U.S. Supreme Court Weighs Children in Representation Fight

By Mark Walsh — December 08, 2015 4 min read
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The U.S. Supreme Court heard arguments Tuesday in a case about the meaning of “one person, one vote,” which will likely have consequences for elected school boards and how well children are represented by state lawmakers.

“This is an issue that is going to affect states and local jurisdictions throughout the country,” Deputy U.S. Solicitor General Ian H. Gershengorn told the justices during the arguments in Evenwel v. Abbott (Case No. 14-940).

The court is weighing a challenge brought by Texas voters to the state Senate redistricting map after the 2010 Census that drew district lines based roughly equally on total population, including non-voters and even non-citizens.

The challengers say the state Senate districts “grossly malaportion” the citizen voting-age population, with the result being that there are voters or potential voters in some districts whose votes are worth as much as one-and-a-half times those in other districts.

This, the challengers say, violates the “one-person, one-vote” principle established by the high court in the landmark 1964 case of Reynolds v. Sims.

That decision applies not just to state legislatures, but to any local school board with so-called single-member districts, where the population (total or voting-age) is apportioned among different districts. (The U.S. Constitution makes clear that members of the U.S. House of Representatives shall be apportioned among districts based on “the whole number of persons.”)

A Junior College District Precedent

The challengers to the Texas Senate map cite a 1970 Supreme Court decision—Hadley v. Junior College District of Metropolitan Kansas City—that struck down the voting system for a junior college district in Kansas City, Mo.

A Missouri law allowed K-12 school districts to band together to form such a junior college district serving all of them. The law provided that trustees of the junior college district be apportioned among the separate K-12 districts on the basis of “school enumeration,” meaning the number of school-aged residents of the district (defined as those between 6 and 20 years old).

Voters in the Kansas City K-12 district sued. Their district accounted for 60 percent of the school-aged children in the overall junior college jurisdiction, but Kansas City voters could elect only half of the six trustees. So their votes for the larger junior college district were diluted compared with the votes coming from the five smaller K-12 districts, the challengers argued.

In its 1970 decision in Hadley, the Supreme Court sided with the challengers, holding that the Missouri law “results in a systematic discrimination against voters in the more populous school districts.”

The state of Texas, which is defending the state Senate plan and argues that states may choose any method they want to apportion districts, argues that the Hadley decision does not help the challengers because the Supreme Court made no effort to ensure that the voting districts of the junior college agency had roughly equal number of voters. (School enumeration could still be used, just on a more equal basis.)

Meanwhile, in a friend-of-the-court brief on the state’s side, New York City points out that using voter population to apportion districts would exclude children from the equation.

“The communities in which [children] live must receive adequate representation to address their unique needs,” the brief says. “This is particularly true at the local level, where critical education policy decisions are made.”

Children First

Representation of children came up throughout the Dec. 8 arguments.

Gershengorn, the deputy U.S. solicitor general, pointed out that the proportion of children in Texas counties ranges from 9 percent in some to 35 percent in others.

“In Alaska, the difference between rural and urban [counties] is 20 percent in some and 37 percent in another,” he said.

William S. Consovoy, the Arlington, Va., lawyer representing the Texas challengers to the state Senate map, resisted the idea that children and their interests would not be represented by a system that relied on citizen voting-age population rather than total population.

“Children are represented at the polls,” he said. “They are represented at the polls by their parents.”

Justice Sonia Sotomayor pressed him. “How about children who are citizens when their parents are not, which is fairly common in many areas?”

“When they become eligible voters, they will become part of this base” of the voter population, Consovoy said.

Justice Stephen G. Breyer pressed Scott A. Keller, the solicitor general of Texas, on his view that the states could choose voter population even though Texas has chosen total population for its legislative districts.

Breyer suggested there was a tradeoff between children and certain other populations not being fully represented, or settling for districts having some disparities in voter population.

“I believe there’s a difference between diminishing access to representatives and actually having representation,” Keller said. “The United States has said that if Texas or another state reapportioned on the basis of voter population, that non-voters would be invisible to the system. That’s not right. They would still be represented.”

Breyer replied: “That sounds an awful lot what they had in 1750 or something, where the British Parliament said, ‘Well, don’t worry, America, you’re represented by the people in England because after all, they represent everybody in the British Empire.’”

A decision in the case is expected by late June.

A version of this news article first appeared in The School Law Blog.