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SCOTUS: In drawing voting Districts, states can count non-voters

SCOTUS: In drawing voting Districts, states can count non-voters

Court rules that “one person, one vote” may include total population, not just total voters.

On Monday, the Supreme Court of the United States issued a unanimous ruling in Evenwel v. Abbott, a voting rights case that dealt with how districts are drawn.

The opinion was written by Justice Ruth Bader Ginsburg, with Justices Clarence Thomas and Samuel Alito concurring. With the unanimous ruling, Justice Antonin Scalia’s death was not a direct factor in this decision, but since the Court left a major issue still open, the critical question of who will fill Scalia’s seat still looms.

When drawing district lines, who should be counted?

The case originated when two Texas residents, Sue Evenwel and Edward Pfenninger, challenged the state’s legislative redistricting, which currently includes the total population of the area, as is commonly done across the country. The plaintiffs argued in favor of counting only those residents who were actual voters to draw the districts.

As the U.S. Constitution already requires Congressional districts to be drawn based on total population, this case dealt only with state legislative districts.

Using voting population would, naturally, exclude a significant number of residents, including minors, prison inmates, convicted felons whose voting rights have not been restored, and non-citizens. Currently, because the population numbers are drawn from Census figures, all residents are counted, including non-citizens, whether they are legal residents or even illegal immigrants.

“Overwhelming majority” of states have used total population

Ginsburg’s opinion noted that using total population was the method used in the “overwhelming majority of cases,” citing as one of the “rare occasions” when only voters were counted a 1966 case allowing Hawaii to use this method because of Hawaii’s unique situation with its “substantial temporary military population.”

“Appellants have shown no reason for the Court to disturb this longstanding use of total population,” continued Ginsburg, describing the practice as “a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.”

Ginsburg found merit in including nonvoters in the districting process because elected representatives represent voters and nonvoters alike:

As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.

Both Republicans and Democrats have benefited from counting non-voters.

Many liberal commentators took the position that drawing districts with voting population would benefit Republicans and rural districts, by shifting influence away from urban areas, which tend to lean Democratic. Caroline Frederickson, president of the liberal American Constitution Society, called the lawsuit an attempt to “dilute the political representation of minorities and children.”

However, counting non-voters can work to benefit Republicans, specifically when prisons are located in rural areas.

Back in 2011, Ross Ramsey at The Texas Tribune reported how large prison populations were used to bolster the numbers of the rural, Republican-leaning districts where the prisons were located. Ramsey described several rural districts with prisons where many of the inmates were Houston/Harris County residents before their incarceration.

If Texas had counted those inmates based on the address they had before being locked up instead of the addresses of their prisons, the nearly 30,000 incarcerated Houstonians around the state would have been enough to grant Harris County an additional legislative seat, which would have likely gone to a Democrat.

“Prison gerrymandering”

“Prison gerrymandering” has been a controversial practice for years. The Washington Times reported that Texas, Colorado, and Virginia were the top states using this practice after the 2000 Census, and noted a city council race in Iowa where only two votes were cast in a district that was “made up of 58 registered voters and 1,300 nonvoting prisoners at the Anamosa State Penitentiary.”

Lawsuits have been filed by liberal groups challenging this practice, including a suit brought by the ACLU in Jefferson County, Florida, where Jefferson Correctional Institute inmates counted for nearly half of the voting age population. According to Think Progress, Maryland,  New York, Delaware, Virginia, Massachusetts, Illinois, and California passed laws requiring or allowing states to count inmates at their last address before incarceration, and similar bills have been introduced in several other states.

Door cracked open for states to use voting population, but will they try?

Interestingly, the Court limited its ruling to rejecting the request to require Texas to using voting population to draw the maps, and stating that using total population was permissible under the Equal Protection Clause and the “one person, one vote” principle (as well as a widespread and long-accepted practice, as noted above).

Theoretically, this leaves the door open for a state to use voting population, but the Court did not resolve how they would rule. The State of Texas had argued that the Court should grant explicit permission to use voting population, and the Obama administration had wanted total population to be mandated, but the Court was persuaded by neither. Instead, the Court noted that they could not and would not rule on the issue of using voting population until they were presented with an actual case of a state using such a plan.

The end result is that states like Texas face a choice: they have been granted a green light to use total population to draw their state legislative districts, and may continue doing so. If they wish to switch to a voting population method, they will most likely face years of new litigation, as the stakes are high for both sides on this issue and the Court has deliberately refused to rule until they have an actual plan to review.

Follow Sarah Rumpf on Twitter: @rumpfshaker.


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Perhaps the eight judges should take an updated course in law, or current English language vocabulary. What part of the word illegal don’t they understand.??

    ugottabekiddinme in reply to Rick2guns. | April 4, 2016 at 5:50 pm

    If the result is so wildly wrong, how do you account for the fact that here you have an opinion on redistricting, i.e., voting issues, written by the leftward-most Justice (Ginsburg), and concurred in by the rightward-most Justice (Thomas). Seems to me they probably got it right.

    malclave in reply to Rick2guns. | April 4, 2016 at 6:56 pm

    What part of the word illegal don’t they understand.?

    For the House of Representatives, legality doesn’t seem to matter.

    “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

    I don’t know why SCOTUS would require states to ignore the 14th Amendment.

    healthguyfsu in reply to Rick2guns. | April 5, 2016 at 4:29 pm

    I think you misread, fellow. Illegal and non-voting are not the same thing…we aren’t Brazil…yet.

In all honesty this ruling makes sense. Voting has generally been left to the states, and this continues that. They’re not required to count illegal aliens, but they recognized the fact that everyone does anyways.

And I can see why they kicked the can down the road on only counting voters. By the time the issue is in front of the court again they empty slot should be filled, and instead of dealing with a hypothetical they’ll have an actual implementation in front of them to work with.

Gremlin1974 | April 4, 2016 at 7:12 pm

It should be limited to legal population only.

What–no 3/5 compromise?

CatoRenasci | April 5, 2016 at 8:19 am

The ruling seems frustrating, because it means fewer voters in a district full of illegal aliens (assuming they’re not voting illegally) will have more ability to influence elections than those in all legal citizen districts.

But, children have always been counted in population, and they’re not voters and not evenly distributed across districts.

Surely, then, as a matter of historical Constitutional law the ruling is correct then.

The more interesting argument is Thomas’ concurrence which states that the Constitution does not require “one man, one vote” – which was historically correct until the early 1960s decisions that stopped the states from using the same kind of system as the federal government – one house of the legislature based on population, one based on geography. When that system was upset, the balance of power in states such as California and New York shifted such that the large population centers dominated the states, doing within the states exactly what the systems were designed to prevent – running roughshod over rural interests – and which the US Senate was designed to prevent. We really need those decisions reversed.

Heck, the dead vote and some people get to vote multiple times in some states. It’s all about cheating to win and has nothing to do with following the Constitution.

This creates rotten boroughs in which the illegals weigh the system in favor of whomever is willing to provide illegal sanctuary to criminal invaders. In theory a state could import tens of millions (California) and then have a disproportionate impact on the presidential races, house of representative representation and subvert our entire system.

If you are using the 14th Amendment as your guide, then the relevant passage is about the non-citizens the ‘untaxed Indians’. They were not considered citizens of the US at the time and were not counted.

For those in favor of this abomination, your stripes are showing. You wish the US to become a third world Latin American country. Looks like you will get your wish.

buckeyeminuteman | April 5, 2016 at 12:49 pm

Illegal aliens? If you can count them, you can deport them!