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Supreme Court rules in redistricting case: Illegal immigrants can be counted

By Stephen Dinan     •      The Washington Times

In this Tuesday, July 7, 2015 file photo immigrants from El Salvador and Guatemala who entered the country illegally board a bus after they were released from a family detention center in San Antonio. Women and children are being released from immigrant detention centers faster on bond, with many mothers assigned ankle-monitoring bracelets in lieu of paying. (AP Photo/Eric Gay, File)

A unanimous Supreme Court ruled Monday that illegal immigrants and other noncitizens can be counted when states draw their legislative districts, shooting down a challenge by Texas residents who said their own voting power was being diluted.

The ruling does not grant noncitizens the power to vote, but says the principle of one person, one vote doesn’t require localities to only count those who are actually eligible to vote when they are deciding how many people to put inside of each district.

Justice Ruth Bader Ginsburg, writing for the court, said even though only eligible voters are supposed to cast ballots, elected officials represent all people within their districts, and it is that act of representation, not the election itself, that the boundaries are drawn to.

“As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote,” she wrote. “Nonvoters have an important stake in many policy debates — children, their parents, even their grandparents, for example, have a stake in a strong public-education system — and in receiving constituent services, such as help navigating public-benefits bureaucracies.”

Hispanic groups hailed the ruling as a victory for their own political power, saying it ensured Latinos continue to earn representation even if they don’t have the right to vote.

But conservatives and those who want to see a crackdown on illegal immigration said the ruling could entice even more communities to become sanctuary cities, shielding illegal immigrants in an attempt to attract more nonvoters and build their political clout.

Texas residents had challenged the way districts were drawn in their state, saying that because they ended up in districts with more eligible voters, their vote counted less than someone in another district.

Because of illegal immigrants, other noncitizens and children under 18 years of age, state legislative districts in Texas can vary by as much as 40 percent. That means one state Senate district has 584,000 eligible voters, while another has just 372,000 — and Texans in that first district say that means they have a smaller say in who represents them than does a resident of the second district.

The process of dividing up districts is known as apportionment.

At the federal level, congressional districts have been drawn based on total population under the strictures of the 14th Amendment.

All 50 states have generally followed the same rules, though the Constitution wasn’t explicit on the matter.

The justices didn’t rule out the possibility, if a state wishes, of using eligible voters to apportion districts. Justice Ginsburg said they didn’t need to reach that question for now, though two members of the court, Justices Clarence Thomas and Samuel Anthony Alito Jr., both signaled they wanted to tackle that subject.

“There is no single ‘correct’ method of apportioning state legislatures,” Justice Thomas said in his opinion.

He said the Supreme Court itself has vacillated in previous rulings, including in one instance upholding a Hawaii plan that did allow that state to use registered voters to draw its districts, because otherwise the state could be skewed by a massive military population.

Justice Alito, meanwhile, delivered an extensive history of the congressional debate over the 14th Amendment, saying it was a political compromise at the federal level, not the kind of philosophical statement on the nature of democratic representation that Justice Ginsburg made it out to be.

“It is impossible to draw any clear constitutional command from this complex history,” he wrote in his concurring opinion in the case, known as Evenwel v. Abbott.

Over the last 50 years, the court has built up a long list of precedents laying out how states should try to achieve the one-person, one-vote goal, including saying that legislative districts should be about the same size, give or take 10 percent.

But until Monday the justices hadn’t been more explicit on how to measure the deviation.

The problem of massively different district sizes is surprisingly common. The Brennan Center for Justice calculated that more than one in five House districts across the country, and one in six Senate districts, could be unconstitutional if states had been required to use eligible voters.

“Today’s decision is a big win for fair representation,” said Michael Li, senior counsel in the Brennan Center’s Democracy Program and an expert on redistricting. “Redrawing districts the way the Evenwel plaintiffs wanted would have made every legislative map in the country unconstitutional and required massively shifting political representation out of fast-growing urban and suburban communities to rural and slower-growing areas.”

Those who fought Texas’ plan, however, said allowing illegal immigrants to be counted in apportionment creates a skewed incentive for states and cities to try to attract them, thus boosting a region’s own political power by having more members in the legislature.