In the federal case, Evenwel v. Abbott, Texas voters challenged their state’s apportionment plan for
the House of Representatives the Texas State Senate. After every decennial census, each state legislature divides their population relatively evenly into districts. The question before the courts is who counts as a “person” for apportionment.
[CORRECTION: The Evenwel v. Abbott case actually challenges apportionment for the Texas State Senate, but should apply to the apportionment of the House of Representatives if the Texas voters prevail.]
The Supreme Court decision in Reynolds v. Sims created the “one person, one vote” rule forbidding states from forming districts with different populations, reasoning that such schemes violate the Equal Protection Clause by diluting the effectiveness of votes cast in high population districts. The Texas voters cite Reynolds to argue that Texas apportionment scheme unconstitutionally dilutes their votes by counting foreign aliens and children who are not eligible to vote as “people” for apportionment purposes.
Let me illustrate this argument with a hypothetical to avoid confusion.
Imagine that a state has a total population of 6 million, 3 million of whom are adult citizens eligible to vote, while 2 million are children and 1 million are foreign aliens who are not eligible to vote.
Now imagine that the state counted the total population – voters and non-voters alike – for apportionment and divided them into six districts of one million apiece. Districts one and two each have 300,000 voters, 200,000 children and 500,000 foreign aliens; while districts three through six have 600,000 voters, 400,000 children and no foreign aliens.
The Texas voters are arguing that such an apportionment system dilutes the votes of districts three through six because their 600,000 votes are electing the same one representative as the 300,000 votes in districts one and two. To remedy this inequity, the Texas voters argue that only adult citizens eligible to vote should be counted for apportionment purposes so each district will have the same number of possible voters.
Yesterday, the Supreme Court accepted the Texas case for review this fall or winter.
SCOTUS takes Evenwel v. Abbott
Like almost everything to do with voting rights, the Supreme Court’s decision will have a serious political impact.
Under the current system of counting both voters and non-voters for apportionment, Hispanic and Asian districts with low numbers of voters and high numbers of foreign aliens tend to vote Democrat, allowing the Democrats to leverage those smaller number of votes into a larger number of seats in the House of Representatives. If the Supreme Court rules in favor of the Texas voters and requires that apportionment be based on eligible voters, well over a dozen house seats would move from Mexican border states and large blue cities to the red interior of the country, theoretically adding to the current GOP House super majority.
Expect a Democrat media firestorm over this case in a few months once the politcial implications of the Texas claim begin to sink in.
UPDATE: If the Supreme Court rules in favor of the Texas voters, Nate Silver’s political stats site 538.com projects:
[A]lthough all 435 U.S. congressional districts have roughly equal total populations, the number of eligible voters and rates of actual participation can vary wildly from place to place.
For example, in Florida’s 11th District, home to the largely white retirement mecca of The Villages, 81 percent of all residents are adult citizens. But in California’s heavily Latino 34th District, anchored by downtown Los Angeles, only 41 percent of all residents are eligible to vote. The variations across districts in terms of actual turnout can be even more eye-popping. According to results compiled by Polidata for the Cook Political Report, Montana’s lone House district cast 483,932 votes for president in 2012, more than four times the tally in Texas’s 29th District, 114,901.
A move toward counting only eligible voters, as logistically difficult as it may be, would drastically shift political power away from the urban environs with minorities and noncitizens, and toward whiter areas with larger native-born populations. That’s bad news for Democrats: Of the 50 congressional districts with the lowest shares of eligible voters, 41 are occupied by Democrats (nearly all are Latino-majority seats). Meanwhile, of the 50 districts with the highest shares of eligible voters, 38 are represented by the GOP…
Next, the partisan implications: Which party would gain or lose those seats? To arrive at an estimate, we calculated the percentage of eligible voters currently living in districts represented by Democrats and Republicans in each state and applied that percentage to the “new” seat total. For example, Republicans currently represent 25 of Texas’s 36 districts (69 percent), but an even higher share (73 percent) of Texas’s eligible voters. If Texas lost four seats and only adult citizens were counted, the GOP seat edge might expand to 24-8.
If we repeat this calculation across all states, a redistribution of representation based on eligible voters could result in a net gain of roughly eight seats for House Republicans, who are already sitting on a historically large majority of 245 seats.