One Person, But Only 2/3 of a Vote

header-hoover-institution-fellows1-1WSJ, Editorial Board

Does counting illegal immigrants dilute some American votes?

BN-LP315_3evenw_M_20151207182245Few Supreme Court doctrines are firmer than “one-person, one-vote” under the Fourteenth Amendment, first promulgated in Reynolds v. Sims in 1964. We are about to find out if the Justices have the courage of their convictions when that principle threatens entrenched political interests.

On Tuesday the High Court hears oral arguments in a case that challenges whether illegal immigration has made some votes more important than others. Each decade the Census Bureau counts the U.S. population, including the number of illegal immigrants. The total population is then divided into districts that, under the “one-person, one-vote” precedent, are supposed to have roughly equal populations.

The problem is that undocumented immigrants tend to congregate in some areas over others. The plaintiffs in Evenwel v. Abbott claim that their votes are diluted—in violation of one-person, one vote—because their districts have fewer illegal immigrants.

Plaintiffs Sue Evenwel and Edward Pfenninger live in Titus and Montgomery counties, respectively, both relatively rural areas in Texas with few immigrants. While all Texas state legislative districts have a total population of around 811,000, Ms. Evenwel’s district has 574,000 people eligible to vote and Mr. Pfenninger’s has some 500,000.

By comparison, the district around Brownsville, a town near the border with Mexico, has only 372,000 eligible voters. Ms. Evenwel says her vote is diluted because it carries about two-thirds the weight of a vote in Brownsville.

The Supreme Court’s precedents couldn’t be clearer from Reynolds to the present day. In Lockport v. Citizens for Community Action, the Justices wrote in 1977 that “[I]n voting for their legislators, all citizens have an equal interest in representative democracy” and “the concept of equal protection therefore requires that their votes be given equal weight.”

The Court has also acknowledged that when total population and the number of eligible voters diverge, representation should follow the eligible voters. In 1966’s Burns v. Richardson, the Court approved a Hawaii districting plan based on eligible voters because to do it based on total population would have meant counting tourists and military personnel. To count total population would have created “a substantially distorted reflection of the distribution of state citizenry,” the Court wrote.

Texas and the Obama Administration claim that their way of counting total population must be used because it’s impossible to break down illegal immigrant populations by district. But that’s not true. The Census Bureau estimates the total U.S. illegal immigrant population based on its house-by-house counting. It can certainly apply those estimates by district and state.

The real worry is political: If Ms. Evenwel prevails, legislative districts will have to be reworked in Texas, and presumably in much of the U.S. too. The next legal challenge would be to Congressional districts, which could mean a re-allocation of seats in the House of Representatives. States like Florida, California, New York, Arizona and Texas, with large illegal populations, could lose House seats.

But then that’s democracy—and the Constitution. The Supreme Court shouldn’t fail to apply its bedrock principles because it might disrupt current officeholders. The issue is whether the Justices are going to apply their precedents to new circumstances, or are they going to implicitly overturn Reynolds because it’s too politically inconvenient?

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