The Supreme Court heard arguments Tuesday in a case that could radically reshape the electoral map—reducing the political power of Latinos and handing more sway to Republicans and their voters.
In Evenwel v. Abbott, two Texans claim their votes are unfairly diluted by Texas’s practice—in line with almost all other states—of counting total population when it draws its state legislative districts. They say the principle of “one person, one vote”—enshrined in law in a series of 1960s cases—requires that states count only eligible voters, and exclude non-citizens, children and others who can’t cast a ballot.
If that argument prevails, states would have to redraw their congressional and state legislative districts in ways that would give much more representation to rural, predominantly white, Republican-leaning areas, which have high proportions of eligible voters. The losers would be residents of places that have a lot of non-citizens and children—that is, Democratic-leaning urban areas.
In Tuesday’s arguments, not a single conservative justice asked a question of the lawyer for the plaintiffs—traditionally a good sign for the case’s chances. But the justices did appear concerned about the practical impact of a ruling for the plaintiffs, which could create redistricting chaos. A study by the Brennan Center for Justice, which opposes the challenge, found every state in the country would need to redraw its state legislative maps. Half of Arizona’s state Senate districts would all of a sudden be presumed unconstitutional.
And Justice Ruth Bader Ginsburg noted that by the logic of the plaintiffs’ argument, women shouldn’t have been counted in redistricting for much of our history.
“Is it your view that what the Fourteenth Amendment means is that in all the years between, what was it, 1868 and 1920, it was wrong for the states to include, for these purposes, women?” Ginsburg asked William Consovoy, a lawyer for the plaintiffs. “They were not eligible voters.”
“There is no question that was a problem,” Consovoy conceded.
Already, state-level gerrymandering has given Republicans a long-term hold on the House of Representatives, even when more people vote for Democrats. And the undemocratic nature of the Senate has the same effect. A ruling for the plaintiffs here could further skew our electoral system toward the GOP, and away from minority voters.
Democrats have condemned the challenge. “This is an assault on our democracy and threatens the ability of elected officials across the country to adequately represent and serve our communities,” Democratic National Committee chair Debbie Wasserman Schultz said in a statement Tuesday. “Our children and everyone living in our communities deserve a voice even if they are not able to cast a ballot.”
Beyond the partisan, demographic and practical implications, the case also raises profound questions about our system of representation. In essence: Do people who can’t vote still deserve representation?
Richard Pildes, a prominent election law scholar at New York University, writing earlier this year, called the issue “a fundamental, categorical one about the essential interpretation and meaning of equal protection in the context of designing our basic democratic institutions.”
Most legal observers say it’s unlikely the Supreme Court will rule for the plaintiffs. After all, they note, the 14th Amendment explicitly states that total population should be used for allocating congressional districts between states. So it would be strange indeed if that method were prohibited for drawing districts within states. Not to mention that the Constitution allows states to extend the right to vote itself to non-citizens.
But even if the plaintiffs lose, the ruling—depending on how it’s written—could still spur some red states to voluntarily switch to a system that only counts voters.
That’s because the court might well take what seems like a compromise position: It might say that while states aren’t barred from using total population, they don’t have to do so either. In other words, it’s up the states. Indeed, it’s worth noting that Texas is not arguing that states must use total population, only that they’re allowed to do so. A ruling like that could tempt some Republican-controlled states with large non-citizen populations—perhaps Arizona, Florida or even Texas itself—to switch to using total eligible or registered voters.
To be sure, those states could already have tried using total voters, as they’ve been allowed to do for nearly half a century. They haven’t done so, in part because it would be logistically difficult, since the Census doesn’t ask about citizenship, so states would need to use other data sets that are poorly designed for the purpose. But some advocates for minorities fear that if the court offers a high-profile confirmation of states’ right to choose their own system, it could have the effect of spurring some hesitant red states into action.
Driving the challenge is Ed Blum, the conservative activist whose Project on Fair Representation also helped lead successful recent actions to have the Supreme Court neuter a key part of the Voting Rights Act in Shelby County v. Holder, and to limit the use of affirmative action in Fisher v. University of Texas.
Blum may have erred in picking his plaintiffs this time, however. Sue Evenwel, a Texas Republican activist, has written that showing tolerance to Muslims could allow Shariah law to “usurp the Constitution,” and has said all money donated to mosques funds Jihad. The other plaintiff, Ed Pfenninger, has said Jews are “enemies of the cross,” and that God created Hitler and the Holocaust because he “wanted Jews back into the land.”