The plaintiffs are a group of about 12 Republican voters.
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At Supreme Court oral arguments in a case that could change the fundamental meaning of “one person, one vote”, the justices tiptoed around the racial and immigration issues that could explain why the case was at the high court in the first place. The status of state legislative districts, however, is less clear.
The middle-ground approach – giving governments an option – could instigate a wave of redistricting efforts in Republican-controlled states.
The new districts were drawn to maximize Latino voting power in part by using the city’s large population of Latino noncitizens to fill out Districts 1 and 2.
Blum says that by his reading of the Supreme Court’s decisions outlining the one person, one vote principle, references to voter equality in those decisions overwhelmingly outnumber references to population equality.
But what does that mean? And while the U.S. Constitution requires use of total population in apportioning seats in Congress among states, a ruling for the plaintiffs could lead to a later challenge to the way congressional districts are carved up within states.
UT-Austin, in its Supreme Court brief, says the charge that it is favoring “privileged minorities” is unfounded. If the Supreme Court rules for Evenwel, those white suburbs would instantly gain even more power in the state legislature.
Two Texas voters are challenging the 2010 Texas reapportionment as unconstitutional because it created 31 state Senate districts to be as equal as possible in total population. “The problem is that what you’re forgetting is the dual interest”, she said.
Others disagree. “I don’t think it has ever been settled law”, says Edward Blum, founder of the Project on Fair Representation in Austin, Texas.
The case centers on whether state lawmaker’s districts should be determined by the total population or just eligible voters. The Constitution infamously required enslaved African Americans to each count as three-fifths of a person for the purposes of drawing House of Representatives district boundaries, though they certainly were not allowed to vote. They argued that they were underrepresented because the state looked only at total population. They haven’t done so, in part because it would be logistically hard, since the Census doesn’t ask about citizenship, so states would need to use other data sets that are poorly designed for the goal. The state of Texas is expected to argue the difficulty of establishing such a metric, and that elections represent a broader concept that elected officials are responsible to all people they represent.
However, District 114, which is wholly contained within the city of Dallas, is one of the wealthiest house districts in Texas (home to former President George W. Bush, Ross Perot, and Mark Cuban) and distinctly more moderate in its political profile – fiscally conservative but more socially moderate. Some have called him the “mastermind” behind a series of cases that have successfully challenged long-established civil rights principles.
The group was victorious in 2013, when the Supreme Court, in Shelby County v. Holder, struck down the heart of the historic Voting Rights Act of 1965.
A previous blog post provides background; in sum, the 5th Circuit originally upheld the University of Texas’s structuring of its admissions process, which considered race as a factor. In addition, Fisher herself will not benefit from the ruling because she graduated from Louisiana State University in 2012, and one liberal justice, Elena Kagan, is absent from the case due to her earlier work on it while serving in the Justice Department.
If the challengers prevail, many of those new Texans would not be counted in drawing legislative district lines because they are too young to vote, not citizens or otherwise prohibited from voting.
“Aliens are not “virtually represented” by voters who happen to live near them”, they wrote. In that case, the high court will likely be prepared to take up affirmative action again. Kennedy and conservative Chief Justice John Roberts questioned why it should be hard to ensure equal representation while also protecting the rights of individual voters.
On one side were those making the same argument that the challengers are in this case, he says, namely that “representation should be based on number of voters”. Permitting states to strip non-voters of representation would mean that areas with larger numbers of children and other non-voters could lose influence and, ultimately, could lose out on resources like funding for schools and other government programs upon which everyone in the community depends.
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A brief filed by five demographers contends that it could be done, using a tried-and-true Census Bureau sampling technique instead of actual enumeration.
