By Tom Topping
Associate Editor, Vol. 21
“One person, one vote,” a longstanding principle upon which our legislative districts are drawn, is under fire in a case currently pending before the Supreme Court. In Evenwel v. Abbott, the petitioners attack Texas’s policy of drawing state-level legislative districts in proportion to the total population residing in each district. The petitioners assert that the Equal Protection Clause of the Fourteenth Amendment requires states to draw districts containing a roughly equal number of citizens eligible to vote, rather than an equal number of all persons. They claim that Texas’s method of drawing districts dilutes their voting power by granting those who live in districts with a large number of undocumented immigrants more voting power. According to the petitioners’ theory, one who lives in a district where half of the population is not eligible to vote has twice as much voting power than one who lives in a district of the same size but where everyone is eligible to vote.
Current law on this issue traces back to the U.S. Supreme Court case of Reynolds v. Simms. In that case, the Court ruled that the Equal Protection Clause requires legislative districts to contain a roughly equal population. The Reynolds decision, however, did not answer the precise question presented in Evenwel, namely, “Equal population of what?” Does the Equal Protection Clause mandate that legislative districts contain an equal population of eligible voters or an equal population of “people?” Justice Thomas described this problem in Chen v. Houston. The case involved a challenge to the makeup of Houston’s city council districts, which the petitioners claimed gave minorities more voting power than whites. The Fifth Circuit upheld Houston’s districts, and the Supreme Court denied certiorari. But in his dissent from the certiorari denial, Justice Thomas emphasized that the Supreme Court had never ruled on what properly constitutes a district’s “population.”
There is some disagreement in the circuits on this issue. The Fourth Circuit, for example, has ruled that the issue of which population to use to decide these cases is a non-justiciable political question. The Ninth Circuit, on the other hand, has ruled that using the eligible voter population, rather than the total population, is unconstitutional. But so far, no circuit has explicitly ruled that the Equal Protection Clause prohibits states from drawing districts based on their total population, so the disagreements have had little practical effect.
Historically, no requirement has existed to count only citizens who are eligible to vote. If it had, women, children, and those who do not own land would have been excluded for the purpose of drawing legislative districts throughout this nation’s history.
On the surface these challenges appear to be aimed at giving an electoral advantage to the Republican Party. In Evenwel, a ruling in favor of the petitioners would result in districts that do not count undocumented immigrants for purposes of creating legislative districts. Such a move would create a smaller number of much larger legislative districts in areas with large populations of undocumented immigrants, thus diluting the voting power of those communities, particularly the Latino voters. Given the Republican Party’s difficulty in attracting minority voters, diminishing their electoral power will certainly benefit the Party.
Of course, Evenwel involves a challenge to legislative districts in the state of Texas, hardly a Democratic Party stronghold. It may be the case that a victory by the petitioners would harm not only Democrats, but large states as well. One of the reasons Texas receives so many electoral votes in Congress is its large Latino population. If the Court rules that only citizens who are eligible to vote may be counted for the purpose of drawing legislative districts, it may also rule that only those citizens be counted for apportionment as well. Such a holding would reduce the power of majority red states like Texas and Arizona, which have large populations of undocumented immigrants.
There is no doubt that a ruling in favor of the petitioners will result in the dilution of power of minority communities. It is not clear, however, that such a dilution would ultimately benefit one political party over another. Instead, minority communities may end up getting caught up in the battle between the two major parties, only to be harmed in the process exclusive of outcome.
 Reynolds v. Simms, 377 U.S. 533, 568 (1964).
 In general, the variance may not be more that 10%.
 Chen vs. Houston, 532 U.S. 1046 (2001).
 Id. at 1047.
 Daily v. Hunt, 93 F.3d 1212, 1227 (4th Cir. 1996).
 Garza v. County of Los Angeles, 918 F.2d 763, 775 (9th Cir. 1990).
 It is true that this case involves state-level districts. But there is no reason to think that a ruling in favor of the petitioners would not be extended to the federal level, either in this case or in the future.