The New Federal Analogy: Evenwel v. Abbott and the History Congressional Apportionment
For purposes of congressional apportionment . . . Section 2 of the Fourteenth Amendment requires the use of total number of persons, not voters. It seems quite odd to require counting all people for purposes of dividing up representation among the states but not for drawing districts within each state.
This reaction was typical of the commentary that followed the Supreme Court noting probable jurisdiction in the case of Evenwel v. Abbott, a lawsuit to prevent Texas from drawing its legislative districts with equal total populations as opposed to equal voter populations. How could the same amendment forbid at the state level (via the Equal Protection Clause) what it requires at the federal level? Without an adequate answer to that question, the plaintiff’s case in Evenwel would be on thin theoretical ice.
Yet the question may also sound familiar. It was the same one asked fifty years ago, when the case of Reynolds v. Sims challenged Alabama’s allocation of one state senator per county, regardless of population. How could the same Constitution that allocates two senators to every state, regardless of population, forbid a state from implementing a similar system with its own counties? That was the argument the Supreme Court heard, and it is an argument the Court rejected.
This Article will examine the history of federal apportionment, to determine its applicability to the state level. Ultimately, it will reach the conclusion that the new federal analogy, like the old one, should be rejected. Part I will lay out the Constitutional rules of apportionment and Supreme Court decisions that have brought us to this point. It will also trace the history of the federal analogy that has been so persuasive in the prior cases tackling the same problem as Evenwel, but that has not yet been thoroughly examined. Part II will examine the debates over the rule of apportionment at the Constitutional Convention, demonstrating that the rule of total population was created not as a theory of representation, but as a solution to the uniquely federal problem of each state being allowed to define suffrage for itself. Part III will examine the debates at the drafting of the Fourteenth Amendment, demonstrating that the rule of total population was retained to provide virtual representation for women. This Part will also shed light on the now nearly-forgotten second sentence of Section 2 of that amendment (the “Penalty Clause”), which is crucial evidence of the skepticism the drafters had for the concept of virtual representation. Part IV will apply the lessons of the historical record to arguments that have been supplied in favor of allowing Texas to use the total population rule. This Part will demonstrate that, though the census does not currently count eligible voters, it is in fact likely already required to by the Penalty Clause of Section 2 of the Fourteenth Amendment.
