The United States Supreme Court is scheduled to hear arguments Dec. 8 in a case called Evenwel vs. Abbott. It warrants attention, in part because of its potential for damaging American democracy, but also for the way the thinking behind it so clearly outlines much of what is wrong with present-day politics.
Sue Evenwel is the Republican county chairwoman from Titus County in East Texas. She and others sued the state of Texas claiming that the way it drew the boundaries for legislative districts diluted the influence of their votes while assigning undue influence to others. (The Abbott in the case is Texas Gov. Greg Abbott.) The case was dismissed by a three-judge district court and sent directly to the Supreme Court.
The crux of the matter is this: Should state legislative districts be drawn to include roughly equal numbers of people – as they are now – or should they be required to include approximately equal numbers of voters?
A lot of people are not voters – children, non-citizens (in the country legally or not), prisoners and so forth. Evenwel and her supporters argue that states should base their districts on the number of eligible voters, or what they call the “citizen voting-age population” or CVAP.
It would make a difference. Texas legislative districts vary in raw population counts by less than 10 percent. They vary by CVAP count by as much as 50 percent.
Looking just at that, it would seem that Evenwel has a good case. Counting all people means some districts have fewer voters who thus have greater individual influence.
Except, of course, that it’s pure sophistry. The constitutional issue is not voter power, but the equal representation of all people. Children are not allowed to vote, but deserve to have their interests represented.
The language of the Constitution says apportionment for congressional districts must be based on “the whole number of persons in each State excluding Indians not taxed.” That comes from the 14th Amendment, which supplanted the original clause that deemed slaves to be three-fifths of a “free person.” (Native Americans became citizens in 1924. There are no “Indians not taxed.”)
Note, though, the use of the word “persons.” As critics have pointed out, the Framers and those who wrote the 14th Amendment clearly knew the difference between “persons” and “voters.”
This gets complicated by a 1964 Supreme Court ruling that created what has become known as “the one-person, one-vote” rule. But there too, the language of the ruling said legislatures “must be apportioned on a population basis.” Population, not number of voters.
Moreover, the redistricting plan Evenwel advocates may not even be possible. Nobody tracks CVAPs. A brief filed by former directors of the Census says, “Adequate data to support (Evenwel’s) positions simply do not exist.”
In any case, the Evenwel case is a naked power grab. Minority groups – particularly Hispanics, in Texas’ case – typically include more children and fewer eligible voters as a percentage of their overall numbers. So too, do poor and immigrant populations.
The result then, and no doubt the intended outcome, of Evenwel prevailing would be to produce legislative districts that are, in the words of constitutional law professor Garrett Epps, “older, whiter, richer and more likely to vote Republican.”
That is not how representative government should work. As noted, this bears watching.
