The U.S. Supreme Court on Tuesday heard a case on redistricting that could have a profound impact on voting and representation nationwide, as it considered the dynamics of the "one person, one vote" principle.
It's a case that is poised to upend the U.S. voting process and, some critics warn, "make millions of people who live in our communities invisible in our democracy."
In Evenwel v. Abbott (pdf), a case that emerged from a redistricting debate in Texas, the plaintiffs argue that states should only count eligible voters when drawing legislative district lines, rather than entire populations—an approach that would strengthen Republican strongholds in rural areas, while thinning out representation in urban centers, which have a higher proportion of non-eligible voters, such as non-citizen immigrants, children, and those disenfranchised through felony convictions.
"Everyone deserves fair and equal representation regardless of voting status or age. A ruling in favor of Evenwel would deny us fair representation in government and leave approximately 55 percent of Latinos unrepresented and affect many other groups—eroding Latinos', Asian-Americans', and African-Americans' political power," said Cristóbal J. Alex, President of Latino Victory Project. "We hope the Supreme Court will uphold the principle of one person, one vote. We should not create a second class of individuals who are subject to laws written by those who are not accountable or truly representative of the people."
Because the decision in the case could impact nationwide redistricting rules, a ruling in favor of the plaintiffs has the potential to "shift political power from larger areas that are more ethnically diverse and shift them more over to rural areas," ACLU-Texas staff attorney Satinder Singh told Common Dreams on Monday.
That concern extends to numerous states with large minority populations.
"If changed, we will be moving from a standard that includes all people in the representation process to a scheme that excludes minors, undocumented veterans, and takes away the power given to communities to elect one of their own," said Chuy Garcia, Illinois' Cook County commissioner and populist icon.
In a city like Chicago, said Alderman Joe Moore, a ruling in favor of the plaintiffs could "make millions of people who live in our communities invisible in our democracy."
The Supreme Court first imposed "one person, one vote" in 1964, when it ruled in Reynolds v Sims that the equal protection clause of the 14th Amendment requires state legislative districts to be comprised of roughly equal populations, though it gave individual states the power to decide on how they would determine "populations." Most states leaned toward counting total residents, but a small handful of others only refer to voters.
But through decades of precedent, the court "never clarified what they mean by one person," Singh said.
Justices have historically used "person" and "voters" interchangeably, he continued. "It's a fundamental concept of democracy. Ultimately the question they're going to be deciding is, what does this principle mean?"
It's a question of representation that has been rejected by Texas Governor Greg Abbott, a state federal district court, the U.S. Department of Justice, and ACLU-Texas, among other organizations. In fact, as Richard Hasen writes for SCOTUSblog, the case could be seen as nothing more than an attempt at "taking power away from the states and having the Supreme Court overturn precedent by imposing through judicial fiat a one-size-fits-all version of democratic theory unsupported by the text of the Constitution or historical practice."
In fact, Hasen writes, the plaintiffs "are seeking to impose a standard which is not supported by the text of the Constitution."
But the lawsuit has nonetheless climbed the judicial ladder. The plaintiffs, Titus County Republican Party chairperson Sue Evenwel and Montgomery County "party stalwart" Edward Pfenninger maintain that current standards weaken the influence of voices from areas with more registered voters, but smaller populations. Opponents, including Democratic Texas Rep. Marc Veasey and Mexican American Legislative Caucus voting rights counsel Joe Garza, say a redistricting policy that values registered voters over total residents would shut out large chunks of minorities, particularly those who are black or Latino.
"This legal challenge would do great harm to the state of Texas and potentially to other states that have very young populations and a significant number of noncitizen residents," Veasey told McClatchy on Monday. "For Tarrant County in particular, this could mean that over 100,000 noncitizens would no longer be counted when assigning representation, according to a 2015 Migration Policy Institute report, and 27 percent of the county would be discounted due to be their age, according to the 2014 U.S. Census."
Garza added, "We would lose seats in Texas—we would lose two districts in the Senate. It is an advantage for the white population."
The implications of such a decision are far-reaching. In a state like Texas with a high population of Latino and minority voters, strengthening rural votes at their expense could lead to older, white constituents having "an outsize voice at the legislature," Singh told Common Dreams. "A very small number of people would have a very large voice and would be able to decide things for a state with 30 million people."
That "would certainly cause some representative issues and is a troubling notion of what democracy is," he said.