*Correction appended

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When you’re building your democracy, you have to figure out exactly who you're going to disenfranchise.

The U.S. Supreme Court said this week that it is permissible to use total population when drawing political districts of equal size, even if it means voters in one district end up with more clout than their counterparts in other districts.

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That’s hardly the only way to dole out electoral influence, and it is not the only method that someone will find unfair. Each gives someone an advantage and hobbles someone else:

  • Decide not to count people, as the framers of the Constitution did when they based population counts and voting rights on 100 percent of white people and 60 percent of slaves.
  • Don’t allow some people to vote, like the framers’ decision to leave out everybody who didn’t look like them: women, for example.
  • Base district lines on participation, counting only people who vote and paying no mind to the overall population. Alternately, include only those who are eligible to vote, ignoring children, noncitizens and felons, when drawing political districts.
  • Or do what Texas and most other states do — and as the Constitution already requires for apportioning congressional representation among the states: Ignore participation and citizenship and gender and race and base your political maps and your civic structure on the overall population.

In a unanimous opinion, the U.S. Supreme Court approved that last option in a Texas case this week, knocking down a contention that eligible voters were being disenfranchised by the unequal distribution of ineligible voters.

The voters who sued the state — and who lost in this week’s decision — figured it this way: If the state’s Senate districts have equal populations, differences in participation within those districts allow some voters a greater say in who goes to the Legislature and who does not. In the district with more voters, each voter gets proportionately less of the decision than in districts were fewer voters take part.

In Texas, the population difference between the largest and smallest districts is about 8 percent. If you instead count the number of eligible voters in each district, there is about a 40 percent difference between the biggest and the smallest.

The Supreme Court didn’t buy that argument.

“Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries,” Justice Ruth Bader Ginsburg wrote in the majority opinion. “Appellants have shown no reason for the Court to disturb this longstanding use of total population.”

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The court ruled that Texas “may” use population as the basis for the size of its legislative districts. It didn’t say it must, however — that’s not the question the court was asked.

Want to squint at that? The court left open the possibility that states could legally use another method, like drawing districts that have unequal numbers of residents but equal numbers of eligible voters. Previous decisions permit the state to “use any neutral nondiscriminatory population baseline, including total population, when drawing state and local legislative districts,” Ginsburg wrote, quoting the lower court's decision in the case.

It boils down to a question of which differences to correct: Is it better to give each voter an equal say in who represents them, or to give each resident equal access to an officeholder who has been elected? Is this about citizens, voters or residents? For congressional districts, it’s the third group: Per the Supreme Court, each of a state’s congressional districts has to have the same number of people in it when the political maps are drawn.

Monday’s ruling was unanimous, but justices Clarence Thomas and Samuel Alito wrote concurring opinions. The other six justices stuck together, however, in an opinion that included a caution to states that might be thinking of new map-making rules.

“Nonvoters have an important stake in many policy debates — children, their parents, even their grandparents, for example, have a stake in a strong public-education  system — and in receiving constituent services, such as help navigating public-benefits bureaucracies,” Ginsburg wrote. “By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.”

Until they are redrawn by the Legislature — which could happen any time but has to be done in 2021 whether lawmakers want to play with the district lines or not — the maps of Texas will be based on people, and not just those who can vote.

Editor's note: A previous version of this story did not make it clear that the Constitution requires population to be used when apportioning congressional seats to the states and not when drawing the districts themselves; and that Ginsburg was quoting from a lower court ruling when writing about permissible baselines for drawing state and local legislative districts.

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