There are many ways to interpret the issue facing the Supreme Court in Evenwel v. Abbott, which was argued last week. First and foremost, plaintiffs Sue Evenwel and Edward Pfenninger, who (aided by a right-wing legal group) are bringing a lawsuit against the state of Texas, are pushing a novel twist on the norm of “one person, one vote.” Texas, like most states, draws up equal legislative districts by counting all the people who live in them—not, as the challengers would have it, only the district’s eligible voters. During oral arguments, Justice Breyer mused that this raises questions about the “kind of democracy” Americans will have. Garrett Epps, on the other hand, writes that the matter really comes down to “bare-knuckle politics”: “debates about representation have usually been inspired by partisan advantage, not first principles of liberty.” And this case, which could result in a huge shift of power away from populous urban districts with lots of non-voters, such as immigrants—in other words, Democratic districts—has “partisan advantage” written all over it.
Of course, there’s more to the matter than just constitutional debate or partisan brawl (nor are those exclusive categories). The case can also be seen as another attempt by conservatives to justify diluting the political power of minorities by adopting the rhetoric of vote-sanctity. In 2012, amid hysteria over phantom voter fraud, the president of Florida’s state senate put it this way: “A lot of blood has been shed to preserve our freedoms—not for people to allow their votes to be diluted by people who should not be voting.” In similarly affected fashion, the Evenwel plaintiffs claim that the existence of districts with proportionally fewer voters violates the Equal Protection Clause. In remarks during oral arguments, Chief Justice Roberts seemed to find this fairness-based argument appealing: “It is called ‘one person, one vote,’” he quipped. “That seems designed to protect voters.”
This flip appeal to the deceptive simplicity of a key phrase is the Chief Justice’s stock-in-trade when it comes to questions of race. (His best-known reach for rhetorical immortality—“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—will be remembered, but probably not for the reasons he hoped.) And so, in addition to the partisan and constitutional implications, this case may someday provide crucial material for the chapter on race in the definitive intellectual biography of Roberts. It already testifies to the profound influence of the conservative legal movement in remaking American politics, including its key role in mitigating the GOP’s looming demographic decay. For conservatives, remaking legislative districts to shift more power to rural, white communities can’t happen soon enough.
For all this, there is still another, perhaps less obvious, way to read this case: as one more symptom of the political system’s failure to normalize the status of the undocumented. The Latino denizens of Texas’s big cities who lack citizenship are nonetheless members of their communities in manifold ways. They share in public life—may even share a family—with citizens, and it’s impossible for elected officials to do their jobs without representing their interests too. It is only their lack of formal status—held up by ongoing obstruction by conservatives in Congress—which lends a patina of principle to this power grab. The obvious solution is to bring the law in line with facts on the ground, and give these denizens the opportunity to become citizens. If the problem is that some urban districts are home to large numbers of community members who can’t vote, the solution is not to rob them of representation, but to bring an end to that partial membership status. The long-term presence of a shadow population—of residents with deep social ties who nonetheless lack citizenship—creates fertile conditions for all manner of political problems, and this is just one manifestation. As long as immigration reform remains blocked, it will be easier to pretend that repurposing ‘one person, one vote’ in order to weaken minority representation is mere constitutional fidelity, not a last-ditch effort to rebalance the scales against a population with a rightful claim to equal representation.