Yesterday, this writer attempted to illustrate the redistricting case out of Texas- Evenwell vs. Abbott– which presents the question of what satisfies the definition of “person” in one person/one vote. This was a question never definitively answered in the original 1964 decision. Since then, every state has used the total population of the state as determined by the latest census to adjust district lines in an every-decade morass of minefields known as redistricting.
The biggest concern is equal protection under the 14th Amendment. As I illustrated yesterday, in states with a large voter-ineligible population, the drawing of district lines to capture some ideal overall population regardless of eligibility to vote actually penalizes certain citizens where their level of representation is diminished. In effect, you can have one legislator representing 60,000 members of the VEP (voter eligible population) and a neighboring legislator representing 100,000 members of the VEP. Clearly, the citizen in the latter district is receiving less, thus unequal, representation.
But, voter eligible population criteria presents two very important problems. First, it denies “representation” to those voter-ineligible citizens, namely every citizen under the age of 18. Thus, a soon-to-be-voter (age 16 or 17) would be excluded from the count even though they may be likely to vote in the next congressional election after redistricting. Further, it denies the citizenship of minors. Although highly unlikely, assume a district where the total population is 100,000 (and they are all legal), but it is a district of large families- everyone has four kids under the age of 18. That would swing the pendulum too far the other way where that district would gain an unequal advantage over another district of senior citizens and few minors. The probability of that being reality is nil, but it illustrates the problem that could be created.
Furthermore, one has to question who someone represents. Do they represent only those who show up at the polls on election day? Do they represent only those over the age of 18 who are eligible to vote whether they registered or not? Do they represent only registered voters whether they actually vote or not? Do they simply ignore the under the age of 17 crowd since they are not part of the VEP? Or do they simply assume that the VEP population “stands in” for the needs or concerns of minors?
This conundrum is nothing new. The Constitutional convention grappled with the concept, albeit in a different context. Seeking political advantages since the House’s composition was determined by population, the Southern states wanted the slave population counted in the census even though they were considered property and were certainly not part of any VEP. The solution was the infamous three-fifths compromise where slaves were counted as 3/5 of a person for census purposes. Thus, one can divorce the concept of representation from determining levels of representation.
With slaves, getting an exact amount then times that number by 60% was an easy task. With illegal immigrants, we are dealing with estimates since by its very nature, illegal immigrants are not apt to report themselves. One cannot get an accurate count on a state-by-state basis. Are states to use estimates from the Pew Hispanic Research Center or some other reliable source?
Some have argued that it is impossible to determine VEP, but that is not true. Today’s census methods are actually quite accurate and can also accurately project the future movement and growth of populations on a state-by-state method. Coupled with modern software technology, the task is easier than most think. Determining those numbers is not the problem. The “problem” is whether we want to use those numbers rather than gross population.
And states today regularly, depending on their voter eligibility laws, subtract out populations for districting purposes. For example, one does not add in the population of a state prison located in a rural county. Conversely, in every state convicted felons not incarcerated are counted in the census, but they are ineligible to vote in many states. Using VEP as the criteria to determine districts and the logistics involved is not that hard.
Ironically, the Obama administration, which was asked for their view by the Court, has taken a rather interesting position. They nominally side with Texas in this case arguing that total population has worked remarkably well for over 50 years and that is currently the only metric with highly accurate data. It then argues that the Court need not reach any constitutional issue until such time some other state adopts a metric like that proposed by Evenwell. All 50 states use total population. But then they also argue somewhat against the views of Texas in that states should be allowed “unfettered discretion” in determining the criteria.
Most Court watchers were surprised they took the case considering that there was no split among the circuit courts on the matter. That fact plays against Evenwell since no state uses VEP as the criteria for drawing districts. However, these same experts found it strange that since 1964 the definition of “person” was never delineated by any court in such an important issue with such potentially profound effects. That is the gist of the Administration’s argument- wait until some state adopts VEP as the criteria for determining districts.
The Court, in this writer’s opinion, needs to consult the Constitution. The census is mandated in the Constitution in order to determine representation in the House of Representatives. That is spelled out in Article I, Section 2, Clause 3 of the Constitution and gives very specific instructions on who is to be counted for these purposes: the “whole number of free persons, including them bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.” Nowhere in these directions for the census which is used for apportionment purposes does it state the age of a person, their immigration status, whether they own property, etc. It infers whole population minus those specifically listed (since changed by amendment).
If nothing else, this case should end the potential for controversy going forward and preclude states from adopting what Evenwell and others are suggesting here. The 1964 decision was wrong to leave such an important constitutional issue to the states. While they clearly have the right to preclude certain populations from voting (prisoners, convicted felons, mentally insane, etc.) and they have the right to make sure illegal immigrants do not vote by requiring valid photo ID, the Constitution’s text and the purpose of those words points towards whole population. The logistical problems of the alternatives could be overcome, but not the text.
My educated guess is that the Supreme Court will not upset the apple cart and rule in favor of the state of Texas (and all other states), perhaps with some guidelines that states will have to deal with in the future. The arguments against VEP- logistical, Constitutional intent and text- are too strong.