WASHINGTON — With the exception of the Senate, where voters from states with small populations have vastly more power than those from, say, California or Texas, the rest of the American political system is committed to the bedrock principle of “one person one vote.”
Or is it?
Whatever else may be said about the odd shapes of voting districts around the nation, they do tend to contain, often with exquisite mathematical precision, the same number of people. But not all of those people are eligible to vote.
The distinction matters in places like Irving, Tex., where the City Council’s six districts have almost exactly the same number of people. But one of them, heavily Hispanic, has only about half the number of people actually entitled to vote. The political power of voters in that district is therefore amplified. Think of it as “one person two votes.”
Voters from the other districts sued to challenge this state of affairs, and the Supreme Court is scheduled to decide next week whether to hear their case. Surprisingly, the court has never resolved the question of whether “one person one vote” means that voting districts should contain the same number of people or, instead, the same number of voters.
“That this issue is still unresolved, 50 years after the court announced the one-vote-one-person doctrine, is remarkable,” said Richard H. Pildes, a law professor at New York University. “That it is coming to a head now is another constitutional manifestation — this time, in the voting context — of the dramatic rise in the noncitizen population in states along the border, such as Texas and Arizona.”
The new case, Lepak v. City of Irving, No. 12-777, is the brainchild of the Project on Fair Representation, the same small conservative advocacy group that persuaded the justices to hear challenges this term to affirmative action and to a central part of the Voting Rights Act.
Almost all state and local government draw districts based on total population. Those districts include all sorts of people not eligible to vote, including immigrants who are here legally but are not citizens, illegal immigrants, children and prisoners.
Were such people evenly distributed around the nation, the difference between counting all people or only counting eligible voters would be of no moment. But the new challenge contends that recent demographic developments require the Supreme Court to act.
“Changing immigration patterns and federal policies have converted a problem that once impacted only a few jurisdictions into a national concern,” the challengers’ brief says.
A brief from the Mexican American Legal Defense and Educational Fund responded that there is nothing new about “concentrations of nonvoters in particular areas.” Blacks and women were long excluded from the franchise, minors still are and “the distribution of immigrants throughout American history has never been uniform,” the group’s brief said. Now, though, it went on, “the obsession seems to be that undocumented immigrants are of dramatically different import.”
Were the challengers in the new case to succeed, the practical consequences would be enormous, Joseph R. Fishkin, a law professor at the University of Texas at Austin wrote last year in The Yale Law Journal.
It would, he said, “shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.”
Federal appeals courts have uniformly ruled that counting everyone is permissible, and one court has indicated that it is required.
In the process, though, several judges have acknowledged that the Supreme Court’s decisions in this area have been murky and provide support for both approaches. The federal appeals court in New Orleans said the issue “presents a close question,” partly because the Supreme Court had been “somewhat evasive in regard to which population must be equalized.”
Judge Alex Kozinski, in a partial dissent from a decision of the federal appeals court in San Francisco, said there were respectable arguments on both sides.
On one theory, he said, counting everyone ensures “representational equality,” with elected officials tending to the interests of the same number of people, whether they are voters or not.
Counting only eligible voters, on the other hand, he said, vindicates the principle that voters “hold the ultimate political power in our democracy.” He concluded that the Supreme Court’s decisions generally supported the second view.
Even if counting only adult citizens is the correct approach, there are practical obstacles. “A constitutional rule requiring equal numbers of citizens would necessitate a different kind of census than the one currently conducted,” Nathaniel Persily, a law professor at Columbia, wrote in 2011 in the Cardozo Law Review.
For now, he said, “the only relevant data available from the census gives ballpark figures, at best, and misleading and confusing estimates at worst.”
In 2001, the Supreme Court turned down an opportunity to decide who counts in a democracy, in another case from Texas.
Justice Clarence Thomas objected. “We have never determined the relevant ‘population’ that states and localities must equally distribute among their districts,” he wrote.
“The one-person-one-vote principle may, in the end, be of little consequence if we decide that each jurisdiction can choose its own measure of population,” Justice Thomas added. “But as long as we sustain the one-person-one-vote principle, we have an obligation to explain to states and localities what it actually means.”