One of the problems for even those well-versed in federal voting-rights laws is the complex and often confusing nature of so many of the court decisions in this area. I don’t want to bore the readers of the Corner by getting into an extended debate with Abigail Thernstrom over the more obscure areas of this law, but I did want to reply to her response to my prior posting about Irving, Texas. Before beginning, I should note that she is a good friend and has written probably the best books in existence on the history of the Voting Rights Act and its effects on our culture.
I made the point that Irving, Texas, has been sued because, by using total population numbers, it has drawn uneven districts for its city council elections that have widely differing numbers of actual citizens. This is because 60 percent of the Hispanics in one of the districts are not U.S. citizens. I think this is a violation of the one man, one vote principle, because it dilutes the vote of Irving citizens who live in other districts of the city. Abigail correctly points out that under the 1964 decision in Reynolds v. Sims, the Equal Protection Doctrine requires equal representation for equal numbers of people without regard to race, sex, economic status, or place of residence within a state. She concludes that the issue is thus settled with regard to aliens and all other types of ineligible voters based on an appeals court ruling in a later case.
But the Supreme Court in Reynolds specifically said that “weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable” (emphasis added). As Justice Thomas pointed out in his dissent from a refusal to grant certiorari in Chen v. Houston (2001), another Texas case, the Supreme Court itself has “never determined the relevant ‘population’ that States and localities must equally distribute among their districts.” In fact, the Chen case involved claims that the City of Houston had systematically undersized certain districts (just like in Irving) “by roughly equalizing district populations without regard to the citizen voting age population.” The effect of this undersizing was “to dilute the value of votes in districts with larger total populations and citizen voting age populations.” Judge Kozinski of the Ninth Circuit Court of Appeals also pointed out in Garza v. County of Los Angeles (1990) that giving different voting power to voters in different parts of the same county because of the citizen vs. noncitizen problem seems to violate the principles set out in the Reynolds case.
I don’t think the Supreme Court has dealt squarely with this issue, despite the language in Reynolds v. Sims cited by Abigail. And I think the Irving case would be a good opportunity, as Justice Thomas said in Chen, for the Supreme Court to “address this question” because the Court has “an obligation to explain to States and localities what [the one-person, one-vote principle] actually means.”
All of the people who are ineligible to vote that Abigail mentions in her post, such as children and felons, are still United States citizens who are entitled to representation. But aliens, particularly illegal aliens, are an entirely different class of individuals who are not entitled to dilute the voting strength of actual citizens who are making electoral decisions about their representatives in our democratic system. As Judge Kozinski said in the Garza case, what is at issue is “electoral equality” and since “one person one vote protects a right uniquely held by citizens, it would be a dilution of that right to allow noncitizens to share therein.”