The end of “one person, one vote”?

U.S. Supreme Court will decide if representation should reflect the number of eligible voters or overall population

Photo by Vox Efx (Flickr)

The Supreme Court of the United States has agreed to hear a case that could potentially have a profound effect on one of the fundamental tenets of our democracy: “one person, one vote.”  In Evenwel v. Abbott, the Court will decide whether the size of state legislatures should be based on the overall population or only on the number of eligible voters.  The two Texas voters who brought the case contend that their individual districts have more eligible voters than other more populated urban districts.  In turn, they argue that their personal vote is weakened when representation is determined by overall population, and this violates one person, one vote.

The origins of “one person, one vote”: Baker v. Carr and Reynolds v. Sims

In the 1960s, the U.S. Supreme Court opened the door to judicial review of the redistricting process and laid the groundwork for the development of the “one person, one vote” principle.  In Baker v. Carr, Charles Baker, a resident of an urban neighborhood in Tennessee, filed a suit concerning reapportionment based on the Fourteenth Amendment’s Equal Protection Clause.  Baker argued that because of population changes in the state, specifically migration to cities, his vote in an urban area had much less weight than that of a voter in a rural district, thus constituting a “debasement of his vote.”

A major question before the U.S. Supreme Court in Baker was the issue of the political question doctrine and whether matters involving reapportionment are justiciable.  The political question doctrine centers on the idea that federal courts should not hear cases that deal directly with issues that the Constitution makes the sole responsibility of other branches of government.  The Court found that because the claims were not derivative of the Guaranty Clause of Article IV, but rather the 14th Amendment, that simply the implication of political rights did not render an issue inappropriate for judicial review.

The Court formulated a six-part test to determine if a case presented a political question.  The most important fact for redistricting purposes was the determination that the voting inequalities presented satisfied these requirements, including the judgment that the courts can provide “discoverable and manageable standards” for granting relief.

The “one person, one vote” principle was formally enunciated in Reynolds v. Sims.  The standard for legislative redistricting requires that each individual has to be weighed equally in legislative apportionment.  The new standard had a dramatic affect on numerous state legislatures that had not redistricted for decades, despite major population shifts.

In the Reynolds decision, the Court decided that states like Alabama, who had bicameral legislatures, had to apportion both houses based on the new standard.  Ultimately, the composition of many state legislatures was forced to change, which had previously overrepresented rural districts and underrepresented urban districts with greater populations.

Who stands to lose representation?

With the Court’s decision to take up the Evenwel case, it is now conceivable that the current standard, which has been utilized for more than 50 years, could be abandoned completely.  Both the federal government and state governments have taken “one person, one vote” to mean drawing roughly equal districts based on Census counts of the entire population.

The use of the total population includes many people who may be barred from voting, such as noncitizens, prisoners, felons, non-citizen immigrants, and children.  There would be a major impact on Hispanic people in the U.S. if only eligible voters were counted towards redistricting.  Many Hispanics are not eligible to vote, either because they are not U.S. citizens or because they are younger than 18.

Partisanship differences between districts with high and low shares of eligible voters also come into focus.  According to the Pew Research Center, Democrats currently represent 19 of the lowest-ranking 20 districts for eligible voters.  On the other side, Republicans represent 16 of the 20 highest-ranking districts.

If the Court rules to change the standard to the number of eligible voters, there could be radically changing districts with few eligible voters.  These districts, that include Hispanic and Democratic-voting populations, would likely see major changes in the make-up of their representation in the legislatures.

Generally, if districts are drawn to exclude nonvoters, political power will shift away from urban areas that contain a lot of young people to rural areas that contain a lot of older people.  Similarly, there will be a shift of power towards areas free of noncitizen immigrants from areas that have a large population of such immigrants.

One person, one vote OR one citizen, one vote?

Basing representation on eligible voter population calls into question who may actually be represented by members of the federal legislature and state legislatures.  Do legislative members represent the entire population, regardless of voter status, or is representation reserved only for those individuals who are eligible to vote?

A significant concern with basing representation on voter eligibility is that it may obscure the obligation of legislators to serve all of the residents in their district, not just those who can cast a vote for them.

Practical challenges

The Census is currently used to determine the total population, which defines legislative districts.  If the Court were to set new standards, this would call for an overhaul of the nation’s statistics and surveys.  In order to narrow the Census numbers to an estimate of eligible voters, several adjustments would have to be made.

The Census survey would have to formulate additional questions that would focus on citizenship.  Such inquiries would have the potential to dissuade many people from completing the survey.

The Supreme Court has previously held that the Constitution requires a full-count Census, meaning it cannot rely on sampling to account for people that may be missed.

Sometime during the Supreme Court’s October term, we will get an answer on who exactly is included in “we the people.”  No matter what the Court decides, the American population will be largely affected for our elections years to come.

 

Hannah Emory, Associate Editor
About Hannah Emory, Associate Editor (15 Articles)
Hannah Emory is a Campbell Law graduate and served as an Associate Editor for the Campbell Law Observer for the 2015-2016 academic year. She is originally from Dunn, North Carolina and graduated from the University of North Carolina at Chapel Hill in 2013 with a Bachelor of Arts in Political Science and History. Following her first year of law school, Hannah interned at the North Carolina Office of the Juvenile Defender.
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