The Court’s decision in Evenwel could not have been clearer, and indeed it was unanimous, that the Constitution does not command the exclusion of nonvoters from the base used for state and local legislative redistricting.  It was a full defeat of the appellants.  But the Court did not address the question—even tip its hand—on the question of whether states might have discretion to choose between total and eligible voting populations.  Rick Pildes correctly writes that the “six-member majority went out of its way to make clear that the question remains fully open whether states might be required to use population, rather than eligible voters.”

The key parts of this judgment are “went out of its way” and “the question remains fully open.”  In fact, the Court was rigorously noncommittal on the issue of state discretion.

In footnote 6 of its opinion, the Court notes that two appellate courts have “suggested that the choice of apportionment base may present a nonjusticiable political question.” The Court cites to the Fifth Circuit in Chen v. Houston and the Fourth in Daly v. Hunt; then leaves it at that, without further comment.  On this same point, the Court also does even not mention, much less take the occasion to put in doubt, dicta in Burns v. Richardson that “the decision to include or exclude any… group [in the apportionment base] involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.”  384 U.S. 73, 92 (1966).

Of course, there are always reasons for the Court to dispose only of today’s case and not to anticipate, if just a little, the next. There may be even more reason now on an eight-member Court working to avoid deadlock.  Or it could be that the Court is signaling that the question is difficult or close.  Given the nature of the principle at issue in this case—representational equality—the Court’s strict neutrality on this question of state discretion is sobering.

(Note: I and the firm with which I am associated filed an amicus brief for the Democratic National Committee that argued for total population as the constitutionally compelled method.)