We’re heading into the last month of the Supreme Court’s Term,
the time of year when the Justices typically decide the most important and
often closely-divided cases on their docket.
But the big news this week was not a decision in a pending case, it was
the Court’s announcement that it will hear a major voting rights case next Term. Adding Evenwel
v. Abbott to their docket, the Justices agreed to decide whether the
Constitution permits state governments to draw equally-populated districts to
comply with the requirement of one person, one vote using total population
figures, counting citizens and non-citizens alike. Evenwel
presents issues at the intersection of race, redistricting, and
immigration, and the Court’s decision to hear it is a major development, teeing
up what will likely be another huge Roberts Court decision on voting rights
and equality.
It’s
been settled since the 1960s that the Fourteenth Amendment’s guarantee of
equality requires states to draw district lines on the basis of population
equality. The question in Evenwel is what population matters for
purposes of the one person, one vote rule. The Supreme Court and every lower court to
consider the issue to date has held that
states may consider total population.
Urging the Justices to remake the law in this area, plaintiffs in Evenwel,
represented by the law firm of Wiley Rein, and backed by Edward Blum’s Project
of Fair Representation, have urged the Court to hold that the Constitution
requires state and local governments to draw districts based on voter
population, not total population. The plaintiffs argue that the districts
drawn by the Texas Legislature are unconstitutional under the Court’s one person,
one vote rule because the state counted all residents, citizens and
non-citizens alike, in drawing equally-populous districts.
Claiming
that growing immigrant populations are undercutting the rights of voters, the
plaintiffs in Evenwel argue that
non-citizens must be excluded from the constitutional calculus. If the
Court agrees, it would be a radical change in the law that would turn on its
head the basic ideal of representation for all persons at the very heart of our
Constitution. Blum, who backed Shelby
County’s attack on the Voting Rights Act, is now trying to remake the concept
of equal representation under the Constitution.
The
plaintiffs’ argument in Evenwel cannot
be squared with the Constitution’s text and history, which repeatedly recognize
that all persons – whether or not they are citizens or voters – are entitled to
representation and must be counted in apportioning legislative
representatives. Both at the Founding and with the ratification of
the Fourteenth Amendment, the American people wrote into the Constitution the
fundamental principle of equal representation for all persons. For good
reason, no court in the history of American law has ever accepted the plaintiffs’
argument that states must draw district lines on the basis of the number of
voters.
Article
I, Section 2 of the Constitution established the principle that
“[r]epresentatives . . . shall be apportioned among the several states .
. . according to their respective numbers.” The idea behind this
constitutional mandate was that “equal numbers of people ought to have an equal
n[umber] of representatives.” After the abolition of slavery and the
despised Three-Fifths Clause that added to the political power of the slave
states, the Fourteenth Amendment affirmed the principle of equal representation
for all persons, requiring that “[r]epresentatives shall be
apportioned among the several states according to their respective
numbers, counting the whole number of persons in each State.”
Importantly,
the Framers of the Fourteenth Amendment specifically considered and rejected
proposals to use the number of voters as opposed to the total number of people
as the basis for representation. The Framers recognized that “women,
children, and other non-voting classes may have as vital an interest in the in
the legislation of the country as those who actually deposit the ballot.”
As Senator Jacob Howard explained during debates over the Fourteenth Amendment,
“Numbers, not voters . . . ; this is the theory of the Constitution.” The
argument that voters, not persons, are the true basis of a representative
democracy is one that has been consistently rejected throughout our
Constitution’s history.
When
the Supreme Court established the one person, one vote rule, states across the
country drew district lines that overwhelmingly favored rural areas over urban
ones, diluting the representation of persons living in cities. The Court’s one person, one vote cases struck
down this regional bias, requiring states to draw lines on the basis of
population equality, ensuring equal representation for all. A ruling in favor of the plaintiffs in Evenwel would be a dramatic reversal,
benefiting rural districts over urban ones, which are much more likely to
have higher number of non-citizens and other persons who cannot exercise the
franchise. The upshot would be, as in
the pre-Reynolds v. Sims era, urban
districts with many more persons than rural ones, once again diluting the representation
of persons living in cities.
The “voters only” claim in Evenwel should be
rejected. How could it possibly be
unconstitutional for state and local governments to apportion representatives
based on “the theory of the Constitution”?
When Evenwel is heard next
Term, the Justices should recognize that states have the authority to ensure
equal representation for all persons by drawing state legislative lines on the
basis of total population.
David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.