally different inquiries 
rest on identical demographic data, and both re­
quirements leave States and localities with consid­
erable discretion to accommodate these and other 
legitimate objectives.

This Court should reaffirm the constitutionality 
of States’ established use of total population figures 
when drawing legislative districts. There is no rea­
son to depart from settled law and longstanding 
practice, and many compelling reasons not to.



7

ARGUM ENT

I. APPELLAN TS’ PROPOSAL IS AN  
ABR U PT DEPARTURE FROM  LONG­
STANDING PRACTICE AND PRECEDENT.

The one person, one vote principle was an­
nounced as a rule of representational equality, and it 
has been widely understood and applied as such for 
more than 50 years. Over that period, legislators 
have almost universally relied on total population 
figures to draw electoral districts that are “as nearly 
of equal population as is practicable.” Reynolds, 377 
U.S. at 577. Indeed, “line-drawers across the nation 
rely almost uniformly on total population,” an ap­
proach “that has become the de facto national poli­
cy.” Joseph Fishkin, Weightless Votes, 121 Yale L.J. 
1888, 1890 (2012). This consistent and seldom- 
questioned practice is not just constitutionally per­
missible, but instrumental in securing the core con­
stitutional promise of one person, one v o t e -  
inclusive and equal access to this nation’s repre­
sentative institutions.

In the face of that settled law and practice, Ap­
pellants advance a sweeping constitutional proposi­
tion under the guise of “equalizing] the number of 
eligible voters in each [electoral] district.” Appel­
lants’ Br. 45.2 Other than excluding scores of people

2 Indeed, as discussed below, infra Part II.A, it is not en­
tirely clear what standard Appellants believe should be re­
quired to implement their proposal. Although they frame their 
argument in terms of “eligible voters,” their preferred metric, 
citizen voting-age population (“CVAP”), Appellants’ Br. 9, does 
not account for the millions of disfranchised individuals with 
felony convictions and many other citizens who may be ineligi­
ble to vote for any number of reasons. They also cite to regis­
tration data, id., which is deeply problematic and often under­



8

for apportionment purposes, it is not clear what real- 
world interest Appellants’ proposal would actually 
serve. As this Court has recognized, the “weight” of 
an individual vote is hard to define and affected by 
numerous factors other than a district’s voting popu­
lation. See Whitcomb v. Chavis, 403 U.S. 124, 145- 
46 (1971).

A. Reynolds Protects Equal Access to Rep­
resentation.

Before Reynolds, legislative districts in many 
states were “little more than crazy quilts, completely 
lacking in rationality,” 377 U.S. at 568, with urban 
areas often severely underrepresented relative to ru­
ral ones. For example, in 1960, districts in Connect­
icut’s state house varied in population from 191 to 
81,089; in Nevada, state senate districts varied from 
568 to 127,016; and in California, one state senator 
represented six million residents of Los Angeles 
County while another represented 14,294 residents 
of three small counties. See J. Douglas Smith, On 
Democracy’s Doorstep 47, 287 (2014).

Malapportionment was a particularly malignant 
tool for disfranchisement in the South before Reyn­
olds. See Controversies in Minority Voting: The Vot­
ing Rights Act in Perspective 31 (Bernard Grofman & 
Chandler Davidson, eds. 1992) (“As post- 
Reconstruction historiography makes clear, one form 
of minority vote dilution employed by southern 
whites was malapportionment. . . . Reynolds de­
stroyed this as a legal option for whites in the Deep

inclusive for other reasons. And, of course, neither CVAP nor 
registered voters has much to do with the concept of an “equal 
vote,” which can be affected by voter turnout and barriers to 
registration.



9

South immediately before the Voting Rights Act en­
franchised blacks there the following year.”). In 
Georgia, for instance, just 1,876 people comprised 
the smallest house district, while the largest had a 
population of 185,422, roughly 100 times greater. 
Smith, supra, at 287.

As a result of such disparities, State policies 
tended to disproportionately serve the interests of 
sparsely populated rural areas, often at the expense 
of their more populous urban counterparts. As this 
Court summarized in Reynolds, “a nation once pri­
marily rural in character [became] predominantly 
urban,” and “ [representation schemes once fair and 
equitable [became] archaic and outdated.” 377 U.S. 
at 533.

Reynolds rejected these persistent representa­
tional imbalances, holding that, to avoid “schemes 
which give the same number of representatives to 
unequal numbers of constituents,” id. at 563, “the 
Equal Protection Clause requires that the seats in 
both houses of a bicameral state legislature must be 
apportioned on a population basis.” Id. at 568. “Leg­
islators,” this Court instructed, “represent people, 
not trees.” Id. at 562. With that command, States 
redrew decades-old electoral boundaries, giving 
greater representation to urban areas whose political 
voices had previously been artificially muted. See J. 
Choper, Consequences of Supreme Court Decisions 
Upholding Individual Constitutional Rights, 83 
Mich. L. Rev. 1, 91 (1984) (noting “immediately ob­
servable marked increases in urban and suburban 
representation” following Reynolds). Over time, gov­
ernment policies and programs that had dispropor­
tionately favored rural areas shifted to also accom­
modate urban interests. See, e.g., M. McCubbins &



10

T. Schwartz, Congress, the Courts, and Public Policy: 
Consequences of the One Man, One Vote Rule, 32 Am. 
J. Pol. Sci. 388, 395-400, 409-12 (1988) (documenting 
such a shift in federal policy following one person, 
one vote cases). Put otherwise, the rule in Reynolds 
profoundly enhanced the representation and political 
access of urban communities—and, in so doing, of 
communities of color.3

Given that profound transformation, this Court 
was clearly correct when it observed that Reynolds 
“dealt with more than the statistical niceties in­
volved in equalizing individual voting strength.” 
Gaffney, 412 U.S. at 748. Rather, ‘Reynolds recog­
nized that ‘the achieving of fair and effective repre­
sentation for all citizens is . . . the basic aim of legis­
lative apportionment.”’ Id. (quoting Reynolds, 377
U. S. at 565-66) (ellipsis in original). And “it was for 
that reason that the decision insisted on substantial 
equality of populations among districts.” Id. (em­
phasis added). This Court did not mandate popula­
tion equality to achieve some platonic mathematical 
ideal of an “equal vote,” but to ensure fair and ade­
quate access to representation to all persons within 
our nation’s boundaries. See Kirkpatrick v. Preisler, 
394 U.S. 526, 531 (1969) (“Equal representation for 
equal numbers of people is a principle designed to 
prevent debasement of voting power and diminution

3 See K. Johnson, Demographic Trends in Rural and Small 
Town America 24, fig. 17 (Carsey Inst., Univ. of New Hamp­
shire, 2006) (“ [T]he proportion of the rural population that is 
non-Hispanic white (82 percent) is higher than in metropolitan 
areas (66 percent).”), available at http://scholars.unh.edu/cgi/ 
viewcontent.cgi?article=1004&context=carsey.

http://scholars.unh.edu/cgi/


11

of access to elected representatives.”) (emphasis add­
ed).4

B. Consistent Precedent and Practice Con­
firm  That Reynolds Protects Equal A c­
cess to Representation.

It is hardly surprising, then, that this Court has 
rejected Appellants' proposal to mandate a particu­
lar population metric and has instead permitted 
states to select from a range of approaches, including 
the near-universal practice of drawing districts by 
reference to total population. See Burns, 384 U.S. at 
92.

That conclusion is confirmed by this Court’s ad­
judication of case after case in which districts were 
drawn using total population metrics, without so 
much as a hint that the practice could be viewed as 
improper. See Bd. of Estimate of City of N. Y. v. Mor­
ris, 489 U.S. 688, 700 (1989) (discussing “formula 
that [the Court] ha[s] utilized without exception 
since 1971” and citing cases analyzing total popula­
tion). Even when confronted with districts in which 
total population did not neatly mirror the voting 
population, this Court held only that such anomalies 
could justify districts with deviations from popula­

4 Indeed, the goal of representational equality predates 
Reynolds and is consistent with the intent of the Fourteenth 
Amendment. For example, Senator Jacob Howard’s compre­
hensive speech introducing that Amendment explained that 
“[t]he committee adopted numbers,” i.e. total population, “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. . . . 
Numbers, not voters; numbers, not property; this is the theory 
of the Constitution.” Cong. Globe, 39th Cong., 1st Sess. 2767 
(1866).



12

tion equality, see Gaffney, 412 U.S. at 746-47, or the 
use of alternative population measures, see Burns, 
384 U.S. at 94-97; it never stated or implied that 
such circumstances require the use of a particular 
population metric. Appellants’ failure to identify 
any such requirement in half a century of jurispru­
dence belies their newfound insistence that districts 
drawn using total population violate “their funda­
mental right to an equal vote.” Appellants’ Br. 18.

Finally, the validity of the total population 
benchmark is reinforced by the rules governing con­
gressional redistricting. Article I, Section 2 affirma­
tively requires that congressional districts be drawn 
to equalize total population. Wesberry v. Sanders, 
376 U.S. 1, 17-18 (1964). That provision reflects the 
constitutional permissibility of basing political rep­
resentation on total population, and not voters alone. 
Appellants have not explained why a constitutional­
ly permissible metric for congressional apportion­
ment is an inappropriate choice for state legislatures 
to rely on for their own districts.

And while this Court’s subsequent cases have 
held that the equal population principle applies more 
flexibly at the state level, see, e.g., Gaffney, 412 U.S. 
at 744-46, they have never suggested that “what is 
constitutionally required for apportionments for the 
House of Representatives is constitutionally forbid­
den in apportionments for state and local legislative 
bodies.” Brief for the United States in Opposition at 
16, Cty. of L.A. v. Garza, 498 U.S. 1028 (1991) (No. 
90-849).

Rightly so. Total population represents the most 
inclusive and democratic basis for legislative appor­
tionment—one that ensures equal access to repre­



13

sentation for all, without regard to the number of 
voters or non-voters in a given geographic area. It 
confers equal, meaningful representation on an indi­
vidual who is not registered to vote, a sixteen-year- 
old child, a lawful permanent resident, and a dis­
franchised person. See, e.g., Calderon v. City of L.A., 
481 P.2d 489, 493 (Cal. 1971) (“Adherence to a popu­
lation standard . . .  is more likely to guarantee that 
those who cannot or do not cast a ballot may still 
have some voice in government.”). For these rea­
sons, apportionment using total population is fully 
faithful to the doctrine’s purpose to expand “fair and 
effective representation for all,” Reynolds, 377 U.S. 
at 565-66, and to the Fourteenth Amendment’s 
guarantee of equal protection of the laws to “any 
person.” U.S. Const, amend. XIV, § 1 (emphasis 
added).
II. APPELLANTS’ PROPOSAL W OULD FENCE  

OUT H ISTORICALLY DISFAVORED AND  
UNDERSERVED COM M UNITIES, AND  
THEREFORE RAISES CONSTITUTIONAL  
CONCERNS.

The Court need not, and should not, go any fur­
ther than reaffirming States’ authority to use total 
population as the basis for redistricting. This case 
does not require the Court to address whether, and 
when, States might be constitutionally permitted to 
utilize metrics focusing on “eligible voters” or any 
other metric apart from the total population stand­
ard Texas actually used. And the Court should not 
attempt to resolve that hypothetical and abstract 
question in this case. This case lacks any legislative 
record or other context that would allow for informed 
and informative guidance on when States might be 
permitted to deviate from total-population appor­



14

tionment. Nor does this Court, in the absence of a 
legislative record, have any basis for anticipating 
what constitutional issues might arise if a legisla­
ture were to abandon its historic practice of using a 
total population standard. In Burns, this Court held 
that the registered-voter metric used there was ac­
ceptable, despite the Court’s serious reservations 
about its propriety, “only because on thfat] record’ 
that approach was found to have produced a result 
“not substantially different from that which would 
have resulted from the use of a permissible popula­
tion basis.” 384 U.S. at 93 (emphasis added). The 
only record evidence in this case is a conclusory two- 
page declaration. Appellees’ Br. 5-6. In short, Burns 
makes clear that evaluating the permissibility of 
non-population-based metrics requires a relevant 
record, and none exists here.

If the Court nonetheless attempts to provide 
guidance in this area, it should make clear that such 
voter-based metrics should be approached with great 
caution. In contrast to using total population for ap­
portionment, a system that focuses on Appellants’ 
nebulous definition of “eligible voters” would treat 
certain groups as invisible for purposes of legislative 
districting, and, by extension, as outsiders for pur­
poses of democratic representation. Because the 
very concept of an “eligible voter” is difficult to de­
fine and devoid of a solid conceptual or statistical 
foundation, it is ripe for political manipulation. This 
potentially invidious combination of exclusion and 
political malleability raises sufficiently significant 
constitutional red flags that the use of “eligible vot­
er” metrics cannot be required.



15

A. This Court’s Jurisprudence Protects 
Against the Fencing Out o f Select Com­
munities.

Beginning with Gomillion, 364 U.S. at 339, the 
persistent trend in this Court’s jurisprudence has 
been to make this country’s representative institu­
tions more open and inclusive, not less so. In Gomil­
lion, this Court reviewed a challenge to the Alabama 
City of Tuskegee’s borders, which had been redrawn 
“to remove from the city all save only four or five of 
its 400 negro voters while not removing a single 
white voter or resident.” Id. at 341. This Court 
unanimously rejected the new boundaries, which it 
described as having the effect of “fencing Negro citi­
zens out of town so as to deprive them of their pre­
existing municipal vote.” Id. “It is inconceivable,” 
this Court affirmed, “that guaranties embedded in 
the Constitution of the United States may thus be 
manipulated out of existence.” Id. at 345 (citation 
omitted); see generally Brief for Petitioners, Gomil­
lion v. Lightfoot, 364 U.S. 339, 1960 WL 98593 at 
**11-12 (Aug. 25, 1960) (then-LDF counsel Robert L. 
Carter and others argued ‘“evasive schemes’ de­
signed to achieve the same result [as express prohi­
bitions on voting qualifications or other geographic 
restrictions] are similarly forbidden [under the Four­
teenth and Fifteenth Amendment]”).

Following Gomillion, this Court’s decisions have 
repeatedly rejected the “fencing out” of discrete 
groups from the political process, and explained that 
the Fourteenth Amendment mandates inclusive and 
accessible democratic institutions. See, e.g., Reyn­
olds, 377 U.S. at 560-61; Carrington u. Rash, 380 
U.S. 89, 96 (1965); Harper v. Va. State Bd. of Elec­
tions, 383 U.S. 663, 667 (1966). As this Court has



16

instructed, “ [c]entral . . .  to the . . . Constitution’s 
guarantee of equal protection is the principle that 
government and each of its parts remain open on 
impartial terms to all who seek its assistance.” 
Romer u. Evans, 517 U.S. 620, 633 (1996). In other 
words, laws that tend to “fence out” discrete groups 
from access to representation and government are 
“not within our constitutional tradition.” Id.

Reynolds and other, similar cases have barred the 
most blatant and overt forms of exclusion from the 
democratic process. But, as this Court has previous­
ly recognized, making “eligible voters” the sine qua 
non of apportionment poses similar concerns about 
exclusion. See, e.g., Burns, 384 U.S. at 92-93.

Appellants’ proposed scheme for redistricting 
seeks to count out underserved groups—like persons 
not yet registered to vote, children, immigrants, and 
disfranchised persons—and would impose considera­
ble and concrete harms. Cf. Anderson v. Celebreeze, 
460 U.S. 780, 793 (1983) (“[I]t is especially difficult 
for the State to justify a restriction that limits politi­
cal participation by an identifiable political group 
whose members share a particular viewpoint, asso- 
ciational preference, or economic status.”). As the 
pre-Reynolds era showed, this sort of underrepresen­
tation has real-world consequences, see supra at 8- 
10, since the excluded constituents are less fully and 
faithfully represented in the legislative process, re­
sulting in policies that are less attentive to local 
needs and concerns.5 See Choper, supra, at 94 (not­

5 Today, urban areas account for 80.7% of the U.S. popula­
tion. U.S. Census, Growth in Urban Population Outpaces Rest 
of Nation, Census Bureau Reports (Mar. 26, 2012), available at 
https://www.census.gov/newsroom/releases/archives/2010_cens 
us/cbl2-50.html.

https://www.census.gov/newsroom/releases/archives/2010_cens


17

ing that prior to Reynolds urban dwellers’ “political 
influence had been seriously diluted by entrenched 
minority interests”); David C. Saffell, Reapportion­
ment and Public Policy: State Legislators’ Perspec­
tives, 9 Poly. Stud. J. 916, 921 (1981) (observing a 
“large number of single state studies conclude that 
reapportioned states became more responsive to ur­
ban needs” following Reynolds).

More problematically still, this derogation of rep­
resentative equality will fall most heavily on Black 
residents, immigrants, and other communities that 
already face historical and contemporary discrimina­
tion. In Black communities, for example, there are 
over 20 million people who are not “eligible voters,”6 
including about 13 million Black children,7 nearly 5 
million non-registered Black voters,8 2 million Black 
non-citizens,9 and 2 million Black individuals with 
felony convictions.10 Under Appellants’ “eligible vot­

6 Notably, with the exception of the figure for felony convic­
tions, these figures do not include institutionalized persons, 
and, thus, are merely a floor.

7 U.S. Census, Tbl. 29, Population by Sex and Age, for 
Black Alone or in Combination and White Alone, Not Hispanic 
(2012), available at https://www.census.gov/population/race/ 
data/ppl-bcl2.html.

8 U.S. Census, Tbl. 2, Reported Voting and Registration, by 
Race, Hispanic Origin, Sex, and Age (Nov. 2014), available at 
https://www.census.gov/hhes/www/socdemo/voting/publications/ 
p20/2014/tables.html.

This number does not account for an additional and nearly 
6 million Black persons who did not know or did not identify if 
they are registered voters. Id.

9 Id.
10 Christopher Uggen et al., State-Level Estimates of Felon 

Disenfranchisement in the United States, 2010, 17, Tbl. 4 (July

https://www.census.gov/population/race/
https://www.census.gov/hhes/www/socdemo/voting/publications/


18

er” approach, such individuals would be largely 
“fenced out” in ways this Court has rejected for dec­
ades.

That exclusion has tangible consequences that 
cannot be overlooked. For example, Black children 
disproportionately live in property and face substan­
tial barriers to education and health services.11 And 
black families and adults face seriously diminished 
life expectancies, health outcomes,12 and economic 
prospects.13 Addressing these serious problems re­
quires access to State and local representatives, 
which would be diminished under Appellants’ pro­
posal to apportion representatives based on “eligible 
voters.” As this Court has warned, population 
measures that “operate0 to the detriment of the 
poor, blacks, Mexican-Americans, and American In­
dians” are allowable only under limited circumstanc­
es. Ely v. Klahr, 403 U.S. 108, 115 n.7 (1971) (quot­
ing Burns, 384 U.S. at 92)).

2012), available at http://sentencingproject.org/doc/publications/ 
fd_State_Level_Estimates_of__Felon_Disen_2010.pdf.

11 Thirty-nine percent (39%) of Black children under 18 
years of age, as compared to 13% of white children, lived in 
poverty in 2013, more than any other racial/ethnic group. Natl 
Ctrs. for Educ. Statistics, Children Living in Poverty, at 3, 
available at https://nces.ed.gov/programs/coe/pdf/coe__cce.pdf.

12 See, e.g., Ctrs. for Disease Control and Prevention, 
Healthy life expectancies at age 65 highest in Hawaii, lowest in 
Mississippi (July 18, 2013), available at http://www.cdc. 
gov/media/releases/2013/p0718-life-expectancy.html.

13 See, e.g., Alan Huffman, How White Flight Ravaged the 
Mississippi Delta, The Atlantic (Jan. 6, 2010), available at 
http://www.theatlantic.com/business/arehive/2015/01/how- 
white-flight-ruined-the-mississippi-delta/384227.

http://sentencingproject.org/doc/publications/
https://nces.ed.gov/programs/coe/pdf/coe__cce.pdf
http://www.cdc
http://www.theatlantic.com/business/arehive/2015/01/how-white-flight-ruined-the-mississippi-delta/384227
http://www.theatlantic.com/business/arehive/2015/01/how-white-flight-ruined-the-mississippi-delta/384227


19

Appellants’ proposed “eligible voter” standard is 
also suspect because it is primed for political manip­
ulation. There is no clear definition of “eligible vot­
ers,” and the process of giving that term meaning 
creates abundant opportunity for gamesmanship, as 
Appellants’ own brief shows. Appellants most often 
suggest that “eligible voters” be counted using 
CVAP, Appellants’ Br. 18, but alternatively suggest 
that voter registration numbers might form an al­
ternative benchmark, id. at 9. That lack of defini­
tion will create opportunities for invidious manipula­
tion. For example, voting-age adults in urban areas 
register to vote at lower rates than their rural coun­
terparts, see Kimball W. Brace, Final Report of the 
2004 Election Day Survey 2-12 (2005); those adults 
who do not register are counted toward an area’s 
CVAP, but obviously are not included in its voter- 
registration figures. The use of voter-registration 
numbers therefore would indicate a lower “eligible 
voter” population than CVAP, providing improper 
incentives to legislators who might prefer to reduce 
that area’s representation. By contrast, total popu­
lation is easy to define and can be readily quantified 
using decennial census figures. See Karcher v. Dag­
gett, 462 U.S. 725, 738 (1983) (“ [T]he census data 
provide the only reliable—albeit less than perfect— 
indication of the districts’ Teal’ relative population 
levels.”).

For these reasons, this Court warned in Burns 
that apportionment based on registered or actual 
voter numbers is “susceptible to improper influences 
by which those in political power might be able to 
perpetuate underrepresentation of groups constitu­
tionally entitled to participate in the electoral pro­
cess or perpetuate a ‘ghost of prior malapportion­



20

ment.’” 384 U.S. at 92-93. But unless this Court is 
prepared to hold that the Constitution requires the 
use of CVAP or some similar measure to count “eli­
gible voters,” Appellants’ conception of “eligible vot­
ers” would routinely open the door to such abuses.

Even once legislators choose a standard for “eli­
gible voters,” they could further manipulate appor­
tionment through laws that alter the size and com­
position of the “eligible voter” population. The possi­
bility is well-illustrated by felon disfranchisement 
laws. State legislatures have latitude to restrict or 
eliminate the voting rights of people with felony con­
victions, see Richardson v. Ramirez, 418 U.S. 24 
(1974), and they do so in numerous ways: Nearly all 
states prohibit voting by those incarcerated for felo­
ny offenses; many deny the vote to individuals on 
probation or parole; and many states prescribe cum­
bersome processes for restoration of voting rights to 
ex-offenders. See Developments in the Law, One 
Person, No Vote: The Laws of Felon Disenfranchise­
ment, 115 Harv. L. Rev. 1939, 1942-43 (2002); Vir­
ginia E. Hench, The Death of Voting Rights: The Le­
gal Disenfranchisement of Minority Voters, 48 Case 
W. Res. L. Rev. 727, 767 (1998).

As a result of those laws, over 2.2 million Black 
Americans are ineligible to vote—fully 7.66% of 
Black adults. Christopher Uggen et al., State-Level 
Estimates of Felon Disenfranchisement in the United 
States, 2010, 17, Tbl. 4 (July 2012).14 Such re­
strictions directly vitiate the voting power of the ra­
cial minority groups and the economically disadvan­
taged groups from which individuals with felony

14 Available at http://felonvoting.procon.org/sourcefiles/2010 
State_Level_Estimates_of_Felon_Disenfranchisement.pdf.

http://felonvoting.procon.org/sourcefiles/2010


21

convictions disproportionately hail. See, e.g., Uggen 
& Manza, Democratic Contraction? Political Conse­
quences of Felon Disenfranchisement in the United 
States, 67 Am. Soc. Rev. 777 (2002). Rut under cer­
tain “eligible voter” apportionment regimes—ones 
based on voter registration, for example, see Appel­
lants’ Br. 9-12—disfranchised individuals with felo­
ny convictions would not even be counted as part of a 
district’s population in the first place, further dimin­
ishing the representative access and influence of the 
communities to which they belong.15

Voter registration restrictions create similar po­
tential for manipulation. Efforts to make voter reg­
istration more difficult by, for example, imposing 
documentation requirements, such as photo identifi­
cation or proof of citizenship, are an unfortunate re­
ality of contemporary American democracy. See Ko- 
bach v. Election Assistance Comm’n, 772 F.3d 1183, 
1199 (10th Cir. 2014) (denying States’ request to in­
clude documentary proof of citizenship language on 
federal voter registration form); see also Jim Ben­
nett, Alabama Secretary of State, Bennett Says Ala­
bama will Implement Voter Citizenship Requirement 
(Dec. 19, 2014) (following the Kobach decision, the 
State declaring its intent to proceed with implemen­

15 In Florida and Kentucky, for instance, which permanent­
ly bar people with felony convictions from voting, Appellants’ 
framework risks excluding 23% (more than half a million) and 
22% (more than 50,000) of the respective Black populations in 
those States, from the very representation that those individu­
als need to reintegrate into their communities and access jobs, 
health services, education, and more following incarceration. 
Christopher Uggen et al., State-Level Estimates of Felon Disen­
franchisement in the United States, 2010, 17, Tbl. 4 (July 2012), 
available at http://felonvoting.procon.org/sourcefiles/2010__ 
State_Level_Estimates_of_Felon_Disenfranchisement.pdf.

http://felonvoting.procon.org/sourcefiles/2010__


22

tation of proof of citizenship for new voters).16 Such 
burdens, too, disproportionately affect racial minori­
ties, low-income residents, and other communities 
that often lack the opportunity or resources to easily 
comply with heightened registration and voting re­
quirements. Cf. Veasey v. Abbott, 796 F.3d 487, 505- 
07 (5th Cir. 2015) (affirming finding that documen­
tary voting requirements disproportionately affect 
low-income voters and racial minorities, including 
more than 600,000 registered voters and one million 
eligible voters, overwhelmingly Black and Hispanic 
in Texas). Apportionment schemes based on voter 
registration, therefore, constitute yet another mech­
anism by which legislators could reduce the repre­
sentative access of poor communities and people of 
color under Appellants’ proposal.

This Court has “underscored the danger of appor­
tionment structures that contain a built-in bias tend­
ing to favor particular geographic areas or political 
interests or which will necessarily tend to favor . . . 
less populous districts over their more highly popu­
lated neighbors.” Abate v. Mundt, 403 U.S. 182, 185- 
86 (1971); see also Gray v. Sanders, 372 U.S. 368, 
379 (1963) (striking down, even before Reynolds, a 
voting scheme that assigned greater electoral power 
to less densely populated rural areas to the detri­

16 Available at http://www.sos.alabama.gov/pr/pr.aspx? 
ID=9330; see also Brennan Center for Justice at NYU School of 
Law, Citizens Without Proof (2006), available at 
http://www.brennancenter.org/sites/default/files/legacy/cl/downl 
oad_file_39242.pdf (reporting that 13 million individuals lack 
ready access to proof of citizenship documents like passports, 
naturalization papers, or birth certificates and more than 5.5 
million (or 25%) of Black voting-age citizens lack current gov­
ernment issued photo ID).

http://www.sos.alabama.gov/pr/pr.aspx
http://www.brennancenter.org/sites/default/files/legacy/cl/downl


23

ment of urban areas). Although drawing electoral 
lines based on voting metrics may, in limited cir­
cumstances, be permissible, this Court’s repeated 
warnings make clear that the practice is to be ap­
proached with great caution, and is, under no cir­
cumstances, constitutionally required. Abate, 403 
U.S. at 185-86; Ely, 403 U.S. at 115 n.7.

B. Appellants’ Proposal Does Not Have a 
Constitutional Value That Justifies Its 
Deleterious Effect on Representational 
Equality.

In light of its harmful effects, the use of an “eligi­
ble voter” apportionment model that is easy to ma­
nipulate would be questionable even if it advanced 
some identifiable constitutional purpose. But it does 
not.

Although Appellants assert a right to an “equal 
vote” that is not “diluted,” Appellants’ Br. 14, and a 
right to a vote that ‘“counts as much . . .  as any other 
person’s,”’ id. at 16 (quoting Hadley v. Junior Coll. 
Dist., 397 U.S. 50, 54 (1970)), they provide no mean­
ingful proposal for measuring “an equally weighted 
vote,” id. at 26, much less equal representation. In­
stead, they proceed entirely on the assumption that 
“an equally weighted vote” means only one thing—a 
vote cast in a district with the same number of “eli­
gible voters” as other districts. See, e.g., id. at 3, 15. 
But that circular argument—which Appellants never 
even attempt to justify—is entirely question-begging 
and unmoored from this Court’s precedents.

Appellants’ proposal collapses under even the 
most cursory of scrutiny. Neither individual voters 
nor groups of voters benefit in any tangible way from 
districts with equal numbers of “eligible voters.” A



24

vote’s weight in an election turns on a host of varia­
bles other than district size, including a district’s 
partisan constituency, competitiveness, and voter 
turnout. Since many variables are more important 
to a vote’s real-world impact than “eligible voter 
population,” Appellants’ idea of an “equal vote” has 
no obvious real-world or theoretical significance. See 
generally Joseph Fishkin, Weightless Votes, 121 Yale
L.J. 1888 (2012). It also lacks a constitutional signif­
icance that might justify the representational harms 
that Appellants’ theory would inflict.

This Court’s precedents confirm the point. In 
Whitcomb, this Court rejected a theoretical model of 
“voting power” that ignored “the quality or effective­
ness of representation later furnished by the success­
ful candidates.” 403 U.S. at 145; id. at 168 (Harlan, 
J., concurring in part and dissenting in part). This 
Court held that model irrelevant to one person, one 
vote analysis because “the position remains a theo­
retical one and . . . does not take into account any 
political or other factors which might affect the actu­
al voting power of the residents, which might include 
party affiliation, race, previous voting characteristics 
or any other factors which go into the entire political 
voting situation.” Id. at 145-46 (opinion of the 
Court) (quotation and footnote omitted). See also 
Morris, 489 U.S. at 697, 699 (again rejecting a theo­
retical model of equal “voting power” and explaining 
equal population, not statistical abstraction, is the 
relevant touchstone for compliance with one person, 
one vote).

This case warrants yet more skepticism than 
Whitcomb and Morris. Appellants’ circular concep­
tion of an “equal vote” is even weaker than those 
previously rejected by this Court, and suffers from



25

the same glaring weaknesses— viz., it is completely 
blind to the factors that actually determine a vote’s 
real-world impact. Appellants fail to demonstrate 
that their set of new standards would benefit any 
voter anywhere in any way. But their proposal’s po­
tential harms to representational access and the 
dignity of Blacks and other racial minorities are 
crystal clear. They cannot be justified by such un­
precedented and hollow suppositions about the 
“right to an equal vote.” Appellants’ Br. 18.
III. THERE IS NO CONFLICT BETW EEN ONE  

PERSON, ONE VOTE AND SECTION 2 OF 
THE VOTING  RIGHTS ACT.

Although this case plainly does not arise under 
Section 2 of the VRA—passed only a year after this 
Court’s decision in Reynolds—a handful of amici cu­
riae17 insist that this Court must resolve a “bloody 
crossroads” between that provision and one person, 
one vote jurisprudence. Cato Juris. Br. 4. CVAP da­
ta may be used (as just one of many factors) to prove 
and devise remedies for Section 2 violations. Accord­
ingly, these amici suggest, CVAP data should also 
govern constitutional challenges under one person, 
one vote, lest jurisdictions “navigating between the 
VRA’s Scylla and the Constitution’s Charybdis . . . 
wreck individual rights . . .  on judicial shoals.” Id. at 
2.

17 See Brief of the Cato Institute and Reason Foundation as 
Amici Curiae Supporting Appellants (“Cato Br.”); Brief of the 
Cato Institute and Reason Foundation as Amici Curiae Sup­
porting Appellants’ Jurisdictional Statement (“Cato Juris. 
Br.”); Brief for Project 21 as Amicus Curiae in Support of Appel­
lants (“Project 21 Br.”); Brief of the City of Yakima, Washing­
ton as Amicus Curiae Supporting Appellants (‘Yakima Br.”).



26

This is wrong in principle and practice. For one, 
amici would incorrectly have this Court construe a 
constitutional requirement in light of a perceived 
and later-in-time statutory requirement. Moreover, 
there is a reason why one person, one vote and Sec­
tion 2 have coexisted for 50 years without any splin­
tered hulls: the two doctrines address fundamentally 
different concerns. The former governs how many 
people should be in a district to ensure representa­
tive equality; the latter addresses who should be in 
each district to ensure collective voting opportunity 
for particular, protected groups. Those distinct con­
cerns permit, and may often require, different demo­
graphic data to be used in different ways: Whereas 
one person, one vote looks to total population to en­
sure that districts are equally populous, Section 2 
permits the use of CVAP as one of many measures to 
ensure that a geographically cohesive minority group 
is given the opportunity to elect candidates of its 
choice and participate equally in the political process 
in the presence of racially polarized voting. There is 
no logical basis to insist that such fundamentally dif­
ferent inquiries rest on identical demographic data.

A. In Principle, There Is No Conflict Be­
tw een One Person, One Vote and Sec­
tion 2.

Section 2 of the VRA and the Fourteenth 
Amendment’s equal population guarantee promote 
political equality through complementary yet dis­
tinctive standards. While these standards overlap in 
their ultimate aim, they embody different rights, are 
directed to individuals in distinct groups, and play 
fundamentally different roles in fostering a well­
functioning political process. Thus, it is no surprise



27

that these guarantees may at times focus on differ­
ent demographic data.

The one person, one vote doctrine is grounded 
squarely in the Equal Protection Clause. See Reyn­
olds, 377 U.S. at 566. Consistent with the Four­
teenth Amendment’s guarantee of equal protection 
to all persons, Yick Wo, 118 U.S. at 356, the equal 
population principle broadly protects “the fundamen­
tal principle of representative government . . .  of 
equal representation for equal numbers of people.” 
Reynolds, 377 U.S. at 560-61; Kirkpatrick, 394 U.S. 
at 526 (“Equal representation for equal numbers of 
people is a principle designed to prevent debasement 
of voting power and diminution of access to elected 
representatives.”); supra Part I.

By contrast, the VRA derives from Congress’s 
power to enforce the Fourteenth and Fifteenth 
Amendments. South Carolina u. Katzenbach, 383 
U.S. 301, 327 (1966); see also Voinouich u. Quilter, 
507 U.S. 146, 152 (1993); Lodge v. Buxton, 639 F.2d 
1358 (5th Cir. 1981), aff’d sub nom. Rogers v. Lodge, 
458 U.S. 613 (1982). The Fourteenth Amendment 
prohibits a voting scheme ‘“conceived or operated as 
[a] purposeful deviceQ to further racial discrimina­
tion’ by minimizing, cancelling out or diluting the 
voting strength of racial elements in the voting popu­
lation.” Rogers, 458 U.S. at 617. The Fifteenth 
Amendment ensures that the right to vote “shall not 
be denied or abridged” “on account of race” or “color.” 
Section 2 thus focuses on a minority group’s ability 
to “elect representatives of their choice” and partici­
pate equally in the political process. 52 U.S.C. 
§ 10301(b). Its goal is to maintain fairness and 
equality of opportunity in the political process by ex­
amining the aggregate voting power of individuals in



28

a minority group: Section 2 ensures that when a
State exercises its discretion to reapportion or use an 
electoral scheme, it does not diminish a minority 
group’s “potential to elect” its preferred representa­
tives. Gingles, 478 U.S. at 50 n.17 (1986) (emphasis 
omitted).

To that end, courts adjudicating Section 2 chal­
lenges often consider additional measures beyond 
total population like voting-age population (“VAP”) 
and/or CVAP data at the liability stage to determine 
whether individuals in a protected minority group 
are sufficiently large and cohesive that they could 
exercise their voting power to elect candidates of 
their choice.18 VAP, CVAP, and/or other data also 
may be relevant at the remedial phase to ensure that 
the proposed remedy can secure that group’s poten­
tial to elect its preferred representatives.

Different tasks require different data. One per­
son, one vote aims to ensure representational equali­
ty for all persons protected by the Fourteenth 
Amendment; Section 2 aims to ensure actual elec­
toral opportunity for individuals in a particular mi­
nority voting group as an implementation of the 
Fourteenth and Fifteenth Amendments. Thus, far 
from being in conflict, Section 2 complements the 
equal population principle by ensuring State appor­
tionment schemes do not undermine the opportunity

18 Courts can and do choose from a wide variety of popula­
tion bases in answering the question of whether individuals in 
a minority population are “sufficiently large” to constitute a 
majority in a district. See, e.g., Johnson v. DeGrandy, 512 U.S. 
997, 1008-10 (1994) (expressly declining to decide which meas­
ure should be used to establish a population measure); see also 
LULAC, 548 U.S. at 429 (affirming use of CVAP); Bartlett v. 
Strickland, 556 U.S. 1 (2009) (consistently referring to VAP).



29

of individuals in a protected group to elect candi­
dates of their choice. See Gaffney, 412 U.S. at 751 
(“A districting plan may create multimember dis­
tricts perfectly acceptable under equal population 
standards, but invidiously discriminatory because 
they are employed ‘to minimize or cancel out the vot­
ing strength of racial or political elements of the vot­
ing population.’” (quoting Forston v. Dorsey, 379 U.S. 
433, 439 (1965))). Given these fundamental differ­
ences, it would be unreasonable to require that these 
two doctrines be measured against the same stand­
ard.

B. In Practice, There Is No Conflict Be­
tween One Person, One Vote and Sec­
tion 2.

Amici contend that if one person, one vote and 
Section 2 are construed to rely on different popula­
tion bases, the two standards would inevitably con­
flict: Districts drawn with CVAP data to comply
with Section 2 would violate one person, one vote 
and vice versa. See, e.g., Cato Br. 33-35. This argu­
ment misunderstands how the two standards oper­
ate in practice. In reality, there is no such conflict.

Under Gingles, plaintiffs (members of a minority 
group) must make a three-part, threshold showing in 
proving a Section 2 vote-dilution claim: (1) they must 
be “sufficiently large and geographically compact to 
constitute a majority in a single-member district”; (2) 
they must be “politically cohesive” ; and (3) the ma­
jority must vote “sufficiently as a bloc to enable it . . . 
to defeat the minority’s preferred candidate.” 478 
U.S. at 50-51. Although this Court has never ex­
pressly required the use of any particular set of data 
to determine if the first Gingles factor is satisfied,



30

some courts of appeals have determined CVAP is the 
appropriate population base when considering the 
size and cohesion of voting blocs in a Section 2 anal­
ysis.19

But while CVAP (or some other) data can satisfy 
that factor, that is not enough to establish a Section 
2 violation. “ [W]hen a party has established the 
Gingles requirements . . .  a court proceed[s] to ana­
lyze whether a violation has occurred based on the 
totality of the circumstances.” Bartlett u. Strickland, 
556 U.S. 1, 11-12 (2009). These circumstances can 
include the extent to which voting is racially polar­
ized, proportionality between the number of districts 
in which members of the protected group form an ef­
fective majority and the group’s share of the popula­
tion in the relevant area, the state’s history of vot­
ing-related discrimination, and the extent to which 
members of the minority group are elected to politi­
cal office in the challenged jurisdiction. See, e.g., 
LULAC, 548 U.S. at 426; Bartlett, 556 U.S. at 29. 
Thus, CVAP and other data are small pieces of a 
much larger evidentiary puzzle in the Section 2 con­
text. See Johnson v. DeGrandy, 512 U.S. 997, 1020- 
21 (1994) (“No single statistic provides courts with a 
shortcut to determine whether” a state districting 
scheme “unlawfully dilutes minority voting 
strength.”).

Nor does CVAP, or some other data dictate any 
particular remedy. States and local jurisdictions, 
which generally are afforded the first opportunity to

19 See, e.g., Valdespino v. Alamo Heights Indep. Sch. Dist., 
168 F.3d 848, 853 (5th Cir. 1999) (considering VAP and CVAP); 
Barnett v. City of Chi., 141 F.3d 699, 704-05 (7th Cir. 1998) (us­
ing CVAP).



31

exercise their political judgment as to how to remedy 
Section 2 violations, White v. Weiser, 412 U.S. 783, 
794-96 (1973), “retain broad discretion in drawing 
districts to comply with the mandate of § 2.” Shaw, 
517 U.S. at 917 n.9. Because “reapportionment is 
primarily the duty and responsibility of the State,” 
Chapman u. Meier, 420 U.S. 1, 27 (1975), Section 2 
remedies may properly account for legitimate State 
policies, provided that the remedy ultimately en­
sures that members of a minority group have the po­
tential to elect their preferred candidates. See Voi- 
novich, 507 U.S. at 156; accord Fairley v. Hatties­
burg, Miss., 584 F.3d 660, 670 (5th Cir. 2009) 
(“Courts are expected, in evaluating redistrict plans, 
to take into account traditional districting principles 
such as maintaining communities of interest and 
traditional boundaries.” (quotation and citation 
omitted)). Consequently, CVAP (or some other) data 
need not be the driving force behind remedial redis­
tricting20; indeed, a State might constitutionally em­
ploy an electoral scheme that eschews districts alto­
gether.21 And even if CVAP data is used, there al­

20 The dispute in Garza, for instance, arose from the use of 
total population data to remedy a Section 2 violation. Garza v. 
Cty. of L.A., 918 F.2d 763, 773-75 (9th Cir. 1990); see also Fa- 
bela v. City of Farmers Branch, Tex., No. 10-1425, 2012 WL 
3135545, at *6 n.13 (N.D. Tex. Aug. 2, 2012) (“Regarding de­
fendants’ one-person, one-vote challenge, among the options 
available to Farmers Branch to remedy a § 2 violation is to 
draw single-member districts based on total population.”).

21 Because “geographic districting is not a requirement in­
herent in our political system,” Holder v. Hall, 512 U.S. 874, 
911 (1994) (Thomas, J., concurring); id. at 910 n. 17 (observing 
that “cumulative voting in an at-large system has been em­
ployed in some American jurisdictions”), there is nothing that 
would prevent a State from adopting, for example, a system of 
cumulative or limited voting to remedy a Section 2 violation.



32

ways remains “more than one way to draw a dis­
trict.” Chen v. City of Houston, 206 F.3d 502, 519 
(5th Cir. 2000).22

States’ considerable “flexibility” in implementing 
one person, one vote, Reynolds, 377 U.S. at 579, pro­
vides ample constitutional latitude to craft Section 2 
remedies. The Equal Protection Clause does not 
mandate rigid population equality for state reappor­
tionment; rather, deviations of up to 10% are consti­
tutionally permissible, as States are afforded signifi­
cant leeway to accommodate other legitimate gov­
ernment interests. See Brown v. Thomson, 462 U.S. 
835, 852 (1983). Even deviations above 10% may be 
constitutional if not significantly greater than neces­

See Branch v. Smith, 538 U.S. 254, 310 (2003) (O’Connor, J., 
concurring in part and dissenting in part) (“a court could design 
an at-large election plan that awards seats on a cumulative 
basis, or by some other method that would result in a plan that 
satisfies the Voting Rights Act”); see also Yakima Br. 25.

22 Dillard v. Town of Louisville, 730 F. Supp. 1546 (M.D. 
Ala. 1990), illustrates perfectly how Section 2’s remedial flexi­
bility operates to avoid any potential conflict with the Four­
teenth Amendment. There, the town of Louisville, Alabama 
proposed a remedial plan containing two non-contiguous major­
ity-minority districts because current population distribution 
meant that no single-member districting scheme could be de­
vised that remedied the Section 2 violation, complied with one 
person, one vote, and consisted only of contiguous districts. Id. 
at 1549. Observing that courts “should be flexible . . . and 
should not seek to apply rigid, abstract formulas divorced from 
reality,” the Dillard court held that, based on the totality of 
circumstances, the plan fulfilled the town’s obligations under 
Section 2 and the Equal Protection Clause while meeting the 
town’s “practical needs” and accommodating “a sense of com­
munity within each district.” Id. at 1549-50; see also Dillard v. 
Chilton Cty. Bd. of Educ., 699 F. Supp. 870, 876 (M.D. Ala. 
1988), aff’d, 868 F.2d 1274 (11th Cir. 1989).



33

sary to serve legitimate State concerns. Id.; Abate, 
403 U.S at 185. This mutually reinforcing flexibility 
means that States do not have to thread the needle 
to comply with Section 2 and one person, one vote.

Indeed, an actual conflict is exceedingly 
farfetched—if not impossible. The numerous briefs 
filed by amici advancing this argument have failed 
to cite a single case, in more than 50 years since the 
passage of the VRA, where a remedial plan conflict­
ed with the equal population requirement. And 
there does not appear to be a single example of such 
a conflict under the Constitution’s less flexible re­
quirements for congressional apportionment, which 
require near-absolute fidelity to population equality, 
Kirkpatrick, 394 U.S. at 530-31. What amici curi­
ously refer to as a “bloody crossroads,” see Cato Ju­
ris. Br. 4, in fact presents no real conflict at all.

Moreover, even if this imaginary contingency 
somehow became real, the solution to amici's hypo­
thetical “conflict” would be simple: There would be 
no conflict because Section 2 does not authorize a 
state to violate the Fourteenth Amendment. In oth­
er words, a constitutional remedy is a necessary part 
of a Section 2 claim. See Holder v. Hall, 512 U.S. 
874, 880 (1994) (“In a § 2 vote dilution suit, along 
with determining whether the Gingles preconditions 
are met and whether the totality of the circumstanc­
es supports a finding of liability, a court must find a 
reasonable alternative practice as a benchmark 
against which to measure the existing voting prac­
tice.” (footnote omitted)); Nipper v. Smith, 39 F.3d 
1494, 1533 (11th Cir. 1994) (en banc) (“The absence 
of an available remedy is not only relevant at the 
remedial stage of the litigation, but also precludes, 
under the totality of the circumstances inquiry, a



34

finding of liability.”); Montes v. City of Yakima, 40 F. 
Supp. 3d 1377, 1399 (E.D. Wash. 2014) (“ [I]f the 
plaintiff proves by a preponderance of the evidence 
that a workable remedy can be fashioned, the first 
Gingles precondition is satisfied.”). Because a plain­
tiff could not state a viable Section 2 claim where the 
only remedy would require violating the Equal Pro­
tection Clause, there could be no conflict.23

CONCLUSION

What this Court said in Reynolds remains true: 
“as a basic constitutional standard, the Equal Pro­
tection Clause requires that the seats must be ap­
portioned on a population basis.” 377 U.S. at 568. 
The “fundamental principle of representative gov­
ernment is one of equal representation for equal 
numbers of people.” Id. at 560-61.

Appellants’ sweeping new theory, centered on the 
indeterminate concept of “eligible voters,” risks 
“fencing out” Black people and other communities of 
color from this country’s representative institutions. 
The ultimate, disastrous result would be two classes 
of people: those who count for purposes of represen­
tation and redistricting, and those who do not. This 
Court should reject Appellants’ theory and reaffirm 
the principle enshrined in 50 years of practice and

23 Amicus Project 21 suggests that inconsistent standards 
under Section 2 and one person, one vote might foster Equal 
Protection violations by affording additional opportunities to 
engage in “race-conscious decision-making in drawing majority- 
minority districts.” Project 21 Br. 17. But as amicus apparent­
ly acknowledges, this Court has already set sharp limits on the 
use of race in remedial redistricting. Bush v. Vera, 517 U.S. 
952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996); Miller v. John­
son, 515 U.S. 900 (1995).



35

precedent—that representative government serves 
all persons within our nation’s boundaries equally.

For the foregoing reasons, the judgment of the 
district court should be affirmed.

Sh e r r il y n  Ifill  
Director- Counsel 

Ja n a i N e lso n  
C h r is t in a  Sw a r n s  
L eah  A d e n  
L il ia n a  Za r a g o za  
NAACP L e g a l  D e fe n se  & 

Ed u c a t io n a l  Fu n d , In c . 
40 Rector Street, 5th Floor 
New York, NY 10006

C o t y  M o n ta g  
J o h n  Pa u l  S c h n a p p e r - 

Ca s t e r a s
NAACP L e g a l  D e fe n se  & 
E d u c a t io n a l  F u n d , In c . 

1444 I Street NW, 
Washington, DC 20005

Respectfully submitted.
W a l t e r  D e ll in g e r  
('Counsel of Record) 

wdellinger@omm.com 
B r a d l e y  N. G a r c ia  
Ja s o n  Za r r o w  
O ’M e lv e n y  & M ye r s  LLP  
1625 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 383-5300

D a n ie l l e  C. G r a y  
O ’M e lv e n y  & M y e r s  LLP 
Times Square Tower 
7 Times Square 
New York. N.Y. 10036 
(212) 326-2000

Counsel for Amicus Curiae

September 25, 2015

mailto:wdellinger@omm.com


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