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Friday, October 20, 2017

By Leah Aden, Tribune News Service (TNS)

A case before the Supreme Court this week has the potential to change equal access to political representation as we have known it for at least the last 50 years. In Evenwel v. Abbott, a case arising out of Texas, the court may decide whether apportioning legislative districts, from which state legislators are elected, based on total population satisfies the Constitution’s one person, one vote principle. History, practical realities and fairness reflect that it does.

In an unbroken line of cases for the last half-century, beginning with Reynolds v. Sims in 1964, the Supreme Court and lower courts have approved of states assigning as equal number of persons as is practicable to legislative districts, while balancing other state redistricting guidelines. This practice has mirrored the division among the states of federal congressional districts based on each state’s total population, which the Constitution expressly requires. Equalizing total population across districts ensures that each representative represents the same number of persons (i.e., constituents) as all other representatives. As a result, today all 50 states use total population to apportion their state legislative districts.

The court decided Reynolds just four years after Gomillion v. Lightfoot, which was litigated by the NAACP Legal Defense and Educational Fund (LDF). In Gomillion, the court reviewed a challenge to municipal boundaries of Tuskegee, Ala., which had been redrawn to kick out almost all of its black voters. The court rejected the new boundaries as unconstitutional because of their effect of “fencing (black persons) out” of their right to participate in the political process. LDF counsel Robert L. Carter and others likened Tuskegee’s illegal “evasive scheme” to other measures that impinge upon black voting rights, such as voting qualifications or other geographic restrictions.

Even though Gomillion, Reynolds and their progeny have repeatedly rejected the fencing out of specific groups from the political process, those that have brought Evenwel before the court seek to do just that and backtrack on the progress that we have made toward a more inclusive and accessible democracy.

Sue Evenwel and Edward Pfenninger are white voters who live in rural areas of Texas. They claim that their individual votes in their rural state legislative districts are worth less than those of persons in other districts, namely those encompassing urban areas, because they live in areas that are comparatively overpopulated with voters. Evenwel and Pfenninger want the court to determine that Texas should apportion its state legislative districts to equalize the number of “eligible voters” across the districts.

This undefined, nebulous term that the plaintiffs would have states use to apportion districts would fence out: children, the majority of whom are citizens, and of whom there are 75 million across our country; non-citizens, including those on their path to legal citizenship; people with mental disabilities; people who are eligible to register to vote but have not; people with felony convictions, of whom there are an estimated 6 million in our country; and many others.

LDF estimates that more than 20 million black people — 13 million black children, nearly 5 million unregistered black voters, 2 million black non-citizens, and 2 million black individuals with felony convictions — would be fenced out of state legislative redistricting across this country if the court breaks with history, precedent and practice to accept the plaintiffs’ viewpoint.

Another effect if the court rules in the plaintiffs’ favor would be fewer and more populous urban districts composed of a greater proportion of nonvoting, low-income residents and new immigrants; rural districts composed of more affluent people like Evenwel and Pfenninger would benefit.

Maintaining the ability of all 50 states to create their legislative districts with equivalent total populations fosters access to electoral representation and constituent services regardless of race, class, religion or other characteristic. Using total population allows everyone — including children who are not old enough to vote, people rendered ineligible to vote by felon disfranchisement laws, and noncitizens who pay taxes and who for centuries have helped build this country — to be represented in state and local legislative bodies, regardless of whether they can or do vote.

As a practical matter, too, total population data collected by the U.S. Census is the most precise and accurate data available, less subject to manipulation, political whims and discrimination.

As our country becomes more racially and ethnically diverse, we must honor and carry on our history of openness, inclusiveness and equal access to representation for all people.

ABOUT THE WRITER

Leah Aden is an attorney with the NAACP Legal Defense and Educational Fund, Inc. (LDF). The LDF filed an amicus brief in Evenwel v. Abbott.

Distributed by Tribune Content Agency, LLC.

Photo: The U.S. Supreme Court is pictured in Washington June 8, 2015.  REUTERS/Gary Cameron