Just two years after the Supreme Court’s conservative majority gutted a key provision of the Voting Rights Act, a case argued this month presents them with the opportunity to fundamentally transform one of the most important principles of our democracy: one person, one vote. Evenwel v. Abbott could alter redistricting in a way that would dramatically shift political representation away from urban, non-white, and young Americans to the benefit of white, rural, older, and conservative voters. It would be nothing short of a catastrophe for minority and Democratic representation in many states.
After the landmark 1964 Supreme Court ruling Reynolds v. Sims, which established “one person, one vote” as the law of the land, legislative and congressional districts have almost always been drawn based upon the total number of residents regardless of citizenship, voter registration, or voting-age eligibility. The Evenwel plaintiffs in Texas contend that this discriminates against actual voters since districts have unequal numbers of registered voters and total votes cast even when they have equal populations.
The plaintiffs instead want to enable the widespread use of other factors such as only counting eligible voters when drawing districts. As this interactive feature of nationwide maps demonstrates, current districts have large disparities in the number of eligible voters. In Texas, where a large proportion of minority residents cannot vote because they are non-citizen immigrants or children, this change would allow considerably more districts to be drawn that would elect conservative, white Republicans. Every single redistricting plan across the country might have to change, allowing Republicans to further extend their gerrymandered current grip on Congress and state legislatures.
“One person, one vote” rests upon the 14th Amendment’s Equal Protection Clause, which itself is the basis upon which the plaintiffs are making their case. However, apportionment of congressional seats among the states is established in the Constitution on the basis of total population, and it would make little sense for the court to find one method appropriate for reapportionment that would be inappropriate for redistricting.
One huge problem with redistricting based only on eligible voters is figuring out who is eligible to begin with. The Census tries its best to literally count every single person in the country every ten years, but they do not ask about citizenship. Instead, the best data we have on that is from the American Community Survey. The ACS is a statistical sampling of the population that, while very valuable, is still not as precise or accurate as the hard Census numbers themselves.
Justice Anthony Kennedy asked in oral arguments why redistricting plans couldn’t just satisfy both metrics and have both an equal number of eligible voters as well as total population. That might be technically possible, but it would violate nearly all traditional redistricting principles because oddly shaped districts would have to be drawn to combine disparate populations with little in common. In Texas, that would mean combining low-turnout Latino populations with high-turnout white populations that would elect white representatives.
Predicting ruling outcomes based only on oral arguments can be treacherous, but as usual, Justice Kennedy will likely be the key swing vote in what is likely to be a five to four decision. Election law expert Rick Hasen is optimistic that the plaintiffs will fail, but given this court’s history of attacks on voting rights and fair elections, it is very possible that they will go along with a case that is nothing more than a nakedly partisan power grab. If applied to Congress, a negative ruling would give Republicans a near-certain lock on the chamber in anything other than a 2008-sized Democratic wave. Legislative elections in many states would also become an even bigger farce.
Ultimately, legislators don’t simply represent voters, but all of the people in their districts. Our government doesn’t care whether or not one votes when deciding who receives services or who owes taxes, and those people have representation all the same. It is important that our political system empowers and represents everyone, even if they don’t or can’t vote.