WASHINGTON — As the U.S. Supreme Court heard oral arguments Tuesday over a Texas case that sought to clarify what “one person, one vote” means in American politics, some justices questioned the argument that the state's current system diminishes the power of some voters. And others considered arguments that would upend how voters are sorted into legislative districts.  

The question before the high court was "who counts as a person?" when it comes to dividing up Americans in state legislative districts. In Tuesday’s arguments on Evenwel v. Abbott, the state of Texas defended its position that the entire population, including resident noncitizens, felons and children, should be counted — not merely eligible voters, as the plaintiffs argued.

Congressional districts are based on total population, as required by the U.S. Constitution. Texas also divides its legislative districts based on the population count from each decade’s U.S. Census. It does not factor in how much of that population can actually vote. If the Supreme Court rejects the current law that counts all humans, legislative districts would be determined by how many people are eligible to vote. 

Attorney William C. Consovoy, who represented the two Texas plaintiffs, Sue Evenwel and Edward Pfenninger, argued that through the current system, his clients' power as voters is diminished because the ratio of eligible voters in their state Senate districts is higher than other seats. 

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He said that voters in seats where there is a large proportion of nonvoters — children, undocumented immigrants, felons, prisoners and those with mental disabilities — have outsized influence in the state government. 

Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor — all appointed by Democratic presidents — challenged Consovoy on this premise. Ginsberg, in particular, questioned the practicality of the eligible voter standard in the era before women's suffrage. 

"Is it your view that what the 14th Amendment means is that in all the years between ... 1868 and 1920, it was wrong for the states to include, for these purposes, women?" she asked. "They were not eligible voters."

Consovoy responded that the court already addressed the issues of gender and racial discrimination. 

"Eventually, that issue was resolved by this country, as was minority representation," he added. 

Texas Solicitor General Scott A. Keller and U.S. Deputy Solicitor General Ian H. Gershengorn defended the current process Tuesday, with Keller arguing that an unraveling of the current system would “upend the redistricting process.”  

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Justice Samuel Alito challenged Gershengorn with what he described as "an extreme case": a rural district with a large prison full of disenfranchised incarcerated people. Justice Anthony Kennedy questioned why voter equality and population equality were mutually exclusive. 

Keller countered that to side with the plaintiffs, "states would inevitably have to disregard many other traditional redistricting factors, like compactness, continuity [and] keeping communities together." 

Gershengorn pointed to New York City as an example of why the plaintiffs’ argument was unfeasible. 

He noted that 9 percent of Manhattan’s population is children, who are included in the census but are not able to vote. In contrast, 30 percent of the population in neighboring borough Brooklyn is made up of children. 

If the Evenwel-endorsed standard became law, Gershengorn said, Brooklyn would theoretically need to absorb Manhattan voters into its state legislative districts. In his view, that would disrupt political constituencies and compactness. 

Earlier in the day, members of the Congressional Hispanic Caucus appeared at the Supreme Court to protest the plaintiffs’ case, including U.S. Rep. Joaquin Castro, D-San Antonio.   

“This case is an affront to our democracy,” he later said in a statement. “It sends a message to millions of Americans in this country that they don’t count.” 

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