Is the Supreme Court Plotting to Scramble Elections?

The nation was in the grip of fear from the killings in Colorado Springs and San Bernardino, so there was little notice in early December of the hearing by the Supreme Court that could result in a blockbuster decision. In a case brought by two Texans, the justices were asked, shouldn't election districts be sized according to the number of eligible voters each contains rather than its total population? They're called "election districts" so what is the relevance of counting people — children, for example — who can't vote. The plaintiffs claim that the total population method gives disproportionate strength to urban areas?

The media hurried on to other matters without much of an explanation, but it deserves to be understood, because if the Supreme Court agrees with the two, named Sue Evenwel and Edward Pfenninger, the changeover will be hugely disruptive. Here's why:

The census of every ten years counts every person regardless of immigration status and even makes a special effort to find those here illegally. Using the census, all the nation's 435 electoral districts are supposed to be drawn so as to contain, as close as feasible, the same number of people as all the rest. [2]

Our cities are presumed to contain a greater percentage of ineligible voters than suburbs and rural areas — more non-citizen immigrants, legal and illegal, particularly Latinos, who are disproportionately not citizens; more felons out of prison but who are denied the vote, depending on the state; and more children even because of differing ethnic birthrates. [1]

If everyone is counted in the process of divvying up districts, that means urban areas are awarded more districts than they would if those ineligible to vote were not counted. As there are only 435 to go around, rural areas wind up with less districts.

The case has arisen not because the two plaintiffs are simply concerned citizens who believe they have found a flaw in our democracy. They are backed by the Project on Fair Representation, a conservative group that has been active in cases concerning race and voting. Their interest is to shift voting power from urban areas which tend to vote Democratic, to outlying and rural areas where voters are Republican.

It came as a surprise to find that the requirement for electoral districts to have equal populations was not decreed until just 50 years ago in the Supreme Court case Reynolds v. Sims in 1964. Before then, huge disparities in resident counts between districts was the norm, usually greatly favoring country over city as cities grew. Examples presented in that case were Connecticut, where one House district had 191 people, another 81,000; New Hampshire, where each of two districts had a representative in the lower house, but one district had three people and the other 3,244. [5]

Reynolds v. Sims is where the equal protection amendment became the basis for the Court settling on the "one person, one vote" mantra originated, and presumably why the Texans are steering the justices back to that amendment. A Wall Street Journal editorial provides another case, Lockport v. Citizens for Community Action, in which 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 Journal urges the justices of today to "have the courage of their convictions" of their counterparts back then, "or are they going to implicitly overturn Reynolds because it’s too politically inconvenient?". [3]

Inconvenient puts it mildly. If the Court dutifully follows the Journal, think of the chaos. If the changeover is mandated by the Court any sooner than the 2020 census, the counts for all electoral districts will need to be redone, even for rural districts where the ineligible count might be slight, because the population count for the state will change, as will the equalzing count for all districts.

But the census does not count eligible voters. The closest it comes is to estimate the illegal immigrant population. So where will the needed counts come from? The Journal editorial is content with elections based on estimates, and the plaintiffs have proposed sampling only 2.5% of American households and extrapolating from there to come up with eligible-voter counts. The New York Times says such guesswork "would be impossible to put in place with anything like the confidence provided by the census".[4]

But so as to examine the fallout, let's say recounts are somehow doable. With those ineligible to vote removed, cities counts would shrink and they would qualify for less districts. If that seems an exaggerated assumption, you can bet the litigants have done the math to make sure of that else they would not have brought the suit.

States heavy with big cities — such as California and New York — and illegals — such as Florida, Arizona and Texas — could conceivably lose House seats, and this being a zero-sum game with a fixed number of 435 seats nationwide, states with more home-grown populations and less immigrants, which are states that tend to vote Republican, would gain those seats. That is the objective of the suit.

Evenwel contends her vote is diluted by a third compared to a voter in the city of Brownsville, Texas, and that the duo are therefore deprived of equal protection under the 14th Amendment. [3] It's a peculiar argument because the Brownsville citizen's vote does not have any extra power. The better argument is that Brownsville is awarded too many districts because its ineligible voters are counted, but presumably the two plaintiffs had to somehow make a case that they've personally been damaged and have not been equally protected.

But the very next clause of the 14th Amendment reads:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.

Justice Elena Kagan wondered how the Constitution could require a population criterion in one clause and prohibit it in another. The " whole number of persons in each State " stipulation would seem to obliterate the tenuous claim of unequal protection.

So the question becomes, why did the justices vote to take on a case where its argument is so clearly refuted in the Constitution? Are the right-leaning justices simply attracted to the idea and are inclined to scramble election laws to their liking?

Justice Stephen Breyer, as paraphrased by Marcia Coyle of The National Law Journal, observed that the issue

"raises the fundamental question of, what kind of democracy do we want? Do we want a democracy in which everyone who is here is represented, or do we want a democracy in which only those who have the right to participate in the democratic process through the vote are represented?"