Evenwel involved a constitutional challenge to the Texas legislature’s 2013 redistricting plan, which drew 31 state senate districts on substantially equal population based on the 2010 census. In 2014, Sue Evenwel filed this lawsuit, claiming that the redistricting plan violated the Equal Protection Clause of the Fourteenth Amendment because the districts did not contain a substantially equal number of voters. A three-judge district court—which was convened because Evenwel challenged the constitutionality of a state legislature’s redistricting plan—dismissed the case, noting that Evenwel is “relying upon a theory never before accepted by the Supreme Court or any circuit court.” Evenwel filed a statement of jurisdiction with the Supreme Court, and on May 26, 2015, the Court noted probable jurisdiction.

On September 25, 2015, Constitutional Accountability Center filed a friend-of-the-court brief in support of the lower court’s ruling, explaining that Evenwel’s radical claim—that it is the population of eligible voters that must be equalized under the Fourteenth Amendment—cannot be squared with the Constitution’s text and history. Both at the Founding and after the Civil War, our Constitution’s Framers decreed that representation in the House of Representatives would be based on the total population, not the number of eligible voters or other less-encompassing metrics. CAC’s brief took a comprehensive look at the text and history of the Fourteenth Amendment and demonstrated that the Amendment affirmed the Constitution’s promise of equal representation for all. The argument that voter equality must be the overriding constitutional concern was rejected again and again, with the Framers of the Fourteenth Amendment declaring that “the whole population is represented; that although all do not vote, yet all are heard. That is the idea of the Constitution.” As our brief demonstrated, Evenwel’s argument is inconsistent with the total population standard reflected in the Constitution’s text and history and with the Supreme Court’s landmark one-person, one-vote cases, which have required states to draw districts on the basis of population and have consistently used total population as the benchmark for evaluating challenges to state redistricting.

The Supreme Court heard oral argument on December 8, 2015. On April 4, 2016, the Court held – by an 8-0 vote – that a state may draw its legislative districts based on total population. Drawing heavily on constitutional history discussed in our brief, as well as Court precedent and practice, Justice Ginsburg’s opinion for the Court, joined by five other Justices, held that use of a total-population baseline serves the principle of representational equality. Indeed, although the Court didn’t reach the question of whether states may draw districts based on voter-eligible population, the Court’s opinion made clear that total population – as the Framers of the Fourteenth Amendment recognized – is “the theory of the Constitution” when it comes to representation.