This case concerns a challenge to Texas's congressional redistricting plan, which is based on total population from census data rather than eligible voter population. The plaintiffs argue this dilutes some voters' influence. The Fifth Circuit dismissed the case, finding no substantial evidence of an equal protection violation. The respondents argue precedent requires using total population and the plan's population deviations are acceptable. The Supreme Court must consider whether to require apportionment based on eligible voter population instead of total population from the census.

1. Royce Morales
PSCI 4210.001
Professor Perkins
11/30/15
Bench Memorandum II

2. TO: Supreme Court Justice Anthony Kennedy
RE: Evenwel v. Abbott (2016)
Statement of Facts: This case presented to the Supreme Court is a question concerning
apportionment schemes within congressional districts of Texas. The plaintiff, Sue Evenwel, is
suing Texas due to the state’s districting based off of previous census data. The question arises
from the Fourteenth Amendment’s Equal Protection Clause, and the plaintiff raises the question
of whether or not redistricting should be considered through census data, which takes into
account children, residents, and others who are not eligible to vote, or whether redistricting
should be based on voter population, that is, the respective population that is eligible and
registered to vote. Taking into account “in statewide and in congressional elections, one person's
vote must be counted equally with those of all other voters in a State” Reynolds v. Sims, 377 U.S.
533, 579; 1964, and also established the ‘one person, one vote’ doctrine. Evenwel also argues
that there is a clear deviation of eight percent within the Senate districts’ voter population, and
claims that this creates a disproportionate voter bloc. Since there is a ten percent threshold that is
required for deviations based on population numbers according to census data, there is no case
under the Equal Protection Clause of the Fourteenth Amendment. However, the Plaintiffs have
confidence in their approach to consider voter population rather than the census data. The
Plaintiffs are claiming that while urban areas have higher populations, using the standard method
of drawing district lines, their votes are more valuable than the votes of sparsely populated
regions. In Davis v. Perry 132 S. Ct. 934; 181 L. Ed. 2d 900; 2012 “the 2010 census showed an
enormous increase in Texas' population, with over four million new residents…[and] required
the State to redraw its electoral districts for the United States Congress”. This massive growth in
Texas’ population saw a large increase in densely populated cities, while the majority of Texas’
land, which is made up of rural properties and dispersed peoples. The respondents, Texas’
governor and attorney general, have answered in their briefs that the petitioners do not have a
well-constructed argument to defend their claim of disproportional voter disparity. The
respondent’s briefs are further enhanced, being based on the premise that the Supreme Court’s
precedent stands as accepted as correct until proven otherwise. Evenwel, the petitioner, on the
grounds of Equal Protection Clause violations, is questioning the redistricting strategy that the
Texas legislature has implemented due to population growth.

3. Summary of Lower Courts: The Fifth Circuit Brief concerning Evenwel v. Abbott is
clear that Sue Evenwel and other plaintiff, Edward Pfenninger, do not present a case with
substantial evidence to file suit based on violations of the Equal Protection Clause of the
Fourteenth Amendment. The Fifth Circuit explains that the plaintiff’s deviation of voter disparity
does not meet the necessary ten percent threshold that is required for a case to be heard, and on
the grounds of Equal Protection Clause violations of the Fourteenth Amendment, the plaintiffs
did not make a substantial argument that gave them grounds to be ruled upon. The Fifth Circuit
Brief also explains that the plaintiff’s proposed strategy is not in line with the Supreme Court’s
previous decisions concerning redistricting and apportionment schemes of state legislatures. The
Fifth Circuit Court motioned to dismiss the plaintiff’s claims based off their lack of a sound
Fourteenth Amendment argument.
Summary of Petitioner’s Major Arguments: The plaintiffs are bringing suit against the
State of Texas in regards to the state’s redistricting plan that is drawn based on census
population. The Petitioners are taking action against the State of Texas since the ‘one person, one
vote’ in their opinion in not being adequately enforced and has created voting disparity between
highly populated and thinly populated districts. Their argument proposes that districts should be
drawn up based on eligible voter population, and not include individuals who ineligible to vote,
such as minors, residents, and other nonvoters. According to the petitioners, including these
parties distorts overall representation of the senatorial districts and devalues certain votes within
affected districts.
Summary of Respondent’s Major Arguments: Greg Abbott and Ken Paxton, the
Respondents, are defending Texas and the state’s reapportionment strategies against the
Plaintiffs. They claim that the Plaintiff’s argument of calumnious voter reduction is not founded
in substantiated argument. They claim that the Supreme Court has already established precedent
that is based on the theory that the Equal Protection Clause of the Fourteenth Amendment makes
no mandatory action on the behalf of a state to create a reapportionment scheme positioned to
represent a specific dimension of voter population. Respondents also explain that by choosing to
use total population taken from the last census data, the state does not means engages in voter
malapportionment. The respondent further posits that if the Supreme Court would decide in favor
of the Petitioners, then it would entangle the Court, and would allow for several other

4. apportionment questions to bog down the institution. The respondents claim that they have taken
every possible step to limit voter disparity and provide adequate measures to prevent dilution.
Constitutional Argument: The aforementioned case is one that should be approached
with serious deliberation. This issue should be deliberately weighed: if the Supreme Court
decides in the plaintiff’s favor, the sheer amount of redistricting that will happen throughout the
country would be overwhelming. This case is involves bipartisan disagreements, and an adequate
remedy should be applied. The plaintiff’s argument is that eligible voter population should be
considered for congressional redistricting, rather than the total population. This will decrease the
number of people being represented, and districts to be even more disproportionate than they are
now. Their argument suggests that because census data does not include citizenship or voter
eligibility of people within districts, that the plaintiff’s votes are worth less due to living in
sparsely populated areas, compared with large urban areas where an exceptionally larger number
of noncitizens reside. The precedence of Reynolds v. Sims 377 U.S. 533; 84 S. Ct. 1362; 1964,
“Population is, of necessity, the starting point for consideration and
controlling [***531] criterion for judgment in legislative apportionment controversies”. This
established the precedence that the total population should be allocated and divided equally
among a number of both bicameral house legislatures. The Census Bureau is responsible for
collected very accurate population growth and it is also important to note that there is the
American Community Survey (ACS) that does collect more in-depth data on the population. The
district court had ruled on Texas’ earlier apportionment strategy, PLANS 148, and it was
considered tenuous. After a newly constructed map approved by the three-panel district court,
the Plaintiffs filed a suit, but their claim is not substantial. Texas’ PLANS172 does meet the less
than ten percent threshold that was established in Reynolds v. Sims, as well as being in
accordance with the Civil Rights Act of 1965.
In Davis v Perry 132 S. Ct. 934; 181 L. Ed. 2d 900; 2012, “The new apportionment
makeup was approved by the district court and allowed to take effect [and that] [c]ourt-drawn
electoral maps are held to a higher standard of acceptable population variation than legislatively
enacted maps” and this ensures that the districts that are now in place do meet the necessary
requirements for adequate voter representation. This precedent is important when considering
Evenwel v Abbott because the Texas apportionment maps have been granted the specific legal
approval from the Washington district court. The argument of the plaintiffsdoo not have any

5. substantial reasoning with regards to the Equal Protection Clause of the Fourteenth Amendment.
The courts approved the relative makeup of these new congressional districts, and addressed the
proper solution that was needed to correct them.
This does meet the necessary requirements for being authorized. The new scheme took
into consideration the previous maps, and did make an adequate effort to supplement them
according to the Equal Protection Clause. “All that would be required is substantial equality of
population among the various districts, so that the vote of any citizen is approximately equal in
weight to that of any other citizen in the state” as in Gaffney v. Cummings 412 U.S. 735; 93 S.
Ct. 2321; 1973. This is the basis for establishing population proportionality amongst house
legislature districts, providing standard egalitarian representation. The ruling provided a
framework and justification for promoting districts that are proportionally equal in terms of head
count. Levels of population deviation for Texas’ districts are within the required range, and the
districts that were in question under the previous plan were remedied. Texas complied with
correcting their apportionment maps, and the new scheme did align with the Supreme Court’s
“decisions [that] have established… an apportionment plan with a maximum population
deviation under 10% falls within this category of minor deviations” as in Brown v Thomson 462
U.S. 835; 103 S. Ct. 2690; 1983. While there is no way to completely craft all drawn districts in
an equally divisible manner, the Brown decision offered an effective process to eliminate
discrimination of representation. The plaintiff’s challenge to Texas’ scheme does not hold
acceptable substance, since their districts exceed do not exceed the ten percent ceiling.
There are limits to what strategies states can apply for drawing districts, and there are
also nonessential design elements that can be used. “The Equal Protection Clause does not
require the states to use total population figures derived from the federal census as the standard
by which this substantial population equivalency is to be measured” as in Burns v. Richardson
384 U.S. 73; 86 S. Ct. 1286; 1966, the Supreme Court has never made it a requirement to take
into account other measurements, such as the one the plaintiffs are arguing for. They are arguing
for their own specific standard, voting population, to be used in the drawing of Texas’ districts,
and that measurement alone. This is something that goes against the established rulings in
several previous cases, and will limit the number of voters in any given district. The decrease in
the number of voters, in which those being excluded consist of minors not yet of age, convicted
felons, disabled people, the elderly, those without photo identification (in states that require it),

6. noncitizens, and the poor. Even though these parts of the population do not engage in the voting
process, they are still individuals who should be taken into account when a representative is
accountable to a specific region.
The perfectly equal population splitting between congressional districts is something that
is nearly impossible to achieve, deviations need to be a requirement. And certain guidelines that
state constitutions have guidelines that are to be followed, which will make deviation even more
common “Thus, if a State wishes to maintain whole counties, it will inevitably have population
variations between [*8] districts reflecting the fact that its districts are composed of unevenly
populated counties” as in Tennant v. Jefferson County Commission 133 S. Ct. 3; 183 L. Ed. 2d
660; 2012. Especially in a state as large as Texas, the level of deviation should be expected to be
higher. Texas has concentrated population density in the eastern region of the state, compared to
the western. This is something that will also affect states that have relatively low populations
such as Montana and states with high ones, such as California. Several seats within state
legislatures as well as congressional ones will have to be absorbed by the bigger districts, in
order to limit deviation to as little as possible.
The plaintiffs Sue Evenwel and Edward Pfenninger as they claim are on the lower end of
Texas’ apportionment scheme, and there is a substantial level of disparity within their districts.
However, if the Supreme Court were to rule in the plaintiff’s favor, there would be a higher
number of disenfranchised voters in the state. That ruling would also give way to the complete
overhaul of current congressional district makeup. The respondent’s case has the backing of
precedent as well as approval by a federal district court under the auspices of the Voting Rights
Act of 1965. The plaintiff’s claim does not meet the grievance requirement under the Equal
Protection Clause of the Fourteenth Amendment that is necessary to challenge a state’s
apportionment scheme. The Supreme Court’s decision on this case needs to provide adequate
representative protection for citizens who would become disenfranchised by ruling in favor of
the plaintiff. The proper course of action as described above requires that the Supreme Court rule
in favor of the respondents while taking into consideration the previous apportionment rulings.
The Texas district maps have been approved through the proper channels of federal authority,
and have been adjusted to account for the official population within the state. The value of
population measurements for districts is a core constitutional principle that must be defended,
and should be an accepted plan for Texas’ apportionment scheme.

7. TABLE OF AUTHORITIES
Page
CASES
Brown v. Thompson,
462 U.S. 835; 103 S. Ct. 2690 (1983)…………………………………………………….4
Burns v. Richardson
384 U.S. 73; 86 S. Ct. 1286 (1966)……………………………………………………….4
Davis v. Perry
132 S. Ct. 934; 181 L. Ed. 2d 900 (2012)………………………………………………1,3
Gaffney v. Cummings
412 U.S. 735; 93 S. Ct. 2321 (1973)……………………………………………………...4
Reynolds v. Sims
377 U.S. 533; 84 S. Ct. 1362 (1964)……………………………………………………1,3
Tennant v. Jefferson County Commission
133 S. Ct. 3; 183 L. Ed. 2d 660 (2012)…………………………………………………...5