Supreme Court Update: Evenwel v. Abbott (14-940), Nichols v. United States (15-5238) and Woods v. Etherton (15-723)

April 13, 2016 Supreme Court Update

Greetings, Court Fans!

The Eight found a whole lot to agree on in their last batch of decisions, unanimously holding state voting districts drawn to equalize the total population in each district (and not the number of eligible voters) do not violate the Constitution, that a sex offender need not notify his previous state of residence of his departure if he moves out of the country, and (least surprising) that the Sixth Circuit failed to defer to a state court in a habeas case.

First up, in Evenwel v. Abbott (No. 14-940), the Court grappled with the meaning of one-person, one-vote—the principle first articulated in Reynolds v. Sims (1964), and later held to apply to both congressional and state legislative voting districts. All states currently apportion districts using total population, although a handful make some adjustments (principally involving out-of-state residents in the state for incarceration or military service). The plaintiffs sought to challenge this paradigm when Texas adopted new state Senate districts, equalized by total population. The lawsuit claimed that the Equal Protection Clause instead requires drawing equal districts by the number of eligible voters (and not total population). Practically speaking, apportionment by the number of eligible voters is thought to favor the Republican Party by diminishing the voting power of urban areas that tend to support Democratic candidates and have larger numbers of non-eligible voters (including children, non-citizens, and ex-felons). For this reason, some observers feared a 4-4 split with the justices appointed by Democrats on one side and those appointed by Republicans on the other.

Turns out, there was little cause for concern. The Court unanimously rejected the plaintiffs' argument, with Justice Ginsburg writing for all Justices other than Thomas and Alito. Justice Ginsburg surveyed historical sources from when both the Constitution and the Fourteenth Amendment were adopted, finding in them support for drawing districts based on total population, including non-eligible voters like women and children. She rejected the plaintiffs' historical view that total population was intended only for apportioning federal House seats among the states and not for dividing voting districts within a state, and she corrected the plaintiffs' misreading of the Courts' precedents as protecting only the voting power of each eligible voter. Justice Ginsburg summed up the Court's view succinctly: "Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries. Appellants have shown no reason for the Court to disturb this longstanding use of total population."

The Court therefore accepted the State of Texas's defense of its voting map. However, the State had gone further and asked the Court to rule that the State could, if it chose to, adopt the plaintiffs' voter-eligible apportionment scheme even though the Equal Protection Clause did not require it to do so. The State asked for deference to any rational choice that is not invidiously discriminatory. At the same time, the United States had weighed in to argue that the Equal Protection Clause requires apportionment by total population in a district. The Court declined both invitations, for now. Having rejected the argument that the Equal Protection Clause mandates apportionment by eligible voters, the Court "[did] not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population."

Justice Alito wrote separately, concurring in the judgment only. He agreed that both "practical considerations and precedent" support the use of total population in drawing voting districts. But he wrote that the nature of representation poses difficult questions, best answered when the Court is faced with an actual scheme different from today's norm. Alito also examined historical sources and found them more ambiguous than did Justice Ginsburg's opinion as to whether the Constitution allows for apportionment to protect the interests of voters rather than the total population. In short, he appeared to be more sympathetic than Ginsburg to the argument that a state could apportion its legislative districts by number of eligible voters, but he agreed with the majority that that question should be left for another day.

While Justice Thomas joined almost all of Justice Alito's opinion, he also filed a separate concurrence of his own, voicing his rigorously reasoned, but apparently idiosyncratic opinion that the one-person, one-vote principle itself has no constitutional mooring. In Thomas's view, the states have considerable leeway in apportioning districts, using any principle "consistent with a republican form of government." He concluded that the choice of how to apportion legislative districts should be left to the people of each state and not to the courts.

Finding unanimity in a politically charged apportionment case is no small feat. But perhaps even more remarkable, at least on the surface, was the Court's unanimous decision in Nichols v. United States (15-5238), in which the Court vacated a sex offender's conviction under the Sex Offender Registration and Notification Act (SORNA). Scratch below the surface, however, and you'll see that this was just another in a growing line of criminal statutory-construction cases where both the liberals and some conservatives have found common cause. Interestingly, the typical conservative hold-out in these cases, Justice Alito, took the pen here, perhaps because the case is unlikely to have considerable impact given subsequent Congressional enactments.

SORNA makes it a federal crime for certain sex offenders to "knowingly fai[l] to register or update a registration," and requires offenders who move to a different state to notify "at least 1 jurisdiction involved" of their move. Nichols was a registered sex offender who moved from Kansas to the Philippines without updating his registration. He was arrested and returned to the United States, where he was convicted of violating SORNA. On appeal he argued that he was not required to update his registration when he moved from Kansas because he didn't move to another state. The Tenth Circuit affirmed his conviction, concluding that Kansas remained a "jurisdiction involved." This created a particularly problematic circuit split, as the Eighth Circuit came to the opposite conclusion in 2014, in another case involving a sex offender moving from Kansas City (on the Missouri/Eighth Circuit side) to the Philippines.

The Supreme Court resolved the split by looking at the plain meaning of the statute. SORNA required Nichols to "appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of" his change of residence. Subsection (a) in turn only mentions three possible jurisdictions: "where the offender resides, where the offender is an employee, and where the offender is a student." Neither the Philippines nor any other foreign country is a "jurisdiction" under SORNA. And, because the statutes uses the present tense to describe the applicable jurisdictions ("resides," "is an employee," "is a student") Nichols was not required to report to Kansas, either. As Justice Alito noted, "A person who moves from Leavenworth to Manila no longer ‘resides' (present tense) in Kansas; although he once resided in Kansas, after his move he ‘resides' in the Philippines." Justice Alito pointed out that Congress could very easily have required sex offenders to notify the jurisdiction they were leaving of their move; that in fact is what Kansas state law requires. But Congress chose not to adopt a similar requirement in SORNA, and Nichols is therefore not guilty of violating SORNA. Justice Alito was quick to note, however, that the Court's holding would not allow sex offenders to escape punishment for leaving the U.S. without notifying their former jurisdictions, because Congress recently criminalized the "knowin[g] fail[ure] to provide information required by [SORNA] relating to intended travel in foreign commerce." All parties agreed that the new statute would cover Nichols's conduct.

While it may be uncommon for the Supreme Court to unanimously reverse a SORNA conviction, summarily reversing the Sixth Circuit in habeas cases is old hat. Woods v. Etherton (15-723) is just the latest in a long line of per curiam orders castigating the Sixth Circuit (and also, in fairness, the Ninth) for misapplying the extremely deferential standard of the Antiterrorism and Effective Death Penalty Act, which permits federal habeas relief only if a state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." As the Court has frequently reiterated, a state court's decision must be "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Here, the state habeas court rejected the petitioner's claims of ineffective assistance of trial and appellate counsel because there were strategic reasons why his lawyers may have chosen not to challenge the admissibility of an anonymous tip at trial or on appeal. In rejecting the state habeas court's reasoning, the Sixth Circuit "did not apply the appropriate standard of review under AEDPA." Accordingly, the Court granted the writ and summarily reversed the Sixth Circuit's decision.

That'll do it for now. The Court is back in session Monday for its April sitting and we'll be back not long thereafter.