'We the People' Means Everyone

Not pictured: people who still count.

Photographer: Tim Boyles/Stringer/Getty Images

The common shorthand for describing democratic equality in the U.S. -- "one person, one vote" -- sounds so simple. But as a case before the Supreme Court on Tuesday made clear, it's not, and the danger is that the court could complicate it further.

In Evenwel v. Abbott, two Texans say that the state's process for drawing legislative districts is unconstitutional, because each district contains roughly an equal number of residents, rather than an equal number of eligible voters. To illustrate the point: Both District A and District B have 100 people. But District A has 10 adults and 90 children, while District B has 90 adults and 10 children. Therefore one vote in District A carries far more weight than one vote in District B. The "one person, one vote" doctrine, the plaintiffs say, requires that districts be drawn based on the number of eligible voters.

It's a compelling but ultimately unpersuasive argument. When the Constitution was adopted, even though many white men and all women were excluded from voting at the time, the Founding Fathers did not exclude them for purposes of representation in Congress. Nor did Congress and the states do so when they ratified the 14th Amendment, which says that congressional districts must be drawn by "counting the whole number of persons in each state, excluding Indians not taxed." As Justice Elena Kagan asked at Tuesday's hearing, how could it be that "the Constitution requires something with respect to one apportionment that it prohibits with respect to another?"

Congress represents all people, and thus all people should be counted. It should be no different in state legislatures.

Equal representation for non-eligible voters may strike some outside the U.S. as peculiar. But as an expression of a nation's commitment to government of, by, and for the people, it's worth preserving. And as a practical matter, there's good reason why states use total population for apportioning districts: The U.S. census doesn't distinguish between citizens and noncitizens, and estimates about voting-eligible populations are unreliable.

If the Supreme Court requires states to ignore non-eligible voters in drawing districts, about one in five state-level legislative seats in the U.S. may have to be redrawn. Yet even if the court decides against the plaintiffs, it could still open the door to voter-based districting.

In a 1966 ruling, the court held that Hawaii could use registered voters, rather than total population, as a means of apportionment. Otherwise the number of temporary military personnel would have "substantially distorted" the state's districts. If the court broadens that ruling, states controlled by Republicans may begin reapportioning districts based on voter eligibility, given the political advantage they stand to gain.

If only eligible voters are counted, voters in urban areas and Hispanic communities, both of which lean Democratic, would be spread thinner, while areas with few noncitizens, children and felons would gain clout.

Drawing districts is already too partisan and litigious. The Supreme Court should not make it more so by requiring or empowering states to abandon a principle that has long served the country well.

To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net.