< When Drawing Districts, Should States Count Each Person Or Each Voter?

STEVE INSKEEP, HOST:

The Supreme Court hears an elections case today. It is nowhere near as dramatic as the year 2000, when the court ruled on the outcome of the presidential election.

DAVID GREENE, HOST:

This case could, however, shift many future elections across the country. It involves the way state legislative districts are drawn. And it could tilt some states in a more Republican direction.

INSKEEP: Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: The federal Constitution is clear. The national government's House of Representatives is to be apportioned based on the total population in each district, and the census is to count each person, whether eligible to vote or not, so that all are represented. The status of state legislative districts, however, is less clear. Until 1964, they often varied wildly in population. In Alabama, for instance, the population variances between two state Senate districts was 41 to 1. In a landmark 1964 decision, the Supreme Court struck down the Alabama redistricting and ruled by an 8 to 1 vote that the 14th Amendment's equal protection guarantee mandates the principle of one person, one vote. But what does that mean? Does it mean that the total population of state legislative districts should be equal? Or does it mean that the number of eligible voters in the district should be equal - or the number of registered voters? Oddly enough, the Supreme Court has never specifically answered that question. But virtually all the states now draw lines based on equality of total population, not eligible voters or registered voters. Should that change, it would mean that children and immigrants, both legal and illegal, and other groups of people would be excluded from the population count when state legislative districts are drawn. The lawsuit before the Supreme Court today seeks to do just that. Two Texas voters are challenging the 2010 Texas reapportionment as unconstitutional because it created 31 state Senate districts to be as equal as possible in total population. The challengers claim that the correct constitutional metric should be eligible voters, not total population. Using that standard, they say that the Texas Senate map gives them roughly 50 percent less power. Sue Evenwel, a member of the Texas State Republican Executive Committee, is the lead plaintiff. She notes, for instance, that her mainly rural district has 584,000 citizens eligible to vote, while a neighboring rural district equal in total population has only 372,000 eligible voters. Therefore, she argues, her vote has less weight. The Republican-dominated state of Texas nonetheless defends total population as the best and most reliable means of ensuring equality in representation.

SCOTT KELLER: The federal census data right now doesn't ask for citizenship. So we are using the best data set available.

TOTENBERG: Texas Solicitor General Scott Keller maintains that under previous Supreme Court rulings, the state can choose which population it is seeking to equalize, as long as it's not targeting one group for discrimination.

KELLER: Texas, like every other state, has used total population for decades. And there has been no claim that there's been unfair representation or our system of democracy has been undermined.

TOTENBERG: The challenge to the Texas redistricting has been coordinated by conservative activist Edward Blum. Some have called him the mastermind behind a series of cases that have successfully challenged long-established civil rights principles. Two years ago, Blum and a small cadre of lawyers succeeded in gutting a key portion of the 1965 Voting Rights Act. This week, he has two more cases before the high court - today, the legislative districting case and tomorrow, another case he spearheaded, also from Texas, challenging affirmative action programs in state college admissions. Blum used to be quite open about his work. But he is no longer talking to broadcasters, he says, because he isn't good at it. The lawyers arguing the cases are not talking either, so we turned to Ilya Shapiro of the conservative and libertarian Cato Institute.

ILYA SHAPIRO: If you have a situation where one person's vote is effectively worth half of what another person's vote is in the neighboring district, that, I think, is a problem.

TOTENBERG: Shapiro points to Utah, a state with a high birthrate, as an example of a state that has greater representation for rural districts with lots of children than the urban and, in his words, more hipster city of Salt Lake. But ultimately, he tracks the disparities today to the immigrant population. In the last half century, he says, total opposition has generally tracked eligible voting population.

SHAPIRO: And indeed, the late '60s, early '70s represented the lowest foreign-born population in this country that we've had at least in the last hundred years or so. And now we're approaching the highest again, so that's why you have this disparity.

TOTENBERG: Shapiro, who wrote a friend of the court brief siding with the challengers in this case, contends that the Constitution is based on voter, not population, equality. But David Gans of the liberal-leaning Constitutional Accountability Center co-authored a contrary brief, noting that when the 14th Amendment was debated, the fight was over who should be covered by the equal protection guarantee.

DAVID GANS: And one view was that representation should be based on the number of voters. And that's the view that Evenwel argues in this case. And that view, at the time, would have excluded women. It would have excluded aliens. It would have excluded children.

TOTENBERG: But that view, he notes, was repeatedly voted down by the House and the Senate.

GANS: The theory that the framers of the 14th Amendment adopted was to reaffirm total population as a standard. This includes everyone and ensures that everyone's voices are accounted for in representation.

TOTENBERG: There's one other aspect of this case, and that's the pragmatic difficulty of creating districts of equal numbers of eligible voters when those numbers are not compiled anywhere, when voting rolls are notoriously inaccurate, fluctuating and unpurged and when people age into the voting population every day. A brief filed by five demographers contends that it could be done using a tried and true sampling technique instead of actual enumeration. But a brief filed by former Census Bureau chiefs from both Republican and Democratic administrations says that adequate data for a citizen-only population count simply does not exist now, nor is it likely that sufficiently precise and reliable data of that kind could be obtained. Nina Totenberg, NPR News, Washington.

Copyright © 2015 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.