JURIST Guest Columnist Michael T. Morley, assistant professor at Barry University School of Law, discusses the recent Supreme Court decision regarding voting districts…

The Supreme Court’s recent ruling in Evenwel v. Abbott [PDF] lies at the potentially explosive intersection of voting rights and illegal immigration. In a virtually inevitable yet surprisingly weak opinion, the Court affirmed the constitutionality of the procedure that states presently use for drawing legislative districts, in which they attempt to equalize each district’s total population. The Court left open the question, however, of whether states may exclude non-voters in general, or undocumented immigrants in particular, from the population count when drawing districts and apportioning state representatives.

The Court was unlikely to invalidate currently accepted redistricting standards due to practicality concerns, the magnitude of the political consequences, and the absence of any real constituency or public pressure for changing them. Other lines of supreme Court authority, however, strongly suggest that states have constitutional discretion to decide for themselves whether to include undocumented immigrants in the population count when allotting state representatives. A state is required neither to recognize undocumented immigrants as part of its political community, nor reward regions that welcome large populations of undocumented immigrants with “extra” political power.

Evenwel‘s Background

Every state is divided into legislative districts; each district elects one or more members to the state legislature. For over a half-century, the supreme Court has held that a state’s legislative districts must contain roughly equal numbers of people—this is the famous “one person, one vote” principle. In Reynolds v. Sims, for example, the Court struck down a legislative apportionment scheme in which the state’s smallest district was assigned one representative for its 13,462 residents, while the largest district received one representative for every 90,694 residents. Such disparities, the Court concluded, impermissibly gave residents of less populous districts a proportionally greater voice in determining the identity of their representatives than residents of more highly populated districts.

The plaintiffs in Evenwel contended that allocating representatives based on pure population, rather than the number of eligible voters in each district, can result in comparable unfairness. Assume that District A and District B each have 100,000 residents and are each entitled to a single representative in the legislature. If 80,000 of District A’s residents and only 50,000 of District B’s residents are eligible voters, then each voter in District B has a proportionally greater say in determining the identity of his or her representative than District A’s voters. Although the districts’ overall populations are equal, each vote from District B reflects 1/50,000 of the power to determine that district’s representative, while each vote from District A constitutes only 1/80,000 of that power. Such disparities, the plaintiffs argued, are inconsistent with the “one person, one vote” imperative underlying cases such as Reynolds.

Deconstructing Evenwel

The Evenwel Court rejected that argument in an opinion [PDF] with which each of the Justices either joined or concurred. The six-Justice majority held, “[B]ased on constitutional history, [the] Court’s decisions, and longstanding practice . . . a State may draw its legislative districts based on total population.” The Court began by noting that representatives in Congress are allocated among states based on total population, rather than eligible voters or some other metric. “It cannot be,” the Court opined, “that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis.” The Court disregarded the fact that it regularly distinguishes between the national government and state governments when applying Equal Protection principles to disputes over representation. In Reynolds, for example, the Court held that states may not assign an equal number of state senators to counties with substantially different populations, even though the Constitution assigns an equal number of US Senators to each state despite substantial population disparities among them.

The Court also pointed out that many of its precedents speak about the need for “equality of representation” rather than “voter equality.” But the Court selectively ignored numerous other rulings in which it emphasized the importance of ensuring that the relative weight of all votes for legislators is the same, regardless of the district in which a voter lives. Thus, the Court’s discussions of the Constitution’s text, which does not address state legislative apportionment, and its own precedents, which offer conflicting mandates at best, do little to support its holding.

The Court’s third main explanation, concerning “settled practice,” is the true foundation for its ruling. It explained, “Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.” The plaintiffs “have shown no reason for this Court to disturb this longstanding use of total population.” The Court conveniently overlooked the fact, however, that when it crafted its “one person, one vote” jurisprudence, those cases were inconsistent with the then-settled practices of allotting state representatives by counties and crafting districts with dramatically differing populations. Reynolds and its progeny are based on principle, not practice. The Court’s selective reliance on practice in Evenwel is therefore puzzling.

Evenwel was inevitable because the Court was extremely unlikely to invalidate the procedure that every state in the nation uses to allocate state representatives. It would have been unseemly, if not outright improper, for the Court to conclude that the procedure is unconstitutional, yet decline to grant relief because it is so widely accepted, or based on the inconvenience or disruption of the political system that changing the process would cause. The Court therefore chose instead to treat state practice as influencing the Constitution’s meaning, creating a “gloss” on the proper interpretation of the Equal Protection Clause. In the Court’s view, the states’ practice of allotting state representatives based on total population liquidates the meaning of the Equal Protection Clause. The practice creates a type of self-fulfilling prophecy; by its very existence, the practice is treated as fleshing out and satisfying the Clause’s otherwise vague mandate of equality. Though the Court frequently relies on such reasoning, particularly in cases dealing with separation of powers or the structure of government, its normative power is debatable.

Evenwel‘s Unanswered Question

While Evenwel approves the use of total population as a basis for allotting state representatives, it does not address the closely related issue of whether states have discretion to choose to exclude non-voters in general, or undocumented immigrants in particular, from that population count. Evenwel explains that states have an interest in “ensuring that each representative is subject to requests and suggestions from the same number of constituents,” emphasizing that constituents often need “help navigating public-benefits bureaucracies.” While this reasoning might support counting children and lawful permanent residents when allocating representatives, it does not necessarily apply with the same force to undocumented immigrants. States may validly conclude that members of the legislature should be primarily responsive to the needs of their constituents, the state’s citizens and other lawful members of the state’s political community. Moreover, rewarding areas that welcome, encourage, and protect undocumented immigrants with additional political power creates bizarre incentives for municipalities and counties to flout federal immigration law.

The Supreme Court has repeatedly held that non-citizens may be excluded from activities that are “intimately related to the processes of democratic self-government,” such as serving as a juror or working as a police officer. “[A] State’s historical power to exclude aliens from participation in its democratic political institutions,” the Court has explained, “[is] part of the sovereign’s obligation to preserve the basic conception of a political community.” This recognized constitutional prerogative to exclude non-citizens from a state’s processes of democratic self-governance implies, at a minimum, the authority to refuse to count such individuals when allocating seats in the state legislature. Thus, while Evenwel holds that states cannot be compelled to exclude undocumented immigrants from the basis of representation when drawing state legislative districts, the Equal Protection Clause likely leaves them discretion to do so.

States should exercise this authority by redrawing legislative districts to equalize the number of US citizens and lawful permanent residents they contain, rather than total population. Voters in areas with large numbers of undocumented immigrants should not have their voices in the political process effectively amplified simply due to the federal government’s persistent refusal to enforce immigration law. Taking undocumented immigrants into account when allotting state representatives only magnifies the consequences of the federal government’s refusal to secure the nation’s borders.

The plaintiffs in Evenwel sought a quick victory by asking the Court, as a matter of constitutional law, to unilaterally change the rules for drawing state legislative districts across the nation. Evenwel leaves them free to pursue the change they seek but, if they do, it must be through a series of hard-fought, state-by-state political battles.

Michael T. Morley is an Assistant Professor of Law at Barry University School of Law. He teaches Contracts, Remedies, and Election Law. His work has been quoted by the Supreme Court and he was counsel of record in the Court for Shaun McCutcheon in the landmark First Amendment case McCutcheon v. FEC.

Suggested citation: Michael T. Morley, The Unanswered Questions in Evenwel: Voters, Undocumented Immigrants and the American Political Community, JURIST – Forum, May 19, 2016, http://jurist.org/forum/2016/05/michael-morley-unanswered-evenwel.php.