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.