The Supreme Court Tackles How Legislative Districts Should Be Calculated

The Supreme Court heard a case out of Texas last week that, if the plaintiffs are successful, would dramatically change the constitutional landscape of the nation.

The fundamental question before the Court: Who should be counted in creating voting districts? Should districts be based on all residents, as it currently stands, or limited to just eligible voters? This is what Evenwel v. Abbot seeks to address. Evenwel wants the count to be based only on eligible voters.

Those who are not eligible to vote include children, legal immigrants who are not citizens, undocumented immigrants, convicted felons who have been disenfranchised and prisoners.

The distribution of impacted groups is not spread evenly across states. Moreover, with the exception of the prison population, the majority of the populations in question live in urban areas, which tend to vote for the Democratic Party.

At face value, it could seem like a no-brainer to not count undocumented immigrants, children, and prisoners. They don't vote. Why should they be counted?

To do so, as it was argued before the court, increases the voting power of eligible voters in those areas, which invariably benefits Democrats. Rural areas tend to lean Republican, and tend to possess higher percentages of eligible voters.

The court's decision is expected by June. If this case is debated, at least in the court of public opinion, based on partisan sentiments, the constitutional questions, with which the court is charged, can be lost under the abyss of political sound bites.

I don't dismiss the arguments put forth by Evenwel -- far from it. Is it in keeping with the constitutional values of America to have the presence of undocumented immigrants in urban areas, for example, dilute the vote of rural voters?

The problem that lies in the 228-year-old document that provides the basis for our shared public morality (aka the Constitution) is usually more complex in scope than the aforementioned question. It is the perennial tension between what we would like the Constitution to do and how far its elasticity is prepared to reach in order to factor where the nation is in the moment without disregarding the core principles that have sustained us since its inception.

The simplistic questions that Evenwel raises become rather difficult to answer if one is willing to examine them in totality. The Constitution requires total population as the metric for the apportionment of the House, not just eligible voters.

When the Constitution was ratified, there was an implicit understanding that it was a document specifically for white male landowners. The overt understanding, enshrined in the Constitution under Article 1, Section 2, Paragraph 3 reads:

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

Were not slaves ineligible to vote while simultaneously counted as part of the census? The same held true for women, who were consistently counted as part of the census while having their vote denied until ratification of the 19th Amendment in 1920.

But as Justice Elena Kagan asked during oral arguments, the question is why the "Constitution requires something with respect to one apportionment that it prohibits with respect to another." Who benefits when the methodology used creates a potentially greater conundrum in order to address an existing problem?

Legislatures exist to protect voting interests of all those who live in the representative districts, whether they vote or not. Furthermore, there is no practical way to count eligible voters.

Do we want to leave it to the states to figure it out? Are we not asking for additional complications?

The myopic political prospects that proponents of Evenwel seek to blind them to other considerations. I suspect at the root of this court challenge is the political reality of the ever-changing demographics that continues to darken the hue of America.

In some respects the court is being presented with a false dichotomy: Should the total population be represented or just eligible voters?

Historically, such laws, in their myriad shades, have never made America better. Assuming there are five votes on the Court that agree with the lawyers for Evenwel, it's difficult to see how this outcome will fare any different.