Supreme Court should agree that everyone deserves representation

Today, the Supreme Court will hear oral argument in one of the most important voting rights cases in years, Evenwel v. Abbott.  The Evenwel plaintiffs are suing the state of Texas over its state Senate districts, arguing for a radical change in the way that state legislative districts have been drawn throughout the country for decades. 

Over 50 years ago, the Supreme Court held in Reynolds v. Sims that election districts must be roughly equal in size.  At the heart of the Evenwel case is a follow-up question: what does “equal” mean?   May states draw districts to have equal numbers of people, so that everyone is represented equally in the political process?  This is the manner in which virtually all states and municipalities have drawn districts since Reynolds.  Or is this long-standing and near-universal practice actually prohibited by the Constitution, which, according to the Evenwel plaintiffs, requires instead that districts have equal numbers of voters, so that the relative weight of each person’s ballot is roughly equal?  The plaintiffs’ view is, in essence, that the Constitution prohibits the counting of all people besides voters – including children, non-citizens, and others unable to vote – when we draw legislative districts. 

{mosads}But as the American Civil Liberties Union argued in our brief to the Supreme Court, the constitutional rule here is clear: states are not prohibited from counting everyone when apportioning representation in our democracy.  In fact, counting everyone is the practice that is most consistent with the republican ideals embodied in the Constitution.  James Madison wrote in the Federalist Papers that a republican system of government “derives all its powers directly or indirectly from the great body of the people.”  This republican principle of universal representation undergirds American democracy.  Thus, Article I of the Constitution requires that representation in the House of Representatives be apportioned among the states on the basis of total population, and that all people be represented at the national level in Congress, regardless of age or voting status.  The Evenwel plaintiffs’ argument – that the same Constitution requires that some people be excludedwhen apportioning legislative representation within states – strains credulity.  

Perhaps the greatest danger in this case stems not from the plaintiffs’ position but from Texas’s, which is that states and municipalities should have discretion whether to include or to ignore non-voters when drawing districts.  If the Court adopts that view, it would give a greenlight to exclude whole categories of our population from representation in our government. 

That would be a mistake.  Many people cannot or (unfortunately) do not vote.  But in our republican system of government, our legislators represent all of us.  Permitting states to strip non-voters of representation would mean that areas with larger numbers of children and other non-voters could lose influence and, ultimately, could lose out on resources like funding for schools and other government programs upon which everyone in the community depends.

The plaintiffs in this case have tried to discredit our position by citing other cases where the ACLU has argued that incarcerated individuals should not be counted in their places of confinement for redistricting purposes.  But this is a red herring: our position has always been that everyone should be counted, and that when it comes to incarcerated people, the issue is not whether they should be counted, but where: in their home communities where they remain legally domiciled, rather than in places where they have no connections to the surrounding community.    

Counting all people when divvying up our elections districts – which are the essential building blocks of our democracy – is not prohibited by the Constitution.  It’s been the standard for decades, and is consistent with our highest ideals.  There is no reason, legal or otherwise, to change that standard now.  Our governments must continue to represent everyone in our communities, so that we remain true to the constitutional principle of equality for all.

Ho is director of the Voting Rights Project for the American Civil Liberties Union.