Columns » Jay Barth

One person, one vote (2015 style)



The United State Supreme Court began its new term Monday, a year in which we are likely to get definitive decisions on the future of affirmative action in higher education, mandatory union dues, and possibly (if the Court accepts a major case from Texas) abortion. It is also a term in which the Court will spend time with a case that resembles a highly theoretical class discussion in one of my American Constitutional Law courses. As unlikely as it was to ever make it this far up the judicial food chain, Evenwel v. Abbot could begin a trend that would decidedly shift electoral power in the United States.

A Texas-based group founded in 2005 to challenge preferences grounded in race and ethnicity through litigation, the "Project on Fair Representation," is the chief proponent of Evenwel, a case that questions a key assumption of a series of precedents now celebrating their half-century anniversary: the "one person, one vote" cases of the 1960s. Those cases assumed a "person" to be anyone identified by the U.S. Census as a resident, no matter their age, their citizenship status, or any other aspect of their eligibility to be a voter.

The "one person, one vote" cases were decided at a time when the percentage of foreign-born Americans was still relatively small; that is no longer the case in an increasingly diversified nation. Because noncitizens tend to be clumped in urban areas, the voting residents of their districts actually end up with slightly more electoral power than rural and suburban areas with smaller numbers of those ineligible to vote. The question in Evenwel is whether those disparities present a legitimate Equal Protections concern. Although the case only involves state Senate apportionment in Texas, the logic will likely quickly be expanded to congressional district line drawing as well if the proponents of change prevail (as was the case in the 1960s, when the redistricting revolution begin with state-level litigation) and, ultimately, to the apportionment of the Electoral College.

It is clear that a victory for the plaintiffs would mean that noncitizens and (more evenly distributed) minors would both be excluded from the count for apportionment purposes. It is less clear how far the logic would extend. For instance, most assume felons who have yet to regain their voting rights would also be eliminated from the apportionment counts. However, it is quite logical that only registered voters would be counted (although, because of the constantly changing number of registered voters, that becomes quickly messy to implement). Whatever the case, if the "Project on Fair Representation" advocates win in the Evenwel case, the elegant "one person, one vote" principle would become decidedly less tidy.

While much remains unclear even if there is a victory for the plaintiffs, what is clear is that political winners and losers would emerge from a new way of apportioning legislative districts. Across the nation, urban areas would obviously lose power. It would also become more difficult to draw majority-minority districts meaning that the number of representatives of color would decrease at all levels. Finally, certain states (such as California, Arizona, Texas, Florida and New York) would lose power in Congress and in the Electoral College as a result of the shift. The benefits to Republicans would not be universal, but conservatives would generally win from an Evenwel victory.

Interestingly, while that result would be beneficial for conservative interests nationally, in Arkansas a different pattern would be shown. The relative losers in the battle in Arkansas would be the most Republican portions of the state. At the congressional district level, while three of the four congressional districts would remain at or about 545,000 eligible voters (not taking into account the more complicated felon disenfranchisement issue), Northwest Arkansas's Third Congressional District would hold only about 508,000 eligible voters. Two of the three counties who would lose the greatest share of their total population in such a reapportionment scheme are the large Northwest Arkansas counties of Benton and Washington (Yell County would also lose more than a third of its population count in the shift). This means that the 3rd Congressional District (and key legislative districts in that area) would have to gain more geographical turf. Because of the overarching Republicanism of the state at present, the electoral ramifications would be minor, but Northwest Arkansas would lose some of its growing political power.

We will know a good deal more about the direction the Supreme Court is headed on the issue once oral arguments take place in the coming months (the date for the oral arguments is not yet scheduled). Some contend that the Court will ultimately pull back from what would be a big win for conservatives, but also a deeply disruptive decision. If the Court heads in a more activist direction, however, U.S. politics for the coming generation would be transformed.

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