Driving the challenge is Ed Blum, the conservative activist whose Project on Fair Representation also helped lead successful recent actions to have the Supreme Court neuter a key part of the Voting Rights Act in Shelby County v. Holder, and to limit the use of affirmative action in Fisher v. University of Texas.
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Gershengorn said that might also cause states and localities to sacrifice other important reapportionment principles, such as keeping communities intact and making the districts as compact as possible.
When some districts of roughly equal population have dramatically different numbers of eligible voters, shouldn’t Texas “at least give some consideration to this disparity that you have among voters?”
This undefined, nebulous term that the plaintiffs would have states use to apportion districts would fence out: children, the majority of whom are citizens, and of whom there are 75 million across our country; non-citizens, including those on their path to legal citizenship; people with mental disabilities; people who are eligible to register to vote but have not; people with felony convictions, of whom there are an estimated 6 million in our country; and many others.
The U.S. Supreme Court heard oral arguments Tuesday in a voting rights case that could change the way states draw boundaries for their legislative districts. But at the same time the Latino population in her district would be reduced from 54 to 46 percent because children would no longer be counted and Latino families tend to be larger.
Ginsburg later pressed Arizona Attorney General Mark Brnovich on the issue, but Brnovich said it was “irrelevant”.
The named plaintiffs challenging the Texas State Senate map are Edward Pfenninger, a YouTube conservative preacher, and Sue Evenwel, a member of the Texas State Republican Executive Committee.
Political and race concerns underlie the plaintiff’s case. Neither the challengers nor their lawyers came out on the Supreme Court steps to talk to reporters on Tuesday.
To be sure, those states could already have tried using total voters, as they’ve been allowed to do for almost half a century. “We have never held to the contrary”.
For instance, if Florida’s population grows but OH shrinks, the Sunshine State gains another representative as the Buckeyes lose a representative.
MARCIA COYLE: Well, that was a question that Justice Breyer asked towards the end of the arguments.
Consovoy said they would be represented, by their parents.
In contrast, in this case, Kagan told Consovy, you are arguing “that States have to do it the exact opposite way”. After all, they note, the 14th Amendment explicitly states that total population should be used for allocating congressional districts between states. Such a system would be unconstitutional, he said, only if it were targeted at limiting the voting power of a particular group. “Well, it is called the one person, one vote”, Roberts said. “That seems created to protect voters”. (The census does not collect information on who is eligible to vote.) At best, states would have to use estimates from the American Community Survey, which is collected infrequently, may not exclude all ineligible voters (such as felons) and does not include all eligible voters (such as those voters who are overseas). The second is that “representational equality is the real basis” and therefore that’s why you use population.
Keller dodged the question, only to face a series of skeptical queries from the Chief Justice and Justice Anthony Kennedy. “They were not eligible voters”.
Keller questioned the feasibility of doing that, noting that the challengers in this case had proposed no alternative map to do what they want.
Short of requiring the government to collect new data, the brief said, a ruling requiring districts to be based on equivalent numbers of eligible voters would be impossible to put in place with anything like the confidence provided by the census. But some advocates for minorities fear that if the court offers a high-profile confirmation of states’ right to choose their own system, it could have the effect of spurring some hesitant red states into action.
As to combining population and voting eligibility criteria, he noted that in NY, for instance, Manhattan has 9 percent children in its population, while Brooklyn has 30 percent children.
An attempt to equalize both population and voters would have especially bad consequences for minority representation. As big arguments go, this one was remarkably quiet.
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“Perhaps petitioners will ultimately fail on the merits”, Justice Antonin Scalia wrote for a unanimous court, but the law “entitles them to make their case before a three-judge district court”.
