Who Gets Counted?

Every ten years or so, after the most updated census results become available, states across the country begin the complex and laborious task known as redistricting. Taking into account a host of sensitive political considerations, each state legislature carefully divides that state into electoral districts, and the voters of each electoral district elect a representative to that state legislature. (The same process is repeated on a national level vis-a-vis Congressional representation.)

The Texas State Senate, for instance, is compromised of 31 members, and so that state — which incidentally was an independent country for nearly ten years before joining the Union in 1845 — is divided into thirty-one equal districts.

In 2011, the State of Texas produced one redistricting map that was promptly challenged in court. Two years later, the state legislature repealed its earlier map and came up with a new plan. Two Texans — Ms. Sue Evenwel and Mr. Edward Pfenninger — filed a lawsuit against the new plan, known as S172, saying that it violated the Equal Protection Clause of the Fourteenth Amendment to United States Constitution.

Their argument was a simple one: Unlike some other parts of the country, which divided the districts by calculating the number of eligible voters in each area, the Texas plan used the total population — including children and non-citizens.

Evenwel and Pfenninger and their supporters argued that the arrangement violates the constitutional requirement of one person, one vote. They claim that taking total population into account can lead to vast differences in the number of voters in some districts, along with corresponding differences in the power of those voters. One district may have only half the number of eligible voters than the neighboring district, but each will have only one representative in the local legislature. For example, a mainly rural district northeast of Houston has 584,000 eligible voters, while a neighboring urban district has 372,000 eligible voters.

After a lower court rejected the lawsuit, the case made its way to the highest court in the land, and on Tuesday, the U.S. Supreme Court agreed to take the case.

Among the groups weighing in on the issue is the American Civil Rights Union (ACRU), a conservative civil liberties group (not to be confused with the left-wing American Civil Liberties Union, or ACLU.)

In their brief, they point out that even the United States Department of Justice uses only citizen population in allocating legislative seats in redistricting litigation.

Furthermore, they argued that the Supreme Court has long held that legislative districts should establish that each citizen has equal representation in legislative bodies. “The doctrine of one person, one vote logically and morally grows directly out of the fundamental right to vote itself,” the brief says. “The equal right of all to vote logically gives rise to the right of all to an equal vote.”

In other words, if you can’t vote — you shouldn’t count at all.

The State of Texas on the other hand, citing previous Supreme Court decisions, argues that this is really up to the states to decide, and the federal court system shouldn’t be involved at all.

It also asserts that when the Fourteenth Amendment was drafted back in 1860s, this very question was debated.

A proposed constitutional amendment introduced in December 1865 would have apportioned congressional representation among the states “according to their respective legal voters, and for this purpose none shall be named as legal voters who are not either natural born citizens or naturalized foreigners.”

The proposal, however, wasn’t adopted, and the Fourteenth Amendment included no such language.

Since the drafters chose to leave the question open, the Supreme Court, Texas argues, should also.

In a particularly ironic twist, the lawsuit has drawn strong support from conservative groups, who ordinarily are strong advocates for states’ rights, and it was then-Gov. Rick Perry, a Republican, who signed the contested redistricting plan into law.

We will leave the legal aspects of the case to the law experts to argue and the Justices to decide, but from a layman’s perspective, there appears to be ample room for a middle ground approach.

If the State of Texas wishes to count American citizens who are too young to vote when they allocate their districts, it would seem that they are well within their rights to do so. Granted, these children can’t vote right now, but neither can those “eligible voters” who don’t bother to register, and yet the plaintiffs appear to agree that they should be counted.

However, when it comes to illegal immigrants, and possibly even those here legally but who are not American citizens, it would appear that those bringing the lawsuit have a much more valid argument.

This article appeared in print on page 10 of the May 27th, 2015 edition of Hamodia.