Texas, like all other States, draws its legislative districts on the basis of total population. Plaintiffs-appellants are Texas voters; they challenge this uniform method of districting on the ground that it produces unequal districts when measured by voter-eligible population. Voter-eligible population, not total population, they urge, must be used to ensure that their votes will not be devalued in relation to citizens' votes in other districts. We hold, based on constitutional history, this Court's decisions, and longstanding practice, that a State may draw its legislative districts based on total population.
This Court long resisted any role in overseeing the process by which States draw legislative districts. "The remedy for unfairness in districting," the Court once held, "is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress." Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 S.Ct. 1432 (1946). "Courts ought not to enter this political thicket," as Justice Frankfurter put it. Ibid.
Judicial abstention left pervasive malapportionment unchecked. In the opening half of the 20th century, there was a massive population shift away from rural areas and toward suburban and urban communities. Nevertheless, many States ran elections into the early 1960's based on maps drawn to equalize each district's population as it was composed around 1900. Other States used maps allocating a certain number of legislators to each county regardless of its population. These schemes left many rural districts significantly underpopulated in comparison with urban and suburban districts. But rural legislators who benefited from malapportionment had scant incentive to adopt new maps that might put them out of office.
The Court confronted this ingrained structural inequality in Baker v. Carr, 369 U.S. 186, 191-192, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). That case presented an equal protection challenge to a Tennessee state-legislative map that had not been redrawn since 1901. See also id., at 192, 82 S.Ct. 691 (observing that, in the meantime, there had been "substantial growth and redistribution" of the State's population). Rather than steering clear of the political thicket yet again, the Court held for the first time that malapportionment claims are justiciable. Id., at 237, 82 S.Ct. 691 ("We conclude that the complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision.").
Although the Court in Baker did not reach the merits of the equal protection claim, Baker's justiciability ruling set the stage for what came to be known as the one-person, one-vote principle. Just two years after Baker, in Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the Court invalidated Georgia's malapportioned congressional map, under which the population of one congressional district was "two to three times" larger than the population of the others. Relying on Article I, § 2, of the Constitution, the Court required that congressional districts be drawn with equal populations. Id., at 7, 18, 84 S.Ct. 526. Later that same Term, in Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Court upheld an equal protection challenge to Alabama's malapportioned state-legislative maps. "[T]he Equal Protection Clause," the Court concluded, "requires that the seats
Over the ensuing decades, the Court has several times elaborated on the scope of the one-person, one-vote rule. States must draw congressional districts with populations as close to perfect equality as possible. See Kirkpatrick v. Preisler, 394 U.S. 526, 530-531, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). But, when drawing state and local legislative districts, jurisdictions are permitted to deviate somewhat from perfect population equality to accommodate traditional districting objectives, among them, preserving the integrity of political subdivisions, maintaining communities of interest, and creating geographic compactness. See Brown v. Thomson, 462 U.S. 835, 842-843, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983). Where the maximum population deviation between the largest and smallest district is less than 10%, the Court has held, a state or local legislative map presumptively complies with the one-person, one-vote rule. Ibid.
In contrast to repeated disputes over the permissibility of deviating from perfect population equality, little controversy has centered on the population base jurisdictions must equalize. On rare occasions, jurisdictions have relied on the registered-voter or voter-eligible populations of districts. See Burns v. Richardson, 384 U.S. 73, 93-94, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) (holding Hawaii could use a registered-voter population base because of "Hawaii's special population problems" — in particular, its substantial temporary military population). But, in the overwhelming majority of cases, jurisdictions have equalized total population, as measured by the decennial census. Today, all States use total-population numbers from the census when designing congressional and state-legislative districts, and only seven States adjust those census numbers in any meaningful way.
Appellants challenge that consensus. After the 2010 census, Texas redrew its State Senate districts using a total-population baseline. At the time, Texas was subject to the preclearance requirements of § 5 of the Voting Rights Act of 1965. 52 U.S.C. § 10304 (requiring jurisdictions to receive approval from the U.S. Department of Justice or the U.S. District Court for the District of Columbia before implementing certain voting changes). Once it became clear that the new Senate map, S148, would not receive preclearance in advance of the 2012 elections, the U.S. District Court for the Western District of Texas drew an interim Senate map, S164, which also equalized the total population of each district. See Davis v. Perry, No. SA-11-CV-788, 2011 WL 6207134 (Nov. 23, 2011).
The District Court, on remand, again used census data to draw districts so that each included roughly the same size total population. Texas used this new interim map, S172, in the 2012 elections, and, in 2013, the Texas Legislature adopted S172 as the permanent Senate map. See App. to Brief for Texas Senate Hispanic Caucus et al. as Amici Curiae 5 (reproducing the current Senate map). The permanent map's maximum total-population deviation is 8.04%, safely within the presumptively permissible 10% range. But measured by a voter-population baseline — eligible voters or registered voters — the map's maximum population deviation exceeds 40%.
Appellants Sue Evenwel and Edward Pfenninger live in Texas Senate districts (one and four, respectively) with particularly large eligible- and registered-voter populations. Contending that basing apportionment on total population dilutes their votes in relation to voters in other Senate districts, in violation of the one-person, one-vote principle of the Equal Protection Clause,
The case was referred to a three-judge District Court for hearing and decision. See 28 U.S.C. § 2284(a); Shapiro v. McManus,
We noted probable jurisdiction, 575 U.S. ___, 136 S.Ct. 381, 193 L.Ed.2d 288 (2015), and now affirm.
The parties and the United States advance different positions in this case. As they did before the District Court, appellants insist that the Equal Protection Clause requires jurisdictions to draw state and local legislative districts with equal voter-eligible populations, thus protecting "voter equality," i.e., "the right of eligible voters to an equal vote." Brief for Appellants 14.
In agreement with Texas and the United States, we reject appellants' attempt to locate a voter-equality mandate in the Equal Protection Clause. As history, precedent, and practice demonstrate, it is plainly permissible for jurisdictions to
We begin with constitutional history. At the time of the founding, the Framers confronted a question analogous to the one at issue here: On what basis should congressional districts be allocated to States? The Framers' solution, now known as the Great Compromise, was to provide each State the same number of seats in the Senate, and to allocate House seats based on States' total populations. "Representatives and direct Taxes," they wrote, "shall be apportioned among the several States which may be included within this Union, according to their respective Numbers." U.S. Const., Art. I, § 2, cl. 3 (emphasis added). "It is a fundamental principle of the proposed constitution," James Madison explained in the Federalist Papers, "that as the aggregate number of representatives allotted to the several states, is to be... founded on the aggregate number of inhabitants; so, the right of choosing this allotted number in each state, is to be exercised by such part of the inhabitants, as the state itself may designate." The Federalist No. 54, p. 284 (G. Carey & J. McClellan eds. 2001). In other words, the basis of representation in the House was to include all inhabitants — although slaves were counted as only three-fifths of a person — even though States remained free to deny many of those inhabitants the right to participate in the selection of their representatives.
When debating what is now the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats. Concerned that Southern States would not willingly enfranchise freed slaves, and aware that "a slave's freedom could swell his state's population for purposes of representation in the House by one person, rather than only three-fifths," the Framers of the Fourteenth Amendment considered at length the possibility of allocating House seats to States on the basis of voter population. J.
In December 1865, Thaddeus Stevens, a leader of the Radical Republicans, introduced a constitutional amendment that would have allocated House seats to States "according to their respective legal voters"; in addition, the proposed amendment mandated that "[a] true census of the legal voters shall be taken at the same time with the regular census." Cong. Globe, 39th Cong., 1st Sess., 10 (1866). Supporters of apportionment based on voter population employed the same voter-equality reasoning that appellants now echo. See, e.g., id., at 380 (remarks of Rep. Orth) ("[T]he true principle of representation in Congress is that voters alone should form the basis, and that each voter should have equal political weight in our Government...."); id., at 404 (remarks of Rep. Lawrence) (use of total population "disregards the fundamental idea of all just representation, that every voter should be equal in political power all over the Union").
Voter-based apportionment proponents encountered fierce resistance from proponents of total-population apportionment. Much of the opposition was grounded in the principle of representational equality. "As an abstract proposition," argued Representative James G. Blaine, a leading critic of allocating House seats based on voter population, "no one will deny that population is the true basis of representation; for women, children, and other non-voting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot." Id., at 141. See also id., at 358 (remarks of Rep. Conkling) (arguing that use of a voter-population basis "would shut out four fifths of the citizens of the country — women and children, who are citizens, who are taxed, and who are, and always have been, represented"); id., at 434 (remarks of Rep. Ward) ("[W]hat becomes of that large class of non-voting tax-payers that are found in every section? Are they in no matter to be represented? They certainly should be enumerated in making up the whole number of those entitled to a representative.").
The product of these debates was § 2 of the Fourteenth Amendment, which retained total population as the congressional apportionment base. See U.S. Const., Amdt. 14, § 2 ("Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."). Introducing the final version of the Amendment on the Senate floor, Senator Jacob Howard explained:
Appellants ask us to find in the Fourteenth Amendment's Equal Protection Clause a rule inconsistent with this "theory of the Constitution." But, as the Court recognized in Wesberry, this theory underlies
Cordoning off the constitutional history of congressional districting, appellants stress two points.
Second, appellants and Justice ALITO urge, see post, at 1144-1145, the Court has typically refused to analogize to features of the federal electoral system —
Reynolds and Gray, however, involved features of the federal electoral system that contravene the principles of both voter and representational equality to favor interests that have no relevance outside the federal context. Senate seats were allocated to States on an equal basis to respect state sovereignty and increase the odds that the smaller States would ratify the Constitution. See Wesberry, 376 U.S., at 9-13, 84 S.Ct. 526 (describing the history of the Great Compromise). See also Reynolds, 377 U.S., at 575, 84 S.Ct. 1362 ("Political subdivisions of States — counties, cities, or whatever — never were and never have been considered as sovereign entities.... The relationship of the States to the Federal Government could hardly be less analogous."). "The [Electoral] College was created to permit the most knowledgeable members of the community to choose the executive of a nation whose continental dimensions were thought to preclude an informed choice by the citizenry at large." Williams v. Rhodes, 393 U.S. 23, 43-44, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (Harlan, J., concurring in result). See also Gray, 372 U.S., at 378, 83 S.Ct. 801 ("The inclusion of the electoral college in the Constitution, as the result of specific historical concerns, validated the collegiate principle despite its inherent numerical inequality." (footnote omitted)). By contrast, as earlier developed, the constitutional scheme for congressional apportionment rests in part on the same representational concerns that exist regarding state and local legislative districting. The Framers' answer to the apportionment question in the congressional context therefore undermines appellants' contention that districts must be based on voter population.
Consistent with constitutional history, this Court's past decisions reinforce the conclusion that States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. Quoting language from those decisions that, in appellants' view, supports the principle of equal voting power — and emphasizing the phrase "one-person, one-vote" — appellants contend that the Court had in mind, and constantly meant, that States should equalize the voter-eligible population of districts. See Reynolds, 377 U.S., at 568, 84 S.Ct. 1362 ("[A]n individual's right to vote for State legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living on other parts of the State."); Gray, 372 U.S., at 379-380, 83 S.Ct. 801 ("The concept of `we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications."). See also Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U.S. 50, 56, 90 S.Ct. 791,
For every sentence appellants quote from the Court's opinions, one could respond with a line casting the one-person, one-vote guarantee in terms of equality of representation, not voter equality. In Reynolds, for instance, the Court described "the fundamental principle of representative government in this country" as "one of equal representation for equal numbers of people." 377 U.S., at 560-561, 84 S.Ct. 1362. See also Davis v. Bandemer, 478 U.S. 109, 123, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) ("[I]n formulating the one person, one vote formula, the Court characterized the question posed by election districts of disparate size as an issue of fair representation."); Reynolds, 377 U.S., at 563, 84 S.Ct. 1362 (rejecting state districting schemes that "give the same number of representatives to unequal numbers of constituents"). And the Court has suggested, repeatedly, that districting based on total population serves both the State's interest in preventing vote dilution and its interest in ensuring equality of representation. See Board of Estimate of City of New York v. Morris, 489 U.S. 688, 693-694, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989) ("If districts of widely unequal population elect an equal number of representatives, the voting power of each citizen in the larger constituencies is debased and the citizens in those districts have a smaller share of representation than do those in the smaller districts."). See also Kirkpatrick, 394 U.S., at 531, 89 S.Ct. 1225 (recognizing in a congressional-districting case that "[e]qual representation for equal numbers of people is a principle designed to prevent debasement of voting power and diminution of access to elected representatives").
Moreover, from Reynolds on, the Court has consistently looked to total-population figures when evaluating whether districting maps violate the Equal Protection Clause by deviating impermissibly from perfect population equality. See Brief for Appellees 29-31 (collecting cases brought under the Equal Protection Clause). See also id., at 31, n. 9 (collecting congressional-districting cases). Appellants point to no instance in which the Court has determined the permissibility of deviation based on eligible- or registered-voter data. It would hardly make sense for the Court to have mandated voter equality sub silentio and then used a total-population baseline to evaluate compliance with that rule. More likely, we think, the Court has always assumed the permissibility of drawing districts to equalize total population.
"In the 1960s," appellants counter, "the distribution of the voting population generally did not deviate from the distribution of total population to the degree necessary to raise this issue." Brief for Appellants 27. To support this assertion, appellants cite only a District Court decision, which found no significant deviation in the distribution of voter and total population in "densely populated areas of New York State." WMCA, Inc. v. Lomenzo, 238 F.Supp. 916,
What constitutional history and our prior decisions strongly suggest, settled practice confirms. Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries. Appellants have shown no reason for the Court to disturb this longstanding use of total population. See Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 678, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) ("unbroken practice" followed "openly and by affirmative state action, not covertly or by state inaction, is not something to be lightly cast aside"). See also Burson v. Freeman, 504 U.S. 191, 203-206, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (plurality opinion) (upholding a law limiting campaigning in areas around polling places in part because all 50 States maintain such laws, so there is a "widespread and time-tested consensus" that legislation of this order serves important state interests). As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. See supra, at 1126-1129. Nonvoters have an important stake in many policy debates — children, their parents, even their grandparents, for example, have a stake in a strong public-education system — and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, totalpopulation apportionment promotes equitable and effective representation. See McCormick v. United States, 500 U.S. 257, 272, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991) ("Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator.").
In sum, the rule appellants urge has no mooring in the Equal Protection Clause. The Texas Senate map, we therefore conclude, complies with the requirements of the one-person, one-vote principle.
For the reasons stated, the judgment of the United States District Court for the Western District of Texas is
Affirmed.
Justice THOMAS, concurring in the judgment.
This case concerns whether Texas violated the Equal Protection Clause — as interpreted by the Court's one-person, one-vote cases — by creating legislative districts that contain approximately equal total population but vary widely in the number of eligible voters in each district. I agree with the majority that our precedents do not require a State to equalize the total number of voters in each district. States may opt to equalize total population. I therefore concur in the majority's judgment that appellants' challenge fails.
I write separately because this Court has never provided a sound basis for the one-person, one-vote principle. For 50 years, the Court has struggled to define what right that principle protects. Many of our precedents suggest that it protects the right of eligible voters to cast votes that receive equal weight. Despite that frequent explanation, our precedents often conclude that the Equal Protection Clause is satisfied when all individuals within a district — voters or not — have an equal share of representation. The majority today concedes that our cases have not produced a clear answer on this point. See ante, at 1131.
In my view, the majority has failed to provide a sound basis for the one-person, one-vote principle because no such basis exists. The Constitution does not prescribe any one basis for apportionment within States. It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government. The majority should recognize the futility of choosing only one of these options. The Constitution leaves the choice to the people alone — not to this Court.
In the 1960's, this Court decided that the Equal Protection Clause requires States to draw legislative districts based on a "one-person, one-vote" rule.
This Court changed course in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), by locating in the Equal Protection Clause a right of citizens not to have a "`debasement of their votes.'" Id., at 194, and n. 15, 200, 82 S.Ct. 691. Expanding on that decision, this Court later held that "the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis." Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The Court created an analogous requirement for congressional redistricting rooted in Article I, § 2's requirement that "Representatives be chosen `by the People of the several States.'" Wesberry v. Sanders, 376 U.S. 1, 7-9, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). The rules established by these cases have come to be known as "one person, one vote."
Since Baker empowered the federal courts to resolve redistricting disputes, this Court has struggled to explain whether the one-person, one-vote principle ensures equality among eligible voters or instead protects some broader right of every citizen to equal representation. The Court's lack of clarity on this point, in turn, has left unclear whether States must equalize the number of eligible voters across districts or only total population.
In a number of cases, this Court has said that States must protect the right of eligible voters to have their votes receive equal weight. On this view, there is only one way for States to comply with the one-person, one-vote principle: they must draw districts that contain a substantially equal number of eligible voters per district.
The Court's seminal decision in Baker exemplifies this view. Decided in 1962, Baker involved the failure of the Tennessee Legislature to reapportion its districts for 60 years. 369 U.S., at 191, 82 S.Ct. 691. Since Tennessee's last apportionment, the State's population had grown by about 1.5 million residents, from about 2 to more than 3.5 million. And the number of voters in each district had changed significantly over time, producing widely varying voting populations in each district. Id., at 192, 82 S.Ct. 691. Under these facts, the Court held that reapportionment claims were justiciable because the plaintiffs — who all claimed to be eligible voters — had alleged a "debasement of their votes." Id.,
The Court similarly emphasized equal treatment of eligible voters in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). That case involved a challenge to Georgia's "county unit" system of voting. Id., at 370, 83 S.Ct. 801. This system, used by the State's Democratic Party to nominate candidates in its primary, gave each county two votes for every representative that the county had in the lower House of its General Assembly. Voting was then done by county, with the winner in each county taking all of that county's votes. The Democratic Party nominee was the candidate who had won the most county-unit votes, not the person who had won the most individual votes. Id., at 370-371, 83 S.Ct. 801. The effect of this system was to give heavier weight to rural ballots than to urban ones. The Court held that the system violated the one-person, one-vote principle. Id., at 379-381, and n. 12, 83 S.Ct. 801. In so holding, the Court emphasized that the right at issue belongs to "all qualified voters" and is the right to have one's vote "counted once" and protected against dilution. Id., at 380, 83 S.Ct. 801.
In applying the one-person, one-vote principle to state legislative districts, the Court has also emphasized vote dilution, which also supports the notion that the one-person, one-vote principle ensures equality among eligible voters. It did so most notably in Reynolds. In that case, Alabama had failed to reapportion its state legislature for decades, resulting in population-variance ratios of up to about 41 to 1 in the State Senate and up to about 16 to 1 in the House. 377 U.S., at 545, 84 S.Ct. 1362. In explaining why Alabama's failure to reapportion violated the Equal Protection Clause, this Court stated that "an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State." Id., at 568, 84 S.Ct. 1362.
This Court's post-Reynolds decisions likewise define the one-person, one-vote principle in terms of eligible voters, and thus imply that States should be allocating districts with eligible voters in mind. The Court suggested as much in Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970). That case involved Missouri's system permitting separate school districts to establish a joint junior college district. Six trustees were to oversee the joint district, and they were apportioned on the basis of the relative numbers of school-aged children in each subsidiary district. Id., at 51, 90 S.Ct. 791. The Court held that this plan violated the Equal Protection Clause because "the trustees of this junior college district [must] be apportioned in a manner that does not deprive any voter of his right to have his own vote given as much weight, as far as is practicable, as that of any other voter in the junior college district." Id., at 52, 90 S.Ct. 791. In so holding, the Court emphasized that Reynolds had "called attention to prior cases indicating that a qualified voter has a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted." Hadley, 397 U.S., at 52, 90 S.Ct. 791; see id., at 52-53, 90 S.Ct. 791.
In contrast to this oft-stated aspiration of giving equal treatment to eligible voters, the Court has also expressed a different understanding of the one-person, one-vote principle. In several cases, the Court has suggested that one-person, one-vote protects the interests of all individuals in a district, whether they are eligible voters or not. In Reynolds, for example, the Court
In line with this view, the Court has generally focused on total population, not the total number of voters, when determining a State's compliance with the one-person, one-vote requirement. In Gaffney v. Cummings, 412 U.S. 735, 750-751, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), for example, the Court upheld state legislative districts that had a maximum deviation of 7.83% when measured on a total-population basis. In contrast, in Chapman v. Meier, 420 U.S. 1, 21-22, 26-27, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975), the Court struck down a court-ordered reapportionment that had a total deviation of 20.14% based on total population. This plan, in the Court's view, failed to "achieve the goal of population equality with little more than de minimis variation." Id., at 27, 95 S.Ct. 751.
This lack of clarity in our redistricting cases has left States with little guidance about how their political institutions must be structured. Although this Court has required that state legislative districts "be apportioned on a population basis," Reynolds, supra, at 568, 84 S.Ct. 1362, it has yet to tell the States whether they are limited in choosing "the relevant population that [they] must equally distribute." Chen v. Houston, 532 U.S. 1046, 1047, 121 S.Ct. 2020, 149 L.Ed.2d 1017 (2001) (THOMAS, J., dissenting from denial of certiorari) (internal quotation marks omitted). Because the Court has not provided a firm account of what States must do when districting, States are left to guess how much flexibility (if any) they have to use different methods of apportionment.
This inconsistency (if not opacity) is not merely a consequence of the Court's equivocal statements on one person, one vote. The problem is more fundamental. There is simply no way to make a principled choice between interpreting one person, one vote as protecting eligible voters or as protecting total inhabitants within a State. That is because, though those theories are noble, the Constitution does not make either of them the exclusive means of apportionment for state and local representatives. In guaranteeing to the States a "Republican Form of Government," Art. IV, § 4, the Constitution did not resolve whether the ultimate basis of representation is the right of citizens to cast an equal ballot or the right of all inhabitants to have equal representation. The Constitution instead reserves these matters to the people. The majority's attempt today to divine a single "`theory of the Constitution'" — apportionment based on representation, ante, at 1128-1129 (quoting Cong. Globe, 39th Cong., 1st Sess., 2766-2767 (1866)) — rests on a flawed reading of history and wrongly picks one side of a debate that the Framers did not resolve in the Constitution.
The Constitution lacks a single, comprehensive theory of representation. The Framers understood the tension between majority rule and protecting fundamental rights from majorities. This understanding led to a "mixed" constitutional structure that did not embrace any single theory of representation but instead struck a compromise between those who sought an equitable system of representation and
Because, in the view of the Framers, ultimate political power derives from citizens who were "created equal," The Declaration of Independence ¶ 2, beliefs in equality of representation — and by extension, majority rule — influenced the constitutional structure. In the years between the Revolution and the framing, the Framers experimented with different ways of securing the political system against improper influence. Of all the "electoral safeguards for the representational system," the most critical was "equality of representation." G. Wood, The Creation of the American Republic 1776-1787, p. 170 (1998) (Wood).
The Framers' preference for apportionment by representation (and majority rule) was driven partially by the belief that all citizens were inherently equal. In a system where citizens were equal, a legislature should have "equal representation" so that "equal interests among the people should have equal interests in [the assembly]." Thoughts on Government, in 4 Works of John Adams 195 (C. Adams ed. 1851). The British Parliament fell short of this goal. In addition to having hereditary nobility, more than half of the members of the democratic House of Commons were elected from sparsely populated districts — so-called "rotten boroughs." Wood 171; Baker, 369 U.S., at 302-303, 82 S.Ct. 691 (Frankfurter, J., dissenting).
The Framers' preference for majority rule also was a reaction to the shortcomings of the Articles of Confederation. Under the Articles, each State could cast one vote regardless of population and Congress could act only with the assent of nine States. Articles of Confederation, Art. IX, cl. 6; id., Art. X; id., Art. XI. This system proved undesirable because a few small States had the ability to paralyze the National Legislature. See The Federalist No. 22, at 140-141 (Hamilton).
Consequently, when the topic of dividing representation came up at the Constitutional Convention, some Framers advocated proportional representation throughout the National Legislature. 1 Records of the Federal Convention of 1787, pp. 471-473 (M. Farrand ed. 1911). Alexander Hamilton voiced concerns about the unfairness of allowing a minority to rule over a majority. In explaining at the Convention why he opposed giving States an equal vote in the National Legislature, Hamilton asked rhetorically, "If ... three states contain a majority of the inhabitants of America, ought they to be governed by a minority?" Id., at 473; see also The Federalist No. 22, at 141 (Hamilton) (objecting to supermajoritarian voting requirements because they allow an entrenched minority to "controul the opinion of a majority respecting the best mode of conducting [the public business]"). James Madison, too, opined that the general Government needed a direct mandate from the people. If federal "power [were] not immediately derived from the people, in proportion to their numbers," according to Madison, the Federal Government would be as weak as Congress under the Articles of Confederation. 1 Records of the Federal Convention of 1787, at 472.
The Framers also understood that unchecked majorities could lead to tyranny of the majority. As a result, many viewed antidemocratic checks as indispensable to republican government. And included among the antidemocratic checks were legislatures that deviated from perfect equality of representation.
The Framers believed that a proper government promoted the common good. They conceived this good as objective and not inherently coextensive with majoritarian preferences. See, e.g., The Federalist No. 1, at 4 (Hamilton) (defining the common good or "public good" as the "true interests" of the community); id., No. 10, at 57 (Madison) ("the permanent and aggregate interests of the community"). For government to promote the common good, it had to do more than simply obey the will of the majority. See, e.g., ibid. (discussing majoritarian factions). Government must also protect fundamental rights. See The Declaration of Independence ¶ 2; 1 W. Blackstone, Commentaries *124 ("[T]he principal aim of society is to protect individuals in the enjoyment of those absolute rights, which are vested in them by the immutable laws of nature").
Of particular concern for the Framers was the majority of people violating the property rights of the minority. Madison observed that "the most common and durable source of factions, has been the various and unequal distribution of property." The Federalist No. 10, at 59. A poignant example occurred in Massachusetts. In what became known as Shays' Rebellion, armed debtors attempted to block legal actions by creditors to recover debts. Although that rebellion was ultimately put down, debtors sought relief from state legislatures "under the auspices of Constitutional forms." Letter from James Madison to Thomas Jefferson (Apr. 23, 1787), in 11 The Papers of Thomas Jefferson 307 (J. Boyd ed. 1955); see Wood 412-413. With no structural political checks on democratic lawmaking, creditors found their rights jeopardized by state laws relieving debtors of their obligation to pay and authorizing forms of payment that devalued the contracts. McConnell, Contract Rights and Property Rights: A Case Study in the Relationship Between Individual Liberties and Constitutional Structures, 76 Cal. L. Rev. 267, 280-281 (1988); see also Fletcher v. Peck, 6 Cranch 87, 137-138, 3 S.Ct. 162 (1810) (Marshall, C.J.) (explaining that the Contract Clause came from the Framers' desire to "shield themselves and their property from the effects of those sudden and strong passions to which men are exposed").
Because of the Framers' concerns about placing unchecked power in political majorities, the Constitution's majoritarian provisions were only part of a complex republican structure. The Framers also placed several antidemocratic provisions in the Constitution. The original Constitution
These countermajoritarian measures reflect the Framers' aspirations of promoting competing goals. Rejecting a hereditary class system, they thought political power resided with the people. At the same time, they sought to check majority rule to promote the common good and mitigate threats to fundamental rights.
As the Framers understood, designing a government to fulfill the conflicting tasks of respecting the fundamental equality of persons while promoting the common good requires making incommensurable tradeoffs. For this reason, they did not attempt to restrict the States to one form of government.
Instead, the Constitution broadly required that the States maintain a "Republican Form of Government." Art. IV, § 4. But the Framers otherwise left it to States to make tradeoffs and reconcile the competing goals.
Republican governments promote the common good by placing power in the hands of the people, while curtailing the majority's ability to invade the minority's fundamental rights. The Framers recognized that there is no universal formula for accomplishing these goals. At the framing, many state legislatures were bicameral, often reflecting multiple theories of representation. Only "[s]ix of the original thirteen states based representation in both houses of their state legislatures on population." Hayden, The False Promise of One Person, One Vote, 102 Mich. L. Rev. 213, 218 (2003). In most States, it was common to base representation, at least in part, on the State's political subdivisions, even if those subdivisions varied heavily in their populations. Wood 171; Baker, 369 U.S., at 307-308, 82 S.Ct. 691 (Frankfurter, J., dissenting).
Reflecting this history, the Constitution continued to afford States significant leeway in structuring their "Republican" governments. At the framing, "republican" referred to "[p]lacing the government in the people," and a "republick" was a "state in which the power is lodged in more than one." S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Federalist No. 39, at 251 (Madison) ("[W]e may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour"). By requiring the States to have republican governments, the Constitution prohibited them from having monarchies and aristocracies. See id., No. 43, at 291. Some would argue that the Constitution also prohibited States from adopting direct democracies. Compare Wood 222-226 ("For most constitution-makers in 1776, republicanism was not equated with democracy") with A. Amar, America's Constitution: A Biography 276-281 (2005) (arguing that the provision prohibited monarchies and aristocracies but not direct democracy); see also The Federalist No. 10, at 62 (Madison) (distinguishing a "democracy" and a "republic"); id., No. 14, at 83-84 (same).
None of the Reconstruction Amendments changed the original understanding of republican government. Those Amendments brought blacks within the existing American political community. The Fourteenth Amendment pressured States to adopt universal male suffrage by reducing a noncomplying State's representation in Congress. Amdt. 14, § 2. And the Fifteenth Amendment prohibited restricting the right of suffrage based on race. Amdt. 15, § 1. That is as far as those Amendments went. As Justice Harlan explained in Reynolds, neither Amendment provides a theory of how much "weight" a vote must receive, nor do they require a State to apportion both Houses of their legislature solely on a population basis. See 377 U.S., at 595-608, 84 S.Ct. 1362 (dissenting opinion). And Justice ALITO quite convincingly demonstrates why the majority errs by reading a theory of equal representation into the apportionment provision in § 2 of the Fourteenth Amendment. See post, at 1146-1149 (opinion concurring in judgment).
The Court's attempt to impose its political theory upon the States has produced a morass of problems. These problems are antithetical to the values that the Framers embraced in the Constitution. These problems confirm that the Court has been wrong to entangle itself with the political process.
First, in embracing one person, one vote, the Court has arrogated to the Judiciary important value judgments that the Constitution reserves to the people. In Reynolds, for example, the Court proclaimed that "[l]egislators represent people, not trees or acres"; that "[l]egislators are elected by voters, not farms or cities or economic interests"; and that, accordingly, electoral districts must have roughly equal population. 377 U.S., at 562-563, 84 S.Ct. 1362. As I have explained, the Constitution permits, but does not impose, this view. Beyond that, Reynolds' assertions are driven by the belief that there is a single, correct answer to the question of how much voting strength an individual citizen should have. These assertions overlook that, to control factions that would legislate against the common good, individual voting strength must sometimes yield to countermajoritarian checks. And this principle has no less force within States than it has for the federal system. See The Federalist No. 10, at 63-65 (Madison) (recognizing that smaller republics, such as the individual States, are more prone to capture by special interests). Instead of large States versus small States, those interests may pit urban areas versus rural, manufacturing versus agriculture, or those with property versus those without. Cf. Reynolds, supra, at 622-623, 84 S.Ct. 1362 (Harlan, J., dissenting). There is no single method of reconciling these competing interests. And it is not the role of this Court to calibrate democracy in the vain search for an optimum solution.
The Government argues that apportioning legislators by any metric other than total population "risks rendering residents of this country who are ineligible, unwilling, or unable to vote as invisible or irrelevant to our system of representative democracy."
Second, the Court's efforts to monitor the political process have failed to provide any consistent guidance for the States. Even if it were justifiable for this Court to enforce some principle of majority rule, it has been unable to do so in a principled manner. Our precedents do not address the myriad other ways that minorities (or fleeting majorities) entrench themselves in the political system. States can place policy choices in their constitutions or have supermajoritarian voting rules in a legislative assembly. See, e.g., N.Y. Const., Art. V, § 7 (constitutionalizing public employee pensions); Ill. Const., Art. VII, § 6(g) (requiring a three-fifths vote of the General Assembly to preempt certain local ordinances). In theory, of course, it does not seem to make a difference if a state legislature is unresponsive to the majority of residents because the state assembly requires a 60% vote to pass a bill or because 40% of the population elects 51% of the representatives.
So far as the Constitution is concerned, there is no single "correct" way to design a republican government. Any republic will have to reconcile giving power to the people with diminishing the influence of special interests. The wisdom of the Framers was that they recognized this dilemma and left it to the people to resolve. In trying to impose its own theory of democracy, the Court is hopelessly adrift amid political theory and interest-group politics with no guiding legal principles.
This case illustrates the confusion that our cases have wrought. The parties and the Government offer three positions on what this Court's one-person, one-vote cases require States to equalize. Under appellants' view, the Fourteenth Amendment protects the right to an equal vote. Brief for Appellants 26. Appellees, in contrast, argue that the Fourteenth Amendment protects against invidious discrimination; in their view, no such discrimination occurs when States have a rational basis for the population base that they select, even if that base leaves eligible voters malapportioned. Brief for Appellees 16-17. And, the Solicitor General suggests that reapportionment by total population is the only permissible standard because Reynolds recognized a right of "equal representation for equal numbers of people." Brief for United States as Amicus Curiae 17.
Although the majority does not choose among these theories, it necessarily denies that the Equal Protection Clause protects the right to cast an equally weighted ballot. To prevail, appellants do not have to deny the importance of equal representation. Because States can equalize both total population and total voting power within the districts, they have to show only that the right to cast an equally weighted vote is part of the one-person, one-vote right that we have recognized. But the majority declines to find such a right in the Equal Protection Clause. Ante, at 1132-1133. Rather, the majority acknowledges that "[f]or every sentence appellants
I agree with the majority's ultimate disposition of this case. As far as the original understanding of the Constitution is concerned, a State has wide latitude in selecting its population base for apportionment. See Part II-B, supra. It can use total population, eligible voters, or any other nondiscriminatory voter base. Ibid. And States with a bicameral legislature can have some mixture of these theories, such as one population base for its lower house and another for its upper chamber. Ibid.
Our precedents do not compel a contrary conclusion. Appellants are correct that this Court's precedents have primarily based its one-person, one-vote jurisprudence on the theory that eligible voters have a right against vote dilution. E.g., Hadley, 397 U.S., at 52-53, 90 S.Ct. 791; Reynolds, 377 U.S., at 568, 84 S.Ct. 1362. But this Court's jurisprudence has vacillated too much for me to conclude that the Court's precedents preclude States from allocating districts based on total population instead. See Burns, 384 U.S., at 92, 86 S.Ct. 1286 (recognizing that States may choose other nondiscriminatory population bases). Under these circumstances, the choice is best left for the people of the States to decide for themselves how they should apportion their legislature.
There is no single "correct" method of apportioning state legislatures. And the Constitution did not make this Court "a centralized politburo appointed for life to dictate to the provinces the `correct' theories of democratic representation, [or] the `best' electoral systems for securing truly `representative' government." Holder v. Hall, 512 U.S. 874, 913, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994) (THOMAS, J., concurring in judgment). Because the majority continues that misguided search, I concur only in the judgment.
Justice ALITO, with whom Justice THOMAS joins except as to Part III-B, concurring in the judgment.
The question that the Court must decide in this case is whether Texas violated the "one-person, one-vote" principle established in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), by adopting a legislative redistricting plan that provides for districts that are roughly equal in total population. Appellants contend that Texas was required to create districts that are equal in the number of eligible voters, but I agree with the Court that Texas' use of total population did not violate the one-person, one-vote rule.
Both practical considerations and precedent support the conclusion that the use of total population is consistent with the one-person, one-vote rule. The decennial census required by the Constitution tallies total population. Art. I, § 2, cl. 3; Amdt. 14, § 2. These statistics are more reliable and less subject to manipulation and dispute than statistics concerning eligible voters. Since Reynolds, States have almost uniformly used total population in attempting to create legislative districts that are equal in size. And with one notable exception, Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), this Court's post-Reynolds cases have likewise
Although this conclusion is sufficient to decide the case before us, Texas asks us to go further and to hold that States, while generally free to use total population statistics, are not barred from using eligible voter statistics. Texas points to Burns, in which this Court held that Hawaii did not violate the one-person, one-vote principle by adopting a plan that sought to equalize the number of registered voters in each district.
Disagreeing with Texas, the Solicitor General dismisses Burns as an anomaly and argues that the use of total population is constitutionally required. The Solicitor General contends that the one-person, one-vote rule means that all persons, whether or not they are eligible to vote, are entitled to equal representation in the legislature. Accordingly, he argues, legislative districts must be equal in total population even if that results in districts that are grossly unequal in the number of eligible voters, a situation that is most likely to arise where aliens are disproportionately concentrated in some parts of a State.
This argument, like that advanced by appellants, implicates very difficult theoretical and empirical questions about the nature of representation. For centuries, political theorists have debated the proper role of representatives,
The Court does not purport to decide whether a State may base a districting plan on something other than total population, but the Court, picking up a key component of the Solicitor General's argument, suggests that the use of total population is supported by the Constitution's formula for allocating seats in the House of Representatives among the States. Because House seats are allocated based on total population, the Solicitor General argues, the one-person, one-vote principle requires districts that are equal in total population. I write separately primarily because I cannot endorse this meretricious argument.
First, the allocation of congressional representation sheds little light on the question presented by the Solicitor General's argument because that allocation plainly violates one person, one vote.
Second, Reynolds v. Sims squarely rejected the argument that the Constitution's allocation of congressional representation establishes the test for the constitutionality of a state legislative districting plan. Under one Alabama districting plan before the Court in that case, seats in the State Senate were allocated by county, much as seats in the United States Senate are allocated by State. (At that time, the upper houses
Third, as the Reynolds Court recognized, reliance on the Constitution's allocation of congressional representation is profoundly ahistorical. When the formula for allocating House seats was first devised in 1787 and reconsidered at the time of the adoption of the Fourteenth Amendment in 1868, the overwhelming concern was far removed from any abstract theory about the nature of representation. Instead, the dominant consideration was the distribution of political power among the States.
The original Constitution's allocation of House seats involved what the Reynolds Court rather delicately termed "compromise and concession." 377 U.S., at 574, 84 S.Ct. 1362. Seats were apportioned among the States "according to their respective Numbers," and these "Numbers" were "determined by adding to the whole Number of free Persons ... three fifths of all other Persons." Art. I, § 2, cl. 3. The phrase "all other Persons" was a euphemism for slaves. Delegates to the Constitutional Convention from the slave States insisted on this infamous clause as a condition of their support for the Constitution, and the clause gave the slave States more power in the House and in the electoral college than they would have enjoyed if only free persons had been counted.
The Court's account of the original Constitution's allocation also plucks out of context Alexander Hamilton's statement on apportionment. The Court characterizes Hamilton's words (more precisely, Robert Yates's summary of his fellow New Yorker's
As is clear from the passage just quoted, Hamilton (according to Yates) thought the fight over apportionment was about naked power, not some lofty ideal about the nature of representation. That interpretation is confirmed by James Madison's summary of the same statement by Hamilton: "The truth is it [meaning the debate over apportionment] is a contest for power, not for liberty.... The State of Delaware having 40,000 souls will lose power, if she has 1/10 only of the votes allowed to Pa. having 400,000." Id., at 466. Far from "[e]ndorsing apportionment based on total population," ante, at 1127, Hamilton was merely acknowledging the obvious: that apportionment in the new National Government would be the outcome of a contest over raw political power, not abstract political theory.
After the Civil War, when the Fourteenth Amendment was being drafted, the question of the apportionment formula arose again. Thaddeus Stevens, a leader of the so-called radical Republicans, unsuccessfully proposed that apportionment be based on eligible voters, rather than total population. The opinion of the Court suggests that the rejection of Stevens' proposal signified the adoption of the theory that representatives are properly understood to represent all of the residents of their districts, whether or not they are eligible to vote. Ante, at 1127-1129. As was the case in 1787, however, it was power politics, not democratic theory, that carried the day.
In making his proposal, Stevens candidly explained that the proposal's primary aim was to perpetuate the dominance of the Republican Party and the Northern States. Cong. Globe, 39th Cong., 1st Sess., 74 (1865); Van Alstyne, The Fourteenth Amendment, The "Right" to Vote, and the Understanding of the Thirty-Ninth Congress, 1965 S. Ct. Rev. 33, 45-47 (Van Alstyne). As Stevens spelled out, if House seats were based on total population, the power of the former slave States would be magnified. Prior to the Civil War, a slave had counted for only three-fifths of a person for purposes of the apportionment of House seats. As a result of the Emancipation Proclamation and the Thirteenth Amendment, the former slaves would now be fully counted even if they were not permitted to vote. By Stevens' calculation, this would give the South 13 additional votes in both the House and the electoral college. Cong. Globe, 39th
Stevens' proposal met with opposition in the Joint Committee on Reconstruction, including from, as the majority notes, James Blaine. Ante, at 1128. Yet, as it does with Hamilton's, the majority plucks Blaine's words out of context:
The "not fully appreciated" and "incidental evi[l]" was, in Blaine's view, the disruption to loyal States' representation in Congress. Blaine described how the varying suffrage requirements in loyal States could lead to, for instance, California's being entitled to eight seats in the House and Vermont's being entitled only to three, despite their having similar populations. Ibid.; see also 2 B. Ackerman, We the People: Transformations 164, 455, n. 5 (1998); Van Alstyne 47, 70. This mattered to Blaine because both States were loyal and so neither deserved to suffer a loss of relative political power. Blaine therefore proposed to apportion representatives by the "whole number of persons except those to whom civil or political rights or privileges are denied or abridged by the constitution or laws of any State on account of race or color." Cong. Globe, 39th Cong., 1st Sess., 142.
As should be obvious from these lengthy passages, Blaine recognized that the "generally approved" "result aimed at" was to deprive southern States of political power; far from quibbling with that aim, he sought to achieve it while limiting the collateral damage to the loyal northern States. See Van Alstyne 47.
Even Jacob Howard, he of the "theory of the Constitution" language, ante, at 1128-1129, bemoaned the fact that basing representation on total population would allow southern States "to obtain an advantage which they did not possess before the rebellion and emancipation." Cong. Globe, 39th Cong., 1st Sess., 2766. "I object to this. I think they cannot very consistently call upon us to grant them an additional number of Representatives simply because in consequence of their own misconduct they have lost the property [meaning slaves, whom slaveholders considered to be property] which they once possessed, and which served as a basis in great part of their representation." Ibid. The list could go on. The bottom line is that in the leadup to the Fourteenth Amendment, claims about representational equality were invoked, if at all, only in service of the real goal: preventing southern States from acquiring too much power in the National Government.
After much debate, Congress eventually settled on the compromise that now appears in § 2 of the Fourteenth Amendment. Under that provision, House seats are apportioned based on total population, but if a State wrongfully denies the right to vote to a certain percentage of its population, its representation is supposed to be reduced proportionally.
In light of the history of Article I, § 2, of the original Constitution and § 2 of the Fourteenth Amendment, it is clear that the apportionment of seats in the House of Representatives was based in substantial part on the distribution of political power among the States and not merely on some theory regarding the proper nature of representation. It is impossible to draw any clear constitutional command from this complex history.
For these reasons, I would hold only that Texas permissibly used total population in drawing the challenged legislative districts. I therefore concur in the judgment of the Court.
Needless to say, the reference in this provision to "male inhabitants ... being twenty-one years of age" has been superseded by the Nineteenth and Twenty-sixth Amendments. But notably the reduction in representation is pegged to the proportion of (then) eligible voters denied suffrage. Section 2's representation-reduction provision makes no appearance in the Court's structural analysis.
