A priest, a rabbi and a minister walk into a bar. They each live in a different state Senate district with 100,000 people in each district. There are 80,000 voters in the priest’s district, 50,000 in the rabbi’s district and 20,000 in the minister’s district.
This is not the beginning of a joke, but rather the basis of one of the most important election law cases to hit the U.S. Supreme Court in years.
If two candidates run for state Senate in each district, the priest will have to convince 40,001 of his friends to vote for his preferred candidate. The rabbi, by contrast, will only have to sway 25,001 voters. And the minister has the easiest task; he must only persuade 10,001 voters in order for his preferred candidate to win the election. Put another way, in the priest’s district it takes many more voters to elect the candidate of his choice.
The priest will argue that his vote is worth less than the votes of the rabbi and the minister, and that this violates the long-established principle of one person, one vote. This principle dictates that every person’s vote must be weighted equally, but the question is – how do we ensure that such equality is achieved?
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The legal basis of the priest’s complaint is that under the Equal Protection Clause, states violate the principle of one person, one vote when they draw state district lines based on total population, not the total number of voters. Most lawmakers and lawyers believed the high court settled the question in the 1960s when it found that states could use either measure. Indeed, there is nothing in the text of the Constitution that dictates a contrary result.
If the high court rules that states are required to draw district lines based on the number of voters, not the number of people, it would have significant implications for who gains and loses political power.
The lawyers may not talk about rabbis, priests and ministers when they argue the case of Evenwel v. Abbott in the nation’s highest court Tuesday, but they will tackle the contours of the principle of one person, one vote and the meaning of representation. Should elected officials represent all people living within their district, or only those who can vote for them? A quick reminder, the president represents everyone who lives in America, not just those who can or did vote for him.
But Evenwel does not merely raise an academic question about the meaning of representation; it is a case about which political party can gain the upper hand in states throughout the nation.
If the high court rules that states are required to draw district lines based on the number of voters, not the number of people, it would have significant implications for who gains and loses political power. People who generally cannot vote include children, certain convicted felons and noncitizens.
The priest, who lives in a district where 8 out of 10 people living in the district are voters, is likely to live in a rural district, with few noncitizens and a comparatively high percentage of Republican voters. By contrast the minister, who lives in a district where 2 out of 10 people living in the district are voters, is likely to live in an urban district with many citizens and a comparatively high percentage of Democratic voters.
Currently states draw district lines based on total population, not total voters. I’ve glossed over distinctions between actual voters and eligible voters, but the fact remains that if the arguments by the plaintiffs carry the day, there will be more Republican districts and power will shift, rather dramatically in many cases, toward rural and Republican voters.
If the plaintiffs win, Republicans win.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and president of the Los Angeles Ethics Commission. She blogs at PoLawTics.lls.edu. Follow her on Twitter @LevinsonJessica.