Friday, December 4, 2015

Evenwel v. Abbott: The Possible Dilution of Latino Voting Power?

So far this Term (but possibly changing if the Supreme Court grants certiorari in Texas v. United States), there are not many significant immigration cases on the Supreme Court's docket. However, one case directly touches on Latina/o voting power, and therefore could have a significant impact on the prospects for immigration reform and other related kinds of legislation.

Next Tuesday, the Court will hear oral arguments in Evenwel v. Abbott, which raises the question whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population, when apportioning state legislative districts.  Immigrants (lawful permanent residents and undocumented immigrants) who live in the United States generally are not eligible voters; in some parts of the country, a significant number of Latino residents are not eligible voters and would be counted in redistricting decisions if the Court agrees with the petitioners in Evenwel.

William S. Consovoy, an attorney with Consovoy, McCarthy and Park PLLC in Arlington, Va., will represent the voters. Texas’s Solicitor General, Scott A. Keller, will argue for the state. Deputy U.S. Solicitor General Ian H. Gershengorn will represent the federal government.

Lyle Denniston's oral argument preview on SCOTUSBlog is here.  He sees a theme running through much of these filings on Texas’s side of the case is that there simply is no metric available on how to apportion a state’s election districts according to eligible voters. He sees as a more prominent theme in the briefs a defense of a theory of universal representation as the standard of equality. The Obama administration has entered the case and advocates "constitutional caution. On a practical level, it argues that a total population metric had worked well, and that it is the only one for which precise data is available."

Garrett Epps in The Atlantic analyzes the possible ramifications of Evenwel:

"[Evenwel]  is a challenge by a group of registered Texas voters to the state’s plan of districts for the state senate. The Texas legislature drew its new districting plan on the assumption that it should try to make each district roughly equal in population to every other. The plaintiffs in Evenwel challenged that plan, however, on the grounds that the legislature should use eligible voters, rather than total population, as the relevant measure. Each district, in other words, should have roughly the same number of eligible voters, not the same number of people.

The change would produce a political earthquake. Eligible voters as a group are older (no children under 18, to begin with), wealthier, and more Republican—and, even more important in Texas, whiter and more Anglo—than the population at large. Many people in the Southwest—both legal residents and undocumented immigrants—are not citizens. Under the proposed Evenwel rule, only those eligible to vote count." (emphasis added).

It has been observed that, if the Court sides with the petitioners in Evenwel, the impact on Latino voting power could be great.  The Court may decide whether voting districts should continue to be drawn by using Census population data, which include noncitizen immigrants who are in the United States both legally and unlawfully, or whether the system should be changed to count only citizens who are eligible to vote. In California and other states with large noncitizen populations, the change would have big impacts. As described by the Los Angeles Times, "[d]istricts in the Legislature are required to have virtually the same population. But in some districts, a large share of residents are noncitizens. That’s particularly true in parts of Los Angeles and the Central Valley that have large immigrant populations. The number of citizens can be as much as 40% higher in some districts than in others."

The dilution of Latino voting power, in turn, could impact the number of Latina/o legislators in state legislatures and possibly Congress.  This, of course, could impact immigration and immigrant-related legislation.  Stay tuned!


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