Texas Cases Factor in New U.S. Supreme Court Term

The U.S. Supreme Court is back in session, and its upcoming term will feature at least two cases that have percolated up from Texas — on voting rights and affirmative action — and possibly a third if the justices end up hearing arguments over House Bill 2, the state's 2013 abortion law.

Here are the cases:

Who counts under one person, one vote?

More than 50 years ago, the Supreme Court ruled in Reynolds v. Sims that legislative districts must be roughly equal in population — establishing a principle better known as “one person, one vote.” The ruling came at a time when the populations of some legislative districts were severely imbalanced, with rural — and mostly white — areas exercising outsize influence compared to densely populated — and minority-heavy — urban areas. When some votes counted more than others, “based on where voters happened to reside,” that was discrimination, Chief Justice Earl Warren wrote. 

This term, the court will take up a case asking who exactly should be counted when drawing "equal" electoral districts. 

Two Texas voters — Sue Evenwel and Edward Pfenninger — claim the value of their votes is diluted because the state draws legislative districts by total population, instead of limiting its count to the number of eligible voters in each district.

That means in a district with a large share of people not eligible to vote — immigrants, non-citizens and prisoners, for example — each individual vote carries proportionally more weight. 

Evenwel, who lives in Titus County, and Pfenninger, who lives in Montgomery County, want the lines to be drawn based on the number of eligible voters in the population.

Lawyers for the state say Texas has fulfilled its obligation to draw equalized districts, and call the plaintiffs’ proposal “unworkable.” Evenwel and Pfenninger, who describe themselves as regular voters, say there are other voters in the state whose ballots are worth approximately one and a half times that of their own.

Late last year, a three-judge panel appointed by the U.S. 5th Circuit Court of Appeals dismissed Evenwel and Pfenninger's case, saying Texas lawmakers are allowed to draw districts based on total population, and changing the method is a political, not legal, question.

UT-Austin's race-conscious admissions policy back in play

It’s back again. Abigail Fisher, rejected from the University of Texas at Austin seven years ago, claims that she was discriminated against because she’s white. Her case has reached the Supreme Court for the second time in four years.

Fisher originally sued the university in 2008, after she was denied admission. Fisher, whose grades put her outside the top 10 percent of her high school class needed for automatic admission, claimed that applicants with lowers grades and fewer extracurricular activities were admitted instead of her simply because they were minorities.

The case made its way to the 5th Circuit, which ruled in UT’s favor; Judge Patrick Higginbotham wrote the university had acted in “good faith” in its attempts to further classroom diversity. From there, Fisher appealed to the Supreme Court, where several justices questioned closely what the university defined as a “critical mass” of minority students — in other words, how the university would determine that consideration of race would no longer be necessary. A few months later, the Supreme Court ruled in a surprise decision that the 5th Circuit had failed to subject UT’s admissions policy to strict scrutiny — and sent the case back.

Last summer, the 5th Circuit once again ruled in the university’s favor. Fisher’s legal team vowed to keep appealing to the Supreme Court, and it worked. Since the lawsuit began, Fisher has enrolled in and graduated from Louisiana State University.

In June, UT-Austin President Gregory Fenves reiterated his belief that the university’s race-conscious admissions policy is fully constitutional.  

"Under the Supreme Court's existing precedent, the university's commitment to using race as one factor in an individualized, holistic admissions policy allows us to assemble a student body that brings with it the educational benefits of diversity for all students," Fenves said. "We look forward to making our arguments before the Supreme Court later this year."

Are HB 2's abortion restrictions constitutional?

A case the Supreme Court might hear involves a challenge to Texas’ restrictive abortion law, House Bill 2. Since the bill passed in 2013, roughly half the state’s abortion clinics have closed — and wait times at the remaining clinics have increased, according to a new report.

Under HB 2, abortion clinics must meet a series of stringent qualifications, including ensuring their doctors have admitting privileges at hospitals within 30 miles of the clinics. Another section of the law, requiring that clinics adhere to hospital-like standards of ambulatory surgical centers, is on hold while the Supreme Court considers taking the case.

If the ambulatory surgical center requirements go into effect, some Texas women would need to travel more than 150 miles for the procedure — imposing an undue burden, according to the law’s opponents. The Texas Attorney General’s office says the restrictions were passed with women’s health in mind.

The 5th Circuit has upheld the admitting privilege and ambulatory surgical center provisions of the law, but the Supreme Court placed the surgical center ruling on hold while it decides whether to take the case. If the Supreme Court declines, the 5th Circuit’s ruling will go into effect, most likely prompting further clinic closures.