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May 27, 2015

Supreme Court to Consider Whether the Constitution Requires 'One Person, One Vote' or 'One Voter, One Vote'

Yesterday, the Supreme Court agreed to resolve a redistricting question that has been simmering for over fifty years: does the equal protection clause require that state voter districts be apportioned according to the number of residents or the number of eligible voters? States have, generally, been allowed to decide for themselves whether to use the total state population or some more restrictive population—say, one that excludes temporary residents and aliens—when drawing districts.

But this question has profound implications for states with large populations of residents who are ineligible to vote like, for example, the state of Texas, where this case originates. Counting residents ineligible to vote for the purposes of apportioning districts tends to give more weight to votes in districts with large numbers of such residents. The argument in this case is that this inequality of voting power violates the equal protection clause. It would be an unusual constitutional standard that allowed votes in some states to be diluted at the whim of the state legislature or (perhaps worse) independent redistricting commissions.

This quickly becomes a political question. Residents not eligible to vote—like aliens and felons in many states—just happen to be concentrated in urban districts, which also tend to be Democratic districts. Shifting voting power from such urban minority districts to rural, generally older white districts will launch a hundred screechy tirades on the internet, but this lawsuit finds support in decades of progressive jurisprudence. The case law implementing the Voting Rights Act has required using population of eligible voters, not population of residents, as the baseline when drawing minority districts. The petitioners in this case want the Supreme Court to find the same principle is required by the equal protection clause.

One thing that the Supreme Court justices will no doubt want to know: how accurate is the states' count of eligible voters? The census gives a pretty good idea of how many residents live in a particular area, but it was not designed to give a precise count of eligible voters. If the high court decides that the equal protection clause requires 'one voter, one vote' districting, how accurate must the count of eligible voters be? Also, this is a state redistricting case, but it is not hard to see how the principle could be extended to congressional redistricting, which would cause some big changes in the House for states like Texas, Florida, New Mexico, Arizona, and (gulp) California.

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posted by Gabriel Malor at 09:30 AM

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