The Supreme Court will hear a case that could give a green light to states to create legislative districts based not on total population but on the total number of voters. The difference may sound technical, but the upshot could potentially be a significant reduction in Latino voting power, just as Latinos are emerging as a major force in American politics.
The Justices announced Tuesday that they’d hear an appeal in Evenwel v. Abbott, a case that challenges Texas’s practice of counting non-citizens in creating its legislative districts. Counting total population has long been the practice of most states.
Driving the challenge to that practice is Ed Blum, the conservative activist who 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*. The Supreme Court’s decision to take the Evenwel case after it had been rejected by a three-judge federal appeals panel suggests it could be sympathetic to Blum’s argument.
That argument, in a nutshell, is that counting total population violates the one-person, one-vote principle that the 14th Amendment of the Constitution has been held to require. That principle means that “when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials,” the plaintiffs write in legal documents asking the Justices to take the case, quoting a 1970 Supreme Court ruling.
Texas, in response, says the Supreme Court has already made clear that it’s OK to use total population, and no other courts have found that Texas can't do so.
Indeed, the Justices' decision to take the case surprised some experts.
“Like Texas, I had considered the issue fairly settled by the Supreme Court that states have the power to decide whether to use total population or another measure for drawing district lines,” the election law scholar Rick Hasen, who teaches at the University of California, Irvine wrote online Tuesday. But he added: “That’s not to say that the one person, one vote concept was clear,” noting that other scholars have raised questions about it.
If the plaintiffs prevail, the consequences could be enormous in states with large Latino populations, especially Texas, boosting the power of areas that have few non-citizens at the expense of those that have many. Michael Li, counsel for the Brennan Center’s Democracy Program and an expert on Texas redistricting issues, noted that in places like Dallas and Houston, around 50% of the adult population aren’t citizens.
Requiring districts to be drawn based on citizens, said Li, would make it harder to draw compact Hispanic-majority districts under the Voting Rights Act. Instead, Hispanic-majority districts would become more oddly-shaped, and therefore more easily challenged as illegal.
Perhaps more important, it might also lead to fewer Hispanic-majority districts at all. And each Hispanic district would have many more actual people, counting non-citizens, than the non-Hispanic districts—further diluting the level of representation that Hispanics receive.
“In states with fast growing Hispanic populations, it could become harder to draw districts under the Voting Rights Act to give Hispanics their share of power,” said Li.
The case comes at a time when Texas’s soaring Hispanic population is threatening, over the long-term, to reshape the state’s politics. For over a decade, whites have made up less than 50% of Texas’s population. And by 2044, Hispanics will be a majority, according to recent data.
The shifting demographics have led to fights over political power. In this case, Texas finds itself defending a system that boosts minority influence. But in several other recent cases—most notably, the state’s ongoing redistricting litigation, and its voter ID law—it has been on the opposite side.
In both of those cases, courts have found that the state’s Republican administration deliberately discriminated against minorities. Li said that could raise the question about how vigorous Texas’s defense in Evenwel will be.
Correction: This story originally referred to Ed Blum as a lawyer. He is not.