When Earl Warren was asked to name the most important decision of his tenure as the U.S. Supreme Court’s chief justice, he didn’t go with the obvious—1954’s Brown v. Board of Education. Rather he chose the “one man, one vote” case, Reynolds v. Sims, decided in 1964. Today’s Supreme Court justices could be about to gut that decision, and the effort to drag Nevada kicking and screaming into the 20th century (not a typo) may suffer for it.
In its next term, the Roberts Court will hear Evenwel v. Abbott, a Texas redistricting case rooted in the question of how representation should be decided. When states set up legislative districts, they do so according to total population as determined by the U.S. Census. For this case, the plaintiffs want the standard for redistricting to be based on eligible voters.
Legal scholar Richard L. Hasen recently pointed out in Slate the “irony” that this and similar cases “are being brought by conservatives, who usually claim to respect precedents and states’ rights.” That abuses the term “conservative” almost as much as today’s Republicans do, but it’s also a strange commentary on “originalism”—the idiotic notion that when the framers wrote the Constitution, they settled its meaning for all time. In case you forgot, when the Constitution was written, women and property-less men weren’t voting, and its authors decided that a slave, who obviously couldn’t vote, counted for three-fifths of a person for determining representation and the Electoral College.
Let’s set aside that Evenwel v. Abbott is part of an ongoing effort to destroy voters’ rights and instead consider Nevada’s situation. In 1915, nearly half a century before the “one man, one vote” decision, Nevada employed the “little federal plan.” The Assembly’s membership was based roughly on population, while the state Senate included one senator for each county—in the 1960s, that meant one from Clark County (population: 127,016) and one from Storey County (population: 568).
How well did this work? In terms of policy, terribly. The state Senate easily blocked everything from funding for higher education to civil rights legislation. But rural lawmakers also gamed the system. Consider the 1960 census, which led to the last redistricting in Nevada before Reynolds v. Sims: Out of Nevada’s 285,278 residents, a little more than 40 percent lived in Clark County, and about 30 percent in Washoe County. After Reynolds v. Sims passed, the Senate expanded to 20 members, and Clark County had eight of them, with Washoe and the surrounding area getting five.
But the Assembly hadn’t really done its job, either. Before Reynolds v. Sims, Clark and Washoe counties had fewer Assembly members than their populations justified—they comprised slightly more than half the chamber, despite combining for about two-thirds of the state’s populace. After federally mandated redistricting, those numbers improved to more closely reflect the population.
Today, Clark County has about 70 percent of the legislative membership, befitting its percentage of Nevada’s population. That doesn’t mean our legislators always do everything we want, but that’s for us to decide as voters. And those percentages have been the goal for many years.
If that changes, which political party would benefit? It takes four of nine U.S. Supreme Court justices to agree to hear a case, and they tend not to do so unless they think they might have a fifth vote to swing the result their way. Further, Republicans are behind Evenwel v. Abbott, and that party has been trying to reduce voting rights for several years, whether through gutting the Voting Rights Act of 1965 (as the Roberts Court has sought to do in Shelby County v. Holder) or reducing early voting days and times (as Nevada lawmakers talked about doing).
It’s easy enough to show how this would benefit rural voters and hurt urban and minority voters who are less frequently eligible to vote. But this also abuses history. In the 1760s and 1770s, the English Parliament argued that the colonists were wrong to complain about “taxation without representation” because they had “virtual representation”: As members of the British Empire, they received consideration from Parliament whether or not they had a vote. Opponents of African-American and women’s suffrage made similar arguments.
So, Republicans who support originalism could get their way, and we could turn the clock back to more agreeably racist and sexist times. But be careful what you wish for: Republicans live in cities, not ghost towns—yet.
Michael Green is an associate professor of history at UNLV.