Looking ahead at the Supreme Court’s docket next term, we see one case described as the biggest voting-law case in 60 years that looks as if it could fundamentally transform the political layout of the country. The plaintiffs in Evenwel v. Abbott are challenging the traditional way of drawing electoral districts, which they argue has been unconstitutionally cutting off the political power of rural and suburban voters for decades. Although their complaint involves only their home state of Texas, it could have ramifications for the whole country. (Scotusblog’s just-launched online symposium discusses the implications of the case.)
The current system of district-drawing in the United States is anti-democratic, say Sue Evenwel and Ed Pfenninger, the Texas residents who’ve brought the suit. Because Texas, like most states, draws its districts around residents and not voters, more districts get created in urban areas where non-citizens tend to cluster. The effect is that urban districts, which are generally more liberal, get more representative seats than they deserve and the votes of citizens in those districts have more “weight” than votes in districts elsewhere.
As the Immigration Reform Law Institute shows in its friend-of-the-court brief supporting the plaintiffs, a look at the census figures in Texas’s senate districts seems to confirm this. The Republican-controlled first senate district, where Sue Evenwel lives, has a citizen voting-age population (CVAP) of 568,780. By contrast, districts 6 and 27, both largely Hispanic and liberal, have respective CVAPs of only 372,420 and 376,495. This means that the people who actually vote in the latter districts are getting the same amount of representation as the voters of District 1 even though their numbers are far fewer. This also means there’s less competition in these Hispanic- and liberal-dominated districts. In the 2012 state-senate election in Evenwel’s district, 294,353 votes were cast. But in districts 6 and 27, only 245,032 voters combined showed up. As the Cato Institute summarizes in its friend-of-the-court brief supporting the plaintiffs, “a relatively small constituency of eligible Hispanic voters in other districts have their votes ‘over-weighted’ and ‘over-valuated,’ effectively diluting the votes of eligible voters in districts like 1 and 4.”
In the 1964 landmark decision in Reynolds v. Sims, the Supreme Court articulated what has become known as the “one person, one vote” principle that is supposed to ensure electoral equality between legislative districts by prohibiting them from varying substantially in population number. The Constitution’s Equal Protection Clause demands, said the Court, that one person’s vote in one district should have the same weight as another person’s vote elsewhere. The Court, however, did not discuss what the Evenwel plaintiffs are now asking for: that districts be drawn around even populations of voters so as to better ensure the one-person, one-vote principle. Why didn’t the Court address it then? At that time, it wasn’t an issue. What makes it an issue now? Unlawful immigration and ungoverned legal immigration.
Writing in the Texas Review of Law and Politics, Kent Krabill and Jeremy Fielding summed up the reasons the Reynolds Court didn’t address voter-population disparities:
Under ordinary demographic conditions where noncitizen populations are relatively small and spread more or less proportionately throughout the electoral area, total population is a reliable proxy for voter population. With the dramatic influx of concentrated illegal immigration in the late 1980s and 1990s, however, an increasing number of cities and counties began to face the unusual demographic circumstance where the ordinary correlation between total population and voter population began to break down.
And this “break down” in “ordinary demographic conditions” has been swift. According to the 1960 census, four years before the decision in Reynolds, the national count of immigrants was 9.7 million, or 5 percent of the population. By contrast, the last census in 2010 showed that there were 40 million immigrants in the U.S., or 13 percent of the population, a “historic high” according to the Census Bureau. If such an increase in the immigrant population was distributed evenly among the electoral districts of the 50 states, electoral inequality would probably not be a problem. But according to census experts, 40 percent of all immigrants coming into the country now settle in just five cities: New York, Los Angeles, Chicago, Miami, and Houston. And according to the last census, Houston and Dallas–Fort Worth had some of the highest immigration growth rates in the country.
One would think electoral inequality resulting from different ‘weightings’ being assigned to voters based on where they live would give so-called civil-rights activists a cause for concern.
One would think electoral inequality resulting from different “weightings” being assigned to voters based on where they live would give so-called civil-rights activists a cause for concern. That’s especially true here considering that the effects are race-based, with one group (Texas’s more rural white community) unjustly losing out to another (Texas’s more urban minority communities). Think again.
The Mexican-American Legal Defense and Education Fund (MALDEF), a controversial legal-advocacy group that purports to fight against voter “discrimination,” says that it’s the Evenwel plaintiffs themselves who are doing the real discriminating. The Ford-funded group labels Sue Evenwel and Edward Pfenninger “purveyors of apartheid” for bringing their equal-protection claim. They label the lawsuit as “an attempt to cut back on growing Latino political strength in the state by packing Latinos into a smaller number of districts,” something Evenwel and Pfenninger say is actually happening in their own communities.
This type of point-and-splutter libeling is a common tactic for groups such as MALDEF. Along with others, they frequently bring voter-discrimination and vote-dilution claims against states that seek to draw districts in ways that more fairly represent their residents. Unfortunately, judges commonly fold. The electoral map at issue in Evenwel was actually the product of a judicial re-drawing that followed a suit brought by the League of United Latin American Citizens (another Ford-funded group), which called the original map racially discriminatory. Ironically, the Evenwel plaintiffs are saying it still is.
Given the changing demographic make-up of Texas and other parts of the country, what will happen when this “tyranny of the minority” becomes “tyranny of the majority”? We may have some indication from a voter-discrimination suit recently filed against Dallas County by whites. The first of its kind, Harding v. County of Dallas, Texas alleges that county officials are diluting the white vote by packing white voters into only one of the county’s four commissioner districts, even though whites make up almost half the electorate. Will such suits become commonplace in states across the country? If current mass-immigration rates continue, maybe so.
— Ian Smith is an attorney who works for the Immigration Reform Law Institute.