Should Illegal Immigrants Get Representation?

A fascinating brief has been filed in the Texas redistricting case, Perry v. Perez, which is before the U.S. Supreme Court (oral arguments are scheduled for January 9). Texas is contesting the remedial maps that were drawn up by a three-judge court in San Antonio without any finding that the legislative maps violated the law. The Project on Fair Representation has filed an amicus brief on behalf of Texas resident Edward Chen, arguing that all of the new legislative maps in Texas, whether drawn by the legislature or the lower federal court, violate the “one man, one vote” principle:

Neither the district court nor the parties have alerted the Court to an important question regarding the constitutionality of the Texas House and Senate interim maps: whether they violate the Fourteenth Amendment’s one-person, one-vote principle by using total population instead of citizen voting age population (“CVAP”) to equalize voting districts.

The Supreme Court had never decided this issue and declined to take up the question of whether including non-citizens (particularly illegals) violates equal-protection requirements in an earlier case, Chen v. City of Houston.

Due to the low citizenship rate of Hispanics in Texas, using total population to draw legislative districts makes a dramatic difference. According to the amicus brief, the district court’s Texas House map has a 74.89 percent CVAP deviation between the largest and smallest districts. The plan drawn by the state has an almost identical deviation. The CVAP deviations are similarly large in the proposed Texas Senate plans.

Texas has approximately 15.1 million citizens of voting age. With 150 House districts in the state legislature, the ideal CVAP for a district is approximately 100,100 people. Yet under the court-ordered map, one of the House districts has only 56,790 citizens of voting age, while another district has a CVAP of 132,415. There are, therefore, 2.33 citizens of voting age in the second district for every citizen of voting age in the first district. This makes for quite a difference in representation.

Chen suggests that the best solution to this unequal representation would be for the Supremes to remand the matter to the lower court. That way, the Texas House and Senate voting districts can be redrawn using CVAP, or resolution of this important constitutional issue can be deferred while interim plans are drawn until Chen can bring a one-person-one-vote challenge against the final maps.

While exact population equality is not required in state legislative districts, Chen and the Project on Fair Representation argue quite persuasively that such massive population deviations are per se unconstitutional for both court-imposed and legislatively enacted redistricting maps. According to their brief, districts with a “high concentration of persons ineligible to vote” (including those illegally in the United States) dilute the “votes of electors.”

The Equal Protection Clause, as it has been interpreted by the Supreme Court in Hadley v. Junior College Dist. of Metropolitan Kansas City, Mo. (1970) “requires that each qualified voter must be given an equal opportunity to participate in” an election. This means that “when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.”

Whether the Supreme Court takes up this argument in the Texas case remains to be seen. But the amicus brief highlighting this issue has been filed at the same time that the State of Louisiana has a claim pending in the Supreme Court that concerns the distortion that illegal aliens cause in our representation in Congress.

Louisiana filed a motion in November asking for permission to file a complaint against the Commerce Department in an unusual case where the Supreme Court potentially has direct jurisdiction. The state claims that it has been denied a congressional seat because illegal aliens were included in Census totals when seats in the House of Representatives were reapportioned, violating the Constitution. The Supreme Court has not yet acted on the motion.

Hans A. von Spakovsky — Heritage Foundation – As a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Center for Legal and Judicial Studies, Hans von Spakovsky concentrates on voting, ...

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