MeiJade Hsu, SCOTUS Expert

Russell
Direct Examination Subjects
1. Let us now welcome Herman Schwartz, professor at the American University Washington College
of Law. Professor Schwartz, would you please state your credentials for us?
a. I graduated magna cum laude from Harvard University and have a Juris Doctor degree
from Harvard Law School, magna cum laude. Although I have spent most of my
professional career as a professor of law, I have worked extensively in government,
having served as Chief Counsel of the Senate Antitrust Subcommittee and Chief Counsel
for Revenue Sharing at the U.S. Treasury Department. I have authored numerous
scholarly papers, reports, articles, and books, including two books on the Supreme Court.
I am also frequently called upon to analyze and write about Supreme Court decisions
(Herman Schwartz).
2. What has been the trend in Supreme Court cases regarding redistricting these past 50 years?
a. Major cases such as Baker v. Carr, Reynolds v. Sims, and Wesberry v. Sanders have
consistently dictated that each federal, state, and local district must have approximately
the same population.
3. Would you please explain the precedent established in the 1962 case Baker v. Carr?
a. The key element of the decision was that state reapportionment claims are justiciable in
federal court. Relevant to our case, the Supreme Court ordered state legislative districts to
be as near equal in population as possible, in accordance with the Equal Protection
Clause (Baker v. Carr). Baker was also the first case to establish the one-person, onevote principle that the appellants are challenging (Epps).
4. So how does the one-person, one-vote principle established in Baker apply to Evenwel?
a. The appellants claim that their right to equal protection is being violated by the State of
Texass total-population-based apportionment system. However, the system is perfectly
valid and constitutional. As admitted by Professor Farrell, non-voters count as persons. It
is the duty of elected representatives of the people whether at the national, state, or
local level to be a voice for ALL of their constituents, voters and non-voters alike.
This is what one-person, one-vote is about. If the system to function as the appellants
desire, drawing districts based on the population of registered or eligible voters, it would
be one VOTER, one vote. This is about we the people not we the voters.
b. Because Baker requires that state legislative districts be as near equal in population as
possible, apportioning districts based on the population of registered or eligible voters
would create districts that varied dramatically in population, which is a blatant violation
of the Equal Protection Clause as interpreted by Baker.
5. Thank you. You mentioned Reynolds v. Sims. Would you please explain the precedent established
in that 1964 case?
a. In an 8-1 decision, the Supreme Court ruled that, in order to satisfy the Equal Protection
Clause, seats in both houses of a bicameral state legislature must represent districts as
equal in population as practicably possible. To quote Chief Justice Earl Warrens majority
opinion, The Equal Protection Clause demands no less than substantially equal state
legislative representation for all citizens, of all places as well as of all races. Justice
Warren continues by writing that the right to direct representation is a bedrock of our
political system (Reynolds v. Sims).

6. How does the Reynolds decision that districts should be equal in population apply to Evenwel?
a. The appellants find fault with the way in which the State of Texas apportions State Senate
districts. Since the State Senate is one of two houses in the bicameral state legislature, the
decision in Reynolds applies here, meaning that the State of Texass system of
apportioning districts based on the total population is valid and constitutional, since it
attempts to make districts as equal in population as possible.
7. You mentioned another case, Wesberry v. Sanders. Would you please explain the precedent
established in that?
a. The Supreme Court ruled that congressional and state legislative districts must be as
equal in population as possible (Coenen). It basically reinforced the one-person, one-vote
principle established in Baker v. Carr and Reynolds v. Sims.
8. How do Baker v. Carr, Reynolds v. Sims, and Wesberry v. Sanders affect how districts are drawn
and show the trend towards equal population you mentioned?
a. These three cases have established that states must draw congressional, state legislative,
and local districts that are as equal in population as possible. And Id like to note that this
trend isnt something new thats only come up in the past 50 years. Total population has
always been the way in which states have apportioned their districts. It was the way they
did it before African Americans and women won the right to vote, which meant that for
the 80 years before African-American men won the right to vote and the 130 years before
women won the right to vote, both demographic groups were considered in the
apportioning of districts. Therefore, Baker, Reynolds, and Wesberry only served to
reinforce this 230-year-old practice of apportioning districts based on total population.

Potential Cross Examination Subjects

Population deviations
o The percentage used when stating population deviations is called the overall range. The
overall range is the difference in population between the largest and smallest districts,
commonly expressed as a percentage (2010 Redistricting Deviation Table).
o For Texas State Senate districts, the average deviation is 8.04% (2010 Redistricting
Deviation Table).
o If Texas State Senate districts to be apportioned based on the population of registered or
eligible voters, as the appellants desire, the deviation would be anywhere from 31-49%
3-5 times that of the 10% maximum accepted by the Supreme Court in the 1983 case
Brown v. Thomson (Von Spakovsky and Slattery).
Burns v. Richardson (1966)
o SCOTUS held that using the total population is not mandated if it would result in a
substantially distorted reflection of the distribution of state citizenry. Hawaii was
therefore allowed to apportion districts based on the population of registered voters, as
many people counted in the Census, such as members of the military stationed there,
were not actually Hawaii voters (Von Spakovsky and Slattery). States have a choice of
basis, as long as its plan remains close to overall population numbers (Epps).
o While absolute equality of population is not required, SCOTUS ruled in Brown v.
Thomson that a state legislative apportionment plan with a population deviation that
exceeds 10 percent creates a prima facie case of discrimination (Brown v. Thomson).
o Therefore, Burns doesnt really apply to this case, because the situation in Texas is very
different than that in Hawaii. Texas doesnt have a large population of military and other
transients like Hawaii does. Were Texas State Senate districts to be apportioned based on
the voting population, as the appellants desire, the population deviation between the
districts could be anywhere from 31-49% 3-5 times that of the 10% maximum
accepted by SCOTUS in the 1983 case Brown v. Thomson (Von Spakovsky and Slattery).
And because SCOTUS ruled in Brown v. Thomson that a state legislative apportionment
plan with a deviation that exceeds 10 percent is discriminatory, this apportionment
scheme would be unconstitutional.
Gaffney v. Cummings (1973)
o SCOTUS ruled that minor population deviations among state legislative districts dont
make out a prima facie case of discrimination under the Equal Protection Clause. In this
case, Connective House districts deviated on average by 1.9% and at most by 7.83%,
which didnt constitute as discriminatory under the 10% maximum established by Brown
v. Thomson (Gaffney v. Cummings). Also, a political fairness principle that achieves
a rough approximation of statewide political strengths of the two major parties doesnt
violate the Equal Protection Clause.
SCOTUS didnt actually define what political fairness means. Does it mean
fairness as in registered or eligible voters hold precedence over minors
including U.S. citizens and other non-voters, or fairness as in everybody
regardless of voting eligibility holds equal precedence?

The part about population deviations ties back to the argument I made with Burns v.
Richardson. If the State of Texas apportioned State Senate districts based on the
population of registered or eligible voters, as the appellants desire, the population
deviations once again, 3-5 times that of the 10% maximum established by SCOTUS in
Brown v. Thomson would be major enough to make out a prima facie case of
discrimination under the Equal Protection Clause.
Their rebuttal: political boundaries and political fairness could justify
deviations from perfect population equality (Gaffney v. Cummings (1973)).
Response: right, but these deviations cant be excessive. According to a
table of redistricting deviations compiled by the National Conference of
State Legislatures, which includes congressional, State House, and State
Senate districts, the vast majority of State Senate districts dont have a
deviation greater than 10%. There are of course exceptions like Hawaii,
but the fact remains that these deviations are few and far between, and
may have a special reason for exceeding 10%.
Response: SCOTUS doesnt define what political fairness means.
Does it mean fairness as in registered or eligible voters hold precedence
over minors including U.S. citizens and other non-voters, or
fairness as in everybody regardless of voting eligibility holds equal
precedence?