Supreme Court to Rule Whether it's Kosher to Discount Non-Citizens

Last week the Supreme Court announced it would consider the argument that states shouldn’t count people who are not eligible to vote when they draw legislative districts.

Districts are now supposed to conform to the “one person, one vote” principle, coming as close as possible to having the same number of residents in each. But the Texas appellants in Evenwel v. Abbott prefer “one voter, one vote,” which would reduce the number of legislative seats in areas with sizable non-citizen populations and increase the number of seats elsewhere—i.e., suburban and rural areas that have few immigrants and tend to vote Republican. (It’s not yet clear whether the case would affect the drawing of U.S. congressional districts, which fall under the more explicit rules of the Constitution.) The court will make a decision next year, as the presidential campaign is in full swing.


Democratic presidential candidates will certainly call for the Supreme Court to squash this idea, but it’s a trickier issue for Republicans, and one that illustrates Jeb Bush’s jibe that one must be prepared “to lose the primary to win the general [election] without violating your principles.” Republican primary voters may like the idea of eliminating legislative seats in immigrant-heavy areas; supporting the Texas appellants may not play as well in a general electorate where the GOP already does poorly among non-white voters.

Evenwel v. Abbott may also cement the GOP’s opposition to any kind of immigration reform that includes a path to citizenship for undocumented migrants. Why go to the trouble of eliminating seats in heavily Hispanic areas only to have to put them back when millions of new citizens gain voting rights?

The Texas appellants say “large numbers of non-voters swell the population of certain geographic locations,” writes the Atlantic’s Garrett Epps. Supporting this claim, the Cato Institute filed a brief arguing that under current practice, “a relatively small constituency of eligible Hispanic voters...have their votes ‘over-weighted’ and ‘over-valuated,’ effectively diluting the votes of eligible voters” in districts with few non-citizens.

According to Cato, in the districts where the Texas appellants live, “a [winning] candidate must get almost twice the votes of a candidate in a district with high concentrations of voting-ineligible residents.” Districts with large numbers of residents ineligible to vote thus have “disproportionate power.” (Near one extreme, Democratic U.S. Rep. Xavier Becarra was re-elected in 2014 from California’s 34th district with only 37,389 votes. though congressional districts have an average of 710,767 residents.)

Note that under this reasoning, all residents of districts with large numbers of non-citizens have “disproportionate power,” not just Hispanic ones. The black, white, and Hispanic residents of such a district, citizen and non-citizen alike, could unite to lobby their legislators for more public schools to relieve overcrowding, or improvements to roads that have deteriorated from overuse. They could rally to stop a jail or wastewater treatment plant from being built near their homes, but by Cato’s logic, all of the eligible voters in this district enjoy an unfair political advantage because of a “swollen population.” If the Texas appellants prevail in the Supreme Court, this district would have to be enlarged to include more eligible voters, and a smaller percentage of the new district’s population would be near enough to the wastewater treatment plant to be bothered by it.

The idea is that non-citizens, though they are subject to taxes like anyone else, are not entitled to representation in state legislatures. Perhaps those not eligible to vote could also be charged admission to state houses, and to be billed, directory assistance–style, for any queries they make to state legislators. Schoolchildren not old enough to cast ballots could be fined heavily for taking up legislators’ time with proposals for official state cookies and raptors. This could be quite a revenue raiser for legislators who prefer not to tax the voters who put them in office.

The Texas case also underscores the tension between the executive-branch and legislative-branch Republicans on the issue of immigration. Most successful Republican candidates for state legislative seats are in districts with relatively few immigrants and non-white voters, a condition that would only become stronger if the Supreme Court allows states to discount non-voters in drawing district lines. But Republican presidential nominees have a much better chance of winning if they can get a respectable number of Hispanic and Asian voters; they still wouldn’t carry heavily urban districts, but they could prevail statewide in places like Florida, Michigan, Pennsylvania, and Virginia. This scenario becomes much more difficult if the Republican Party is seen as hostile toward immigration and toward the inclusion of immigrants in civic life.


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