For all the hand-wringing about the evenly split U.S. Supreme Court, the justices on Monday made clear they have no intention of messing with a basic democratic tenet – that people matter whether they’re eligible to vote or not, whether they’re citizens or not.
For the time being, that is.
For decades, states have apportioned legislative districts more or less equally based on population, not voters or eligible voters. That one-person, one-vote notion is especially important in California and other states where there are large numbers of residents who are not citizens and are younger than 18.
But by an 8-0 margin, with one seat left vacant by Antonin Scalia’s death, the justices upheld the common method of using population to draw legislative and local districts. They rejected a suit brought by two rural Texas voters, who claimed their votes were diluted because Texas included noncitizens in their districts.
If the conservatives had won, democracy as it has been practiced for decades in the United States would have suffered. Voters in urban districts, the core of Democratic support, would have been spread into suburban and rural districts, leaving noncitizen immigrants with little representation, and likely helping Republicans win more legislative seats.
Changing the system also poses practical concerns, among them that the U.S. Census, on which reapportionment is based, does not count voting-age citizens.
“Nor is it possible to accurately obtain a count of voting age citizens by inquiring about citizenship status as part of the Census count,” former Census directors said in a friend of the court brief.
The case would not have applied to congressional districts, at least not directly. In most states, however, legislatures draw congressional district boundary lines. So long as Republicans control legislatures in most states as they currently do, Republicans likely will retain their majorities in Congress.
The decision in Evenwel v. Abbott, authored by Justice Ruth Bader Ginsburg, was narrow. The justices put off the more basic question of whether states have the power to “draw districts to equalize voter-eligible population rather than total population.”
One justice, Clarence Thomas, wrote in a concurring opinion that nothing bars states from apportioning districts based on voters, instead of population. Were Scalia alive, the five Republican-appointed justices might have formed a majority to rule in Texas’ favor.
That is yet another reason why Scalia’s replacement matters – whether it’s President Barack Obama’s selection, Merrick Garland, or the next president’s nominee – and why the 2016 election is pivotal.