“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.” This line from Section 2 of the 14th Amendment must have seemed fairly straightforward to its authors. In light of the first section’s elevation of blacks to full citizenship in all of the several states, Section 2 was designed to remove Article I’s accounting, for the purposes of apportioning representatives to Congress, of slaves as three fifths of a person. Indians, in the 14th Amendment as in Article I, remained outside the citizenry, and thus were not to be counted for this purpose.
Were the authors of the 14th Amendment able to jump forward 150 years, however, they would no doubt be scratching their heads over the U.S. Supreme Court’s ruling in Evenwel v. Abbott, handed down in early April.
Most reporting and commentary on the ruling characterized it as a “victory for voting rights” and a reaffirmation (in the words of the New York Times) of “a fundamental principle of the American political system, that of ‘one person one vote.’”
Except that it was neither of those things. The fight was over what “one person one vote” meant, rather than the more fundamental question of whether the Constitution requires that principle at all. And it concerned the question of what forms of redistricting state legislatures are constitutionally allowed to use, rather than whether the entire redistricting process (commonly known as “gerrymandering”) that has flowed from the Court’s imposition of “one person one vote” has been a boon or a bane for democracy in America.
The plaintiffs argued that “one person one vote” should be based on the number of eligible voters in a state, rather than on sheer numbers; the Court, in a decision authored by Justice Ruth Bader Ginsburg, did not definitively say that states could not change their method of redistricting, but did hold “based on constitutional history, this court’s decisions and longstanding practice, that a state may draw its legislative districts based on total population.”
The New York Times correctly declared that, “As a practical matter, the ruling mostly helped Democrats and upheld the status quo.” Why? Because “Counting all people amplifies the voting power of places that have large numbers of residents who cannot vote legally—including immigrants who are here legally but are not citizens, illegal immigrants and children.”
Yes, you read that correctly. Since the numbers used for redistricting are drawn from the Census, and the Census today counts not only citizens but noncitizen aliens, both those here legally and those here illegally, a state could potentially end up with two legislative districts, one of which comprises almost entirely U.S. citizens, while the other may have proportionally fewer citizens because it has a high number of aliens residing within its borders.
That’s why the plaintiffs argued for using the number of eligible voters, rather than the total population—and why this case originated in Texas, rather than in, say, North Dakota. Given the state of federal jurisprudence today, it was likely always a nonstarter, and despite Justice Ginsburg’s decision theoretically leaving open the possibility that the eligible-voter method could be used, neither the Texas legislature nor the governing body of any other state is going to be quixotic enough to adopt a different method of apportionment.
But back to the New York Times. It is true that the decision “upheld the status quo,” but in political terms, the “status quo” is not stationary but constantly moving. Continued immigration, both legal and illegal, moves the needle every ten years, as immigrants tend, as they have since the late 19th century, to congregate in large urban areas. The Court has affirmed what savvy politicians have long known: Noncitizen aliens in their district, legal and illegal, may have no right to vote, but they hold political power nonetheless—and therefore cannot be ignored.