“There can be no truer principle than this—that every individual of the community at large has an equal right to the protection of government.” --Alexander Hamilton, 1 Records of the Federal Convention of 1787, p. 473 (M. Farrand ed. 1911)
“Numbers, not voters; numbers, not property; this is the theory of the Constitution.” --Sen. Jacob Howard (R-MI), Cong. Globe, 39th Cong., 1st Sess., 2766–2767 (1866)
A few years ago, the same wealthy conservative activist who ginned up a challenge to the University of Texas’s steps to ensure diversity in its college admissions also launched a salvo against one of the Constitution’s most bedrock principles, that of “one person, one vote.” The complaint was that since Texas apportioned its state legislative map based on all people, and not based on which people were eligible to vote, voters in districts with fewer non-citizens and minors resident therein had the power of their votes diluted. (Background here.) Citing the Equal Protection Clause, they insisted that the only way to ensure equality was to not count every person equally. Why? As Prof. Rick Hasen explained:
It is hard to see it as anything but a Republican power grab. As I explained at Slate, a ruling that states may not draw legislative district lines taking total population into account will benefit rural voters over urban voters, and that by extension will benefit Republicans over Democrats. Urban areas are much more likely to be filled with people who cannot vote: non-citizens (especially Latinos), released felons whose voting rights have not been restored, and children. With districts redrawn using only voters as the denominator, there will be more Republican districts.
Monday, a unanimous Supreme Court rejected this Republican power grab. Writing for six of the justices (including the chief justice and Justice Kennedy), Justice Ginsburg reviewed the debates from the drafting of the Constitution as well as the Fourteenth Amendment, concluding that States are perfectly within their rights to consider all people in doing the math to draw districts:
As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.
The court leaves for another day the question of whether states can choose to deviate from One Person, One Vote in state legislative apportionment, and Justices Alito and Thomas concurred separately to suggest that they’d be open to it, should that case arise someday.
(This case did not concern federal reapportionment, which is governed by the clear language of the Fourteenth Amendment: “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”)
Also, Justice Thomas—proving yet again he’s his own brand of jurisprudential crazy—concurred separately to explain that he’s still not sure why One Person, One Vote should be required, and that states should be free to do whatever they want. For real.
