A back and forth occurred about whether women should have been included for purposes of redistricting between 1868 and 1920:
JUSTICE GINSBURG: Is it your view that what the Fourteenth Amendment means is that in all the years between -- what was it? -- 1868 and 1920, it was wrong for the States to include, for these purposes, women? They were not eligible voters.
MR. CONSOVOY: Any -- there is no question that was a problem. It was an it was an issue in the '60s with minorities as well who were -- who were disenfranchised. The the Court in Reynolds at the time was doing more than one thing at once.
JUSTICE GINSBURG: But you're saying that that was wrong. I mean, in your interpretation of the Fourteenth Amendment from 1869 till 1920, the State should not have been counting women for -- for purposes of determining representation in the State legislature.
MR. CONSOVOY: For purposes of the of the Equal Protection Clause, the one-person, one-vote rule protects voters. If disenfranchisement of women or minorities is an issue, those cases could have been brought. Eventually, that issue was resolved by this country, as was minority representation.
Justice Kagan raised some thoughts on the nature of the Fourteenth Amendment:
JUSTICE KAGAN: Mr. Consovoy, could I go back to the question that Justice Breyer raised and can stripped, if he'll permit me, of the Guarantee Clause, because the Fourteenth Amendment is actually quite you know, the framers of the Fourteenth Amendment explicitly considered this issue, and, you know, made a decision.
So Senator Howard, who introduces the Amendment on behalf of the joint committee that drafts it, talks about these deliberations. And he says the committee adopted numbers as the most just and satisfactory basis, and that's the principle upon which the Constitution itself was originally framed, referring back to the original drafting. And then he says numbers, not voters; numbers, not property; this is the theory of the Constitution.
Now, this is the theory of the Constitution as to one thing, which is not the thing that you are talking about. This is the theory of the Constitution as to House apportionment.
But, again, I'll go back to this question. This is just a clear, explicit choice that was made about what it meant to -- to have equal representation with respect to that area. And how you go from that being mandated to it being prohibited in the State context is something that I still can't quite work myself around.
MR. CONSOVOY: Justice Harland agreed with you. He did.
JUSTICE KAGAN: That's a good person to be on the side of.
Late in appellant's argument, Justice Breyer and Sotomayor also floated about whether to include or exclude children in the population for redistricting purposes, too.
Chief Justice Robert opened early with a remark about "one person, one vote": "Well, it is --0 it is called the one-person, one-vote. That seems to be designed to protect voters."
Justice Alito opened with a potential dichotomy that attracted much discussion.
JUSTICE ALITO: There are at least two arguments that could support your position. One is that it's one-person, one-vote, and what counts is giving each person an equal chance of affecting the outcome of the election. But total population figures are a good enough proxy for eligible voters. That's one possible argument.
And that's -- that's what the census measures, and that's close enough.
Another argument is that representational equality is the real basis, and therefore that's why you use population.
It seems to me that the two interests are not always consistent. They can be in great conflict.
You can have a situation if you -- if you want to equalize population, you may have a situation where you cause great inequality in the -- the chances of any -- of voters affecting the outcome of the election. On the other hand, if you choose eligible voters only, then you may have a situation where every person within two districts does not have an equal representation defined in some way in the legislature.
I don't think you can just say, well, it's -- you know, we serve both. What do you do when they come into conflict?
Justice Breyer worried about theirs of virtual representation:
[MR. KELLER:] The issue is does State -- does a State have to have the same amount of constituents per representative? And a State can do so. It's a legitimate--
JUSTICE BREYER: 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.
Justice Sotomayor appeared interested in whether the census data used for the Voting Rights Act would be appropriate to use for an equal voting analysis. There was specific mention of the Persily brief and a disagreement with the United States on the view of Section 2 of the Voting Rights Act (tr. 37-39).
Justice Alito led a line of inquiry about who has standing--a question reserved by the Court in Baker v. Carr.
There is little that I can glean from the argument, except a lot of curiosity about the right standards and what they might look like. Perhaps of note? Justice Scalia did not ask a single question the entire argument.
This post has been updated.