And though it sounds like basic math, the sum of the decision could equal much more than its parts. At stake is the concept known as “one person, one vote” and whether the local and state elected officials represent the interests of every citizen or just those who eligible to vote.
Drawing districts based on total population is a standard enshrined in the 14th Amendment and has been the governing criterion across the United States for over 50 years. But this challenge, which is backed by Edward Blum and his Project on Fair Representation, a conservative nonprofit with deep pockets, could radically change that precedent. And if his team succeeds, many state and local electoral maps will shift to give more influence to white, older, rural communities, which tend to favor Republican candidates, over younger, urban communities of color, which more often vote for Democrats.
Blum says it is a matter of equal representation, but included among the group not necessarily eligible to vote in every state — and not deserving of representation on Blum’s ideal electoral map — are resident immigrants, released felons and children under the age of 18.
“Children are the largest group of ineligible voters,” said Nina Perales, the vice president of litigation for the Mexican American Legal Defense and Education Fund, in a press conference held after the justices heard oral arguments. The group filed an amicus brief on the side of Gov. Greg Abbott and the state of Texas, which wants to maintain its current system of drawing population-based district lines.
If the eligible-voter standard were applied instead, children and other nonvoting groups would not count when determining the boundaries of an electoral district.
Take, for example, the section of Houston now represented in the state Senate by Sylvia Garcia. At present, that district has a total population of about 813,000. But if the high court sides with Evenwel, that district would swell to more than 1 million people, as the boundaries would broaden to find more voting-eligible adults.
And that would change the demographics of the district substantially. The Hispanic population, currently a majority in what is Texas’ 6th District, would drop to 45 percent, according to Garcia, who joined the post-arguments press conference. The electorate would also skew older. Garcia added that the redrafting of district lines would likely cost Houston one or two seats in the state Senate.
It is a plan that could make Garcia’s next election a tougher one. But more important, she said, is the challenge to why she got into politics in the first place.
“Elections are about the ballot box, but when I govern, I govern for all of my constituents” and not just the ones that vote, she said.
Civil rights groups have focused on the effect a voter-based plan would have on the influence of Latino voters in a state like Texas, which gained a seat in Congress in the 2010 census, in good part because of growth in the Hispanic population. But questions from many on the court seemed to focus on logistics and tradition.
Justice Anthony Kennedy wondered why one way of counting population in a district is exclusive of the other. “Why can’t they have both?” he asked.
When Texas Solicitor General Scott Keller explained how difficult it would make complying with other mandates for determining the size and shape of district, like keeping close to county lines, Kennedy seemed to concur.
Justice Sonya Sotomayor questioned if enough data was available to assess a population of just those eligible to vote, as opposed to registered voters or the general population. It was a question the lawyers for the petitioners couldn’t seem to answer.
Justice Elena Kagan wondered how Evenwel’s team could reconcile the U.S. Constitution — which requires that federal congressional districts be drawn using total population — with their argument that states should be constitutionally prohibited from using the same standard.
Justice Ruth Bader Ginsburg also seemed concerned with changing the rules after 50 years where a total-population model has been precedent. William Consovoy, the attorney for Evenwel and Pfenninger, replied that “if tradition were the rule,” the decisions that put the current standard in place would have been decided another way.
Ginsburg also pointed out that under Consovoy’s version of the law, women should have been excluded from districting decisions in the days before they were granted suffrage.
It was an argument echoed by Leah Aden, an assistant counsel in the political participation group for the NAACP Legal Defense and Educational Fund. “We know our history,” she said, “counting African Americans as three-fifths of a person” when slavery was legal in the U.S. If the Supreme Court favored Evenwel, Aden said, “millions and millions of people could be counted as zero-fifths of a person.”
A ruling in the case is expected in June.
With the Associated Press