Sometime in 2016, the United States Supreme Court will render their opinion of a case heard last week. The case is Evenwel v. Abbott [No. 14-940], and the issue is the apportionment of representatives in government. Presently, total population determines the number of representatives in state legislatures and the US congress. For example, California has fifty-three members of the House of Representatives, because there are so many humans in that state, whereas, Wyoming has one representative in the House of Representatives, because there are not enough humans in the state to add a new district. The framing of the challenge is around the idea of "one person, one vote". The challenge is whether determining apportionment is counting all those living in an area or counting only those who are either eligible or registered voters.
Earlier, I wrote of how political the United States Supreme Court is, and how there tends to be little in the way of principals. This case, in my view, wonderfully places my thesis on full display. Recall that the Supreme Court chooses what cases they will hear, rejecting most of them. The Federal District Court in Austin rejected this case, leading to its appeal to the Supreme Court. The court could have let the lower court decision stand, but chose to hear this case. Politics often plays its biggest role when choosing which cases to hear. Evenwel v. Abbott is all politics.
Many humans love to play constitutional scholar. I too enjoy it. It is a fun game. Therefore, before I further review Evenwel v. Abbott, I wish to cite the Constitution of the United States. I feel establishing a base understanding with the text and original intent will help drive my later point’s home.
Article I, Section 2, clause 3:
The "three fifths of all other Persons" references slaves. Section 2 of the Fourteenth Amendment corrected this:
Now put on your constitutional scholar hat and ask this question: did the Founders intend apportionment of representatives in government only be determined by counting eligible voters?
To help, I will remind you of something: the census, which is also in the constitution:
Every ten years, the government counts every human in the nation. This includes women, slaves, children, prisoners, immigrants, the infirmed, and so on. This number is how they get "their respective Numbers" of "the several States which may be included within this Union". Counting every human. Once counting every human, apportionment of representation begins. At the founding of the nation, women could not vote. Nor could slaves. Only white males enjoyed political franchise, also known as suffrage. So one more time:
Did the Founders intend apportionment of representatives in government only be determined by counting eligible voters?
The answer to this question should be so blatantly obvious it pains me to ask. "The actual Enumeration" used to determine how "Representatives shall be apportioned" is the census, which counts "the whole Number of free Persons" along with a special addition; that being a special way to count slaves (who were not eligible voters). It counts women and children, while not referring to voter registration status. The answer is no. If wearing your constitutional scholar hat, you may also add a loud "duh!" Representatives represent every human in a defined region and, collectively, every human in a state as well as the nation.
A Partisan Interest
For conservative partisans and ideologues, this is a problem. Urban areas are huge population centers, and they contain many humans who are not registered voters, such as those who simply have not registered to vote. This also includes ineligible voters, which could be children, immigrants, guest workers, and so on. Because the populations of urban areas are so great, they often have a correspondingly larger number of apportioned representatives in government. Urban areas tend to produce public officials from the Democratic Party, whereas rural areas tend to produce public officials from the Republican Party.
The group who brought the Evenwel v. Abbott case is a conservative firm specializing in finding ways to help conservative political interests. The same group successfully challenged the Voting Rights Act. Conservative political and Republican partisan interest groups support them. They focus on the concept of "one person, one vote" and argue that a rural voter has their vote diluted by urban areas, because there are more humans counted in the urban areas, including non-voters. They contend the only way to ensure fairness is to count only eligible voters. The conservative Heritage Foundation has written an article explaining their point of view. They write a fine case, and start with "Evenwel v. Abbott may prove to be the most consequential case of the coming Supreme Court term due to its possible electoral impact, but as a legal matter there's not much room for controversy or consequence". Discussing the plaintiffs, Heritage notes, "Demographically, [the plaintiffs] districts contain very few resident non-citizens compared to other districts that have major cities or are further to the west and the south. Texas's 31 Senate districts were drawn based on the principle of roughly equal raw population, which is how basically every state does it. So all the districts have about the same number of residents, but they have different numbers of citizens and different numbers of eligible voters". Heritage even cites a Supreme Court case from 1964, Reynolds v. Sims, "the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis". However, Reynolds also states, "[d]iluting the weight of votes because of place of residence impairs basic constitutional rights". This bit, and other cases Heritage cites making similar statements, is all various court precedents. What Heritage never cites is the Constitution of the United States. For good reason, too, because the precedents all reference and uphold apportionment on total population, with the constitution being very blatantly clear on that. The case made by partisan interest groups hinges on various lines in case law, while creatively ignoring any mention of the constitution.
Heritage adds "[i]f the Supreme Court meant what it said over the years, then Evenwel should be a straightforward case with an obvious result: The Court would simply clarify that when it directed states to ensure that districts contain roughly equivalent population, it meant the population of eligible voters". This is what these groups are seeking. The apportionment of representatives in government based only on eligible voters. However, I must drive these points home: "the whole Number of free Persons" included women, who could not vote until 1920, as well as children. "[T]hree fifths of all other Persons" is counting slaves, and slaves cannot vote! The Heritage article, as well as other well-written "think tank" articles on this, throw out many references to case law, along with appeals to ideas of fairness and such. It is all nice, but they miss that constitution such groups claim so much to love. The hope, I assume, is none will notice the oversight.
Strict Construction and Original Intent
As I noted in my earlier posting on the Supreme Court, American conservatives love concepts, or at least buzzwords, popularly referred to as "strict construction" and "original intent". Strict construction is the words on the page. Original intent is what the Founders intended. There is no reading of the constitution where you could find support for an apportionment scheme based on voting status or eligibility. It makes no mention of such things, and clearly counts humans for representative apportionment who are unequivocally ineligible to vote (slaves). The construction is plain language, and the intent is obvious. No amount of obfuscation, legalese, or witty prose can change this.
Hearing the Case
By choosing to hear this case, the conservatives of the court, erstwhile constructionists and originalists, are tipping their collective partisan hand. They know ruling in favor of the plaintiffs, and overturning the lower courts, will reduce the number of Democrats in public office. This partisan objective motivated the conception of this case. It is also a motivating reason for the court to hear it. Those who side with the plaintiffs in 2016 will, like Heritage, cite a line here or there from prior cases to help justify a political aim, all while conveniently ignoring the constitution itself.
Note also, that in the same clause regarding representative apportionment, taxation is included. "Representatives and direct Taxes" are joined here. Choosing not to vote, or being a resident alien, or even an immigrant, does not give license for "taxation without representation". Every human in the United States, be they minors, guest workers, resident aliens, foreign students - even foreign tourists - pay taxes. "No taxation without representation" was a rallying cry and founding principal of the United States, and certainly influential in how the Founders considered full apportionment to be everyone, whether eligible voters or not, "excluding Indians not taxed". Would rendering an opinion that only eligible, or worse, registered, voters be counted for apportionment also mean changing tax laws to only tax eligible or registered voters? I will bet the farm none will dare make that argument.
In spite of all of this, half of Americans, and oddly, it will be the conservative half (which makes no sense, if they have any principals at all) will support judicial activism and legislating from the bench in an effort to reduce the number of public officials from the Democratic Party. I would not be surprised to see four members of the Supreme Court issue an opinion siding with the plaintiffs in 2016. I sincerely hope the remaining five will reject this partisan game. This activity in the courts will go unnoticed by the overwhelming majority of Americans, whether voters or not. Americans will only notice if the court does side with the plaintiffs, and upend the way representative apportionment is defined. By then, it will be too late.