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The voting rights lawyers who assembled at the U.S. Supreme Court on Tuesday were there to argue about who should be counted when state legislatures draw their political lines.
It’s a Texas case — Evenwel vs. Abbott — filed by a couple of voters who contend their political voices are muted because of the nonvoters in their districts.
All of that is about voting. It’s not about representation. But if the plaintiffs are successful, then there will be an issue of representation. When districts are based on total population, each state senator (or state House member, or member of Congress) represents the same number of people. If the lines were based instead on voting-age population, the numbers would change. Each district might have the same number of eligible voters, but the senators could have large variations in the numbers of people — voters plus non-voters — they represent and serve.
The political lines are based on total population. For the Texas Senate, which has 31 seats, you take the total population of the state — delivered fresh every 10 years by the U.S. Census Bureau — and divide by 31. With some allowable variation, each district has to have roughly the same number of people.
But those districts are not required to have the same number of voters. Some have more nonvoters — children, felons and noncitizens — than others.
Sue Evenwel and Edward Pfenninger contend that’s unfair because they live in districts that have more voters than some other districts, which gives each of their voters a smaller voice in the selection of a state senator than the neighboring district’s voters have.
The Supreme Court might buy their argument. The U.S. Constitution says total population should be the basis for divvying congressional districts among the states, and the court has generally said that standard should also hold when states draw the maps from which their congressional delegations are elected. States such as Texas have generally used the same standard for their own legislative maps (and others, like the maps for the State Board of Education).
If the court rules with Evenwel, new lines will have to be drawn to balance the number of voting Texans in each district; that would have the effect of shrinking the populations of rural and some suburban districts and of increasing the populations of urban districts, which tend to have more nonvoters in them.
In political terms, that would dilute the strength of districts that favor Democrats, where there tend to be smaller numbers of eligible voters and increase the strength of Republican districts, where the numbers are larger. Democratic districts would have to absorb some of the eligible voters now in the Republican districts.
This particular legal case is only about the political districts drawn for legislative seats. But if the court rules in favor of Evenwel, somebody is eventually going to ask the justices to allow the same standard for drawing congressional map lines.
Even if they don’t, those newly drawn state maps would be used to elect the legislatures that draw the congressional maps.
Legislators already draw political maps to their own advantage, and that wouldn’t change. But the rules could.
Texas Senate districts each have an average of 811,147 residents. The average number of voting-age citizens is much smaller: 502,632. The lawyers for Evenwel pointed out in their arguments that it is possible — difficult, but possible — to draw districts that have not only the same number of voters but also the same number of residents.
They did not point out the other extreme: If the states are required only to make sure that each district has the same number of voters, they could theoretically draw a map that puts all of the noncitizen voters in just one of those districts. When the maps were last drawn, the state had 25.1 million residents, about 6.9 million children and about 2.7 million noncitizen adults. That left roughly 15.6 million (the numbers are rounded) citizens of voting age.
One more angle on this: Drawing districts of equal population doesn’t guarantee anything but the opportunity of voting clout. Most of us don’t exercise it. The last general election in a presidential year drew 8 million Texas voters — just more than half of the voting-age citizens, and just under a third of the population. Only 2.1 million voted in the Republican and Democratic primaries that year.
The justices pointed out a practical problem with using something other than population: Population is an actual count of humans in a particular area. Election turnout is a count of people who cast a ballot. Everything else — citizens, noncitizens, and where they live — is a statistical estimate.
In the end, that practical problem might outweigh everything else.