As the Supreme Court gratuitously grabs at the question of whether states, when drawing their own legislative districts, may count residents who are ineligible to vote, I’m trying very hard to find some basis to disagree with Josh Marshall’s assessment:
It is increasingly difficult to find any unifying theory or rationale behind the Supreme Court’s election and election financing decisions other than the goal of securing the electoral interests of the Republican party. That sounds harsh. But a simple process of elimination leaves little other conclusion. States rights, originalism, deference to legislatures, various constructions of democratic theory and a lot else are controlling except when they’re not controlling. Most of the decisions line up with the conservative jurisprudence espoused by the Court’s conservative semi-majority. Except when they don’t. Cases are plucked out of the lower courts long before the high court has any obligation or need to intervene. The new case which will review the ‘one person, one vote’ rule which has been reining [sic] law for half a century would likely diminish the voting power of cities vs rural areas, minorities vs whites and Democrats vs Republicans, if decided on behalf of the plaintiffs. In other words, why not?
The short version of the dispute: In 1964, the Supreme Court held, in Reynolds v. Sims, that state legislative districts have to be drawn in compliance with the principle of “one man one vote.” The ruling capped a series of Warren Court decisions designed to address the problem of rural over-representation in legislatures resulting from a decades-long unwillingness to redraw district lines to account for population shifts caused by urbanization. What the Supreme Court never settled conclusively was the matter of who counts as a person when apportioning according to one person-one vote.
The plaintiffs in Evenwel v. Abbott, two rural Texans represented by Project on Fair Representation (the conservative legal group known for its attacks on affirmative action and its takedown of key portions of the Voting Rights Act), are claiming that reliance on total population results in districts that are roughly equal in population, but unequal in eligible-voter population.The resulting “vote dilution,” in their view, constitutes a violation of the Fourteenth Amendment’s Equal Protection Clause, akin to the injury claimed by urban dwellers pre-Reynolds.
Other observers have pointed out how a victory for the petitioners would result in decreased representation for communities featuring disproportionate numbers of individuals who are ineligible to vote, such as children, prisoners, or non-citizen immigrants. But there are two other insidious, yet under-appreciated, dimensions:
- A victory for the petitioners would create perverse incentives to enact the modern equivalent of the notorious three-fifths compromise, in which each slave counted as 3/5 of a person for purposes of apportioning House seats and, by extension, votes in the Electoral College. Article 1, Section 2 of the Constitution states that House seats are to be apportioned according to “their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” The Fourteenth Amendment removed the three-fifths language but left the remainder intact. At first blush, then, the references to persons, as opposed to voting-age persons or even citizens, would appear to present a substantial barrier to the petitioners’ claim. But the issue at hand in Evenwel isn’t about apportioning representation to states, the subject of the quoted text above; it’s about apportioning electoral power within states. If the petitioners’ claim is upheld, Texas could gain national-level political clout by virtue of its sizable population of non-citizen residents, while at the same time denying those individuals any voice in government at the state level, and perhaps later at the federal level if the logic of Evenwel were to be extended to congressional districting.
- A win for the petitioners creates a specific perverse incentive when it comes to restoring voting rights to ex-felons. While states have generally moved since the mid-1990s toward making it easier for felons to have their voting rights restored, a few have moved in the opposite direction. For example, in 2011 Florida reversed a four-year-old liberalization and now requires ex-felons to wait between five and seven years before they may apply for reinstatement. Iowa similarly imposed a requirement to apply for reinstatement, while South Carolina and Tennessee expanded the category of ex-felons ineligible for reinstatement. These restrictions are hardly neutral in their effects, given the demographics of America’s prison population and persistent racially polarized politics. As a result, any effort at liberalization would have to overcome opposition motivated at least in part by concerns that restoring voting rights would boost Democrats’ electoral chances.
If you favor the status quo, you can take comfort in the unwillingness of any federal court to agree with the petitioners’ position. But you should also be concerned that the Supreme Court was so eager to tackle an issue on which lower courts have been unanimous to date. And you better hope that Josh Marshall is wrong on this one.