The U.S. Supreme Court unanimously rejected an effort to change political boundaries and reduce the voting strength of the nation’s Latino population on Monday.
Two residents of Texas urged the court to rule that in drawing legislative boundaries to create districts with roughly equal populations, states should count the voting population, not the total population.
Using the total population figures, the challengers said, dilutes the voting power of residents in districts with large numbers of people who are not eligible to vote, violating the one-person, one-vote requirement.
But not a single justice ruled for the challengers.
“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,” wrote Justice Ruth Bader Ginsburg for the court.
The challengers, she said, “have shown no reason for the court to disturb this longstanding use of total population.”
Ginsburg’s opinion was joined by Justices John Roberts, Elena Kagan, Sonia Sotomayor, Stephen Breyer and Anthony Kennedy. Justices Clarence Thomas and Samuel Alito each wrote separate concurring opinions.
Relying instead on voting population could result in fewer districts in areas that elect Hispanic representatives. Opponents of the idea said it would shift political power away from urban areas with large minority populations, which tend to vote for Democrats, and toward rural areas, where Republicans do better at the polls.
The nation’s founders, Ginsburg said, understood that “representatives serve all residents, not just those eligible or registered to vote.”
In a concurring opinion, one of the Supreme Court’s conservatives, Justice Alito, said Monday’s decision holds only that states are not required to count total population. The ruling does not bar states from instead counting the voting population, which he called “an important and sensitive question that we can consider if and when” such a case comes before the court.
The challenge did not involve the drawing of congressional district boundaries, because the Constitution requires that to be based on the total population figures derived from the census.
Texas opposed the challenger’s attempt to change the state’s method for drawing its state legislative districts, arguing that using either total population or voting population is allowed. The U.S. government argued that only total population is allowed. Some voting rights advocates worried that a court ruling in favor of Texas’ position, though technically a victory, might lead Texas and other red states to switch to a voter-based system on the next round of redistricting after 2020.
But Ginsburg wrote that the court wasn’t required to address the question of whether only total population was allowed, and did not do so. That’s likely to mean states continue to use total population to draw their districts.
“Some expected that if the Court gave Texas the green light to choose, as Texas argued it had the right to do in this litigation, then in the next round of redistricting, it would have done so in order to increase the number of Republican districts in the state,” wrote the election law scholar Rick Hasen. He called the court’s decision not to reach the issue “a big victory for the federal government’s position.”
Ginsburg wrote that both the debate over the 14th Amendment and legal precedent support the view that total population is permitted as the basis for drawing districts. And she added that holding the opposite would throw elections into chaos.
“Appellants have shown no reason for the Court to disturb this longstanding use of total population,” Ginsburg wrote.
And she added that non-voters, too, need representation. “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,” Ginsburg wrote. “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.”
Before the February death of Justice Antonin Scalia, some voting rights advocates and commentators had feared that the Supreme Court might use the case to deal another blow to voting rights, after weakening the Voting Rights Act in 2013. But Richard Pildes, a leading election law scholar and practitioner who has worked for numerous Democratic candidates, had predicted that the court would easily reject the challenge. Pildes wrote Monday that the ruling represented “an overwhelming consensus … for the straightforward resolution of the issue, despite the wildly exaggerated fears that had been stoked up about this case.”