Vote counting at the U.S. Supreme Court

Vote counting at the U.S. Supreme Court

- in Law and the Courts


The U.S. Supreme Court will hear argument Tuesday morning in two of the four redistricting cases it has already accepted for review, with several more percolating in places like North Carolina, making this potentially a blockbuster term for challenges to voting maps across the country.

One of those cases, Evenwel v. Abbott, has alarmed many election law experts as it challenges the long-settled constitutional principal of “one person one vote.” That concept has been the underpinning of several high court opinions addressing states’ voting maps, ensuring that voting lines are drawn in a way that avoids vote dilution.

The challenge out of Texas comes at a time when demographics have shifted and pockets of minority and immigrant residents have grown, and raises the question of how population should be tabulated for purposes of drawing voting lines.

Should all residents count, or just eligible voters?

It also comes at a time when the status of North Carolina’s voting lines remains unsettled.

Four years have passed since state GOP leaders adopted a new redistricting plan and voting rights advocates first challenged it in court. That case has since been up and down the courts, new challenges have been filed in federal court and two statewide elections have occurred, and a final resolution still looks to be years away and likely at the hands of the U.S. Supreme Court.

The state case filed in 2011, Dickson v. Rucho, concerns both congressional and state legislative districts drawn as part of the new redistricting plan – a plan that both the trial court and the state Supreme Court have upheld.

But last term the U.S. Supreme Court sent Dickson back to state Supreme Court for further review in light of the high court’s decision in a similar Alabama case.

Applying a different analysis than that used by our state justices, the high court rejected Alabama’s voting plan, holding that lawmakers could not use mechanical quotas of minority voters when drawing election lines – something North Carolina leaders did when they mandated that the challenged districts be drawn to have at least a 50 percent black voting age population.

Instead, the U.S. Supreme Court ruled that lawmakers had to look at each district and determine whether adjustments were even necessary to ensure that minority voters had a chance to elect their candidates of choice. (For more on the relationship between the Alabama and the North Carolina cases read here.)

The state Supreme Court held argument in Dickson for a second time in August, and a decision remains pending. Any decision there though will not settle the challenges to the state’s maps, as another appeal to the U.S. Supreme Court is likely.

Also, the separate challenges to the state’s map now pending in federal court raise the possibility of different conclusions on the map’s constitutionality by the judges there and create additional routes to the nation’s highest court.

In Harris v. McCrory, filed in federal court in Greensboro in October 2013, new challengers (separate from those in state court) argue that congressional districts 1 and 12 are unconstitutional racial gerrymanders. The parties tried the case before Judges William L. Osteen Jr., Max O. Cogburn, Jr. and Circuit Court Judge Roger Gregory this past October, with a decision pending.

In Covington v. North Carolina Board of Elections, filed in May following the U.S. Supreme Court decision in the Alabama case, the challengers are contesting several of the state legislative districts also at issue in Dickson.

Last week the three judges hearing that case, Fourth Circuit Judge James A. Wynn, Jr. and federal district court judges Thomas Schroeder and Catherine Eagles, denied both a request by the challengers to stay the March primary elections pending a full decision and a request by the state to stay all proceedings in the case while the state Supreme Court resolved the Dickson case.

That means the March primary will proceed as scheduled, but the court will tackle the merits of the challenge at a trial in April 2016.


While state and federal judges parse the North Carolina plan, the justices of the U.S. Supreme Court are tackling different redistricting challenges.

The high court already heard argument on November 4 in Shapiro v. McManus, a case that raises the question of who decides whether a redistricting challenge should go to a three-judge panel in the first instance. In that case, a federal district court judge decided that the challenge there lacked sufficient merit to go to such a panel.

On Tuesday the court will also hear argument in Harris v. Arizona Independent Redistricting Commission, a reprise of a case decided last year concerning Arizona’s independent redistricting commission.

Last term the court ruled that voters could constitutionally delegate the task of drawing congressional districts to an independent commission.

This time the justices will consider whether the drawing of state legislative districts for partisan advantage violates “one person one vote” concepts.

As Lyle Deniston at SCOTUSblog explains, the high court will address two questions: whether a desire for partisan advantage justified the packing plan that distorted voters’ influence between districts, in violation of “one person, one vote” principles, and whether a desire to get Justice Department endorsement justified the creation of unequally sized districts in violation of those same principles.

And in a case out of Virginia that has yet to be scheduled for argument, Wittman v. Personhuballahthe justices will consider whether a congressional district there is a racial gerrymander. Although granting review, the high court left open the possibility of dismissing the case on procedural grounds, asking for briefing on the question of whether plaintiffs had standing to bring the case in the first instance since none of them resided in or represented the subject district.

For the moment though, the case most concerning to election law experts is Evenwel v. Abbott.

Who should states count when tabulating populations for redistricting purposes?