Over at the George Washington Law Review Docket, I have an analysis of the Supreme Court's opinion in Evenwel v. Abbott. A portion of the analysis:
It did not face the question of whether Texas was permitted to use some other population basis. Indeed, the Court expressly stated that “we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.” But there are some signs that the Court’s logic may extend to what it disclaimed doing.
Perhaps this parsing of the opinion reads too much—it might be that this case does not stand for so bold a proposition. While the Court does not address precedent like Burns, it does not distinguish it or minimize it, either. Lower court opinions that had previously deferred on the question of the appropriate apportionment base were also cited without disapproval. And if we take the Court at its word, it has genuinely reserved the matter of whether states may use a non-population basis for drawing districts for another day.
But it is worth noting that the simple and unanimous decision of the Court may lead to the adoption of a narrower theory of “one person, one vote,” one that leaves less discretion to the states. Whether states (or localities) may exclude incarcerated prisoners, non-citizens, or non-voters, among other theories, when drawing districts may be tested in the very near future—and the Court’s logic in Evenwel will surely be at the center of the disputes.