Congress Is Probably About To Get A Whole Lot Whiter Thanks To The Supreme Court

CREDIT: AP Photo/J. Scott Applewhite

It’s been nearly two years since the Supreme Court struck down a core provision of the Voting Rights Act, but the full impact of this decision won’t be seen until 2022. After the 2020 census, states will enter their next redistricting cycle. But unless a shift in the Supreme Court’s membership permits the Voting Rights Act to be reinstated, the next redistricting will occur without the full force of the Act’s safeguards against racial gerrymandering or other practices that could lead to ‘‘retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.’’ The result is likely to be fewer districts where people of color can select a candidate of their choice, and, ultimately, a whiter House of Representatives.

On Tuesday, the Supreme Court announced that it would hear another case, Evenwel v. Abbott, that could further elevate the power of white voters and diminish representation of people of color. Though the case technically came up through the Court’s mandatory jurisdiction, meaning that the justices had to give the case at least cursory review, their decision to grant the case a full hearing surprised many election law experts. University of California, Irvine law professor Rick Hasen, wrote that he considered the legal issues presented by Evenwel to be sufficiently settled that full Supreme Court review had seemed unlikely. He added on Twitter that he was expecting the Court to issue a “summary affirmance,” a very brief order endorsing the lower court’s application of existing law.

Evenwel concerns how states must comply with the Supreme Court’s “one person, one vote” doctrine, which requires states to draw legislative districts with roughly equal population. As the lower court in Evenwel explains, current law gives states a fair amount of leeway to decide how they construct the pie that must be divided into equal slices. Texas, whose districts are under consideration in Evenwel, drew its district lines by looking at the state’s total population and then ensuring that each district has roughly the same amount of residents in it, regardless of whether those residents can vote. The plaintiffs in this case want Texas to divide its districts so that each district also has roughly the same number of voters, not just the same number of people.

This approach has some intuitive appeal, and a decision in the plaintiffs’ favor would have some salutary effects. Most notably, people who live in districts that include prisons often enjoy disproportionate representation because the prison’s inmates are often treated as residents of the district even though they cannot vote. If the Supreme Court holds that districts must have roughly equal voter population and not just roughly equal total population, that will eliminate the extra electoral power enjoyed by people who live near prisons.

Especially in a state like Texas, however, the big losers if the Supreme Court sides with the plaintiffs will be Latinos, as Latino voters are significantly more likely to live near non-citizens. Should the plaintiffs prevail, many Latino neighborhoods in Texas and elsewhere will lose political clout, while other areas will gain at these neighborhoods’ expense. That won’t be a complete bonanza for white voters — there are plenty of people of color who live primarily among other U.S. citizens — but it will help to make Congress whiter than it otherwise would be.

Should the Evenwel plaintiffs prevail, moreover, it’s likely that the decision’s impact on districts with large numbers of non-citizen residents would dwarf its impact on districts that include prisons. An estimated 2.4 million Americans are incarcerated, according to estimates that include people facing relatively short-term incarceration in local jails. Meanwhile, the Department of Homeland Security estimated that 13.1 million legal permanent residents lived in the United States at the beginning of 2011 — and that’s just legal permanent residents, not all non-citizens.

Additionally, the plaintiffs’ approach will produce odd results that bear more than a passing resemblance to an odious provision of the original Constitution. As University of Michigan law professor Samuel Bagenstos explains in an email, “Section 2 of the Fourteenth Amendment requires members of the House of Representatives, and accordingly electoral votes, to be apportioned among the states on a total-population basis. So Texas gets 36 representatives, in part because of its large non-citizen Latino population, no matter what happens. But if the plaintiffs prevail, those non-citizen Latinos won’t count when the state draws its district lines.”

Bagenstos adds that this “offers an analogy, though imperfect, to the 3/5s Clause” of the original Constitution. Before the Thirteenth Amendment abolished slavery, slaves were counted as three-fifths of a person for purposes of determining how much representation a state enjoys in Congress. Thus, slave states could essentially pad their population numbers, gaining extra representatives at the expense of free states, even though their system of governance was built around the notion that enslaved people are completely politically powerless.

It would be facile and offensive to compare the circumstances facing non-citizens in Texas to those facing slaves in the antebellum United States. But the rule offered by the Evenwel plaintiffs does resemble the Three-Fifths Clause insofar as it allows states to pad their population with residents who are unable to vote. In a state like Texas, that means that the state’s non-Latino communities will wield extra political power simply because they live in the same state as a large number of non-citizens who are disproportionately Latino.

Indeed, that may very well be the point. The “mastermind” behind Evenwel is Edward Blum, a conservative activist who also spearheaded the challenge to the Voting Rights Act and a high-profile Supreme Court challenge to affirmative action. It’s possible that no man who does not sit on the Supreme Court has done more to limit American law’s protections for people of color than Mr. Blum.