U.S. Supreme Court AP Photo/J. Scott Applewhite

It’s a hard contrast to an agreement on the same issue in 1787 that counted slaves as three-fifths of a person for districting purposes.

Monday, the U.S. Supreme Court clarified in its April 4 Evenwel v. Abbott ruling that legislative districts should be drawn inclusive of all the people living within them, as has been the standard for at least the past five decades. Texas resident Sue Evenwel challenged that standard last year with the help of Voting Rights Act-foe Ed Blum, the director of the Project on Fair Representation, charging that districts should be drawn based on eligible voters, not total population. This would effectively exclude the interests of children, immigrants, the incarcerated, and many Latinos and African Americans who’ve been disenfranchised. It would also shift considerable political advantage to older, rural, white voters, who tend to vote Republican.

SCOTUS rejected Evenwel’s challenge, however, by a unanimous vote. Wrote Wrote Justice Ruth Bader Ginsburg:

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. 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.

The Harvard political science professor Carl E. Klarner found in his study last December that, “utilizing [voting age population] for districting would result in a 12% reduction in Latino state legislators and a 13% reduction in Latino U.S. Representatives,” and that “Latino voting power in the mass public would decline by 4.6% in the U.S. House, 5.2% in state senates and 6.2% in state houses.” Another study that month found that Latinos in Texas, Florida, and across the Southwest would lose the most political representation in a voter-based redistricting scheme.

In addition, some 75 million children—including 13 million African-American children—would have been discounted in Evenwel’s redistricting proposal, according to the NAACP Legal Defense and Educational Fund (LDF). As the civil rights organization said in a public statement about Monday’s ruling:

Indeed, appellants’ case threatened to take America’s redistricting process back to nefarious periods in our democracy similar to when Black people were counted as 3/5ths of a person for redistricting purposes and expressly excluded from the body politic.

The “Three-Fifths Compromise” LDF references was a deal passed during the Constitutional Convention of 1787 to determine how to craft congressional districts for the U.S. House of Representatives. The Evenwel v. Abbott case was strictly about state and local district lines, not congressional ones, but the case shares the argument of the 1787 convention about who counts when creating districts.

Back then, the roles were reversed: Delegates from the Southern states wanted a total-population formula so that their enslaved populations would be counted. In the 1780s, it was Northern liberals who wanted districts drawn strictly by voters numbers, in order to exclude slaves—because that would have given Southern states, and their slavery-based economies, the upper hand in Congress.

The majority opinion in Evenwel v. Abbott , written by Ginsberg, grapples with this history, noting:

Concerned that Southern States would not willingly enfranchise freed slaves, and aware that “a slave’s freedom could swell his state’s population for purposes of representation in the House by one person, rather than only three-fifths,” the Framers of the Fourteenth Amendment considered at length the possibility of allocating House seats to States on the basis of voter population.

Almost a century later, Thaddeus Stevens, leader of the abolitionist Radical Republicans in Congress, introduced a constitutional amendment in December of 1865 that would have drawn districts “according to their respective legal voters.” Stevens’ proposition lost, however, which meant that a total-population formula would abide.*

These agreements did not settle the question of whether certain jurisdictions could also draw districts based on formulas other than total population, though. SCOTUS Justices Samuel Alito and Clarence Thomas pointed out in their own separate written opinions Monday that states can still use a different standard, like a voter-based one, if they want to. Alito argued that the 1787 “Three-Fifths Compromise” was not about establishing a norm on representational equality, but was really a play to reduce the power of Southern states. Meaning that, while Alito acknowledges that the Constitution’s framers settled on a total-population formula, that may have only been within the context of what to do about the nation’s enslaved population.

Monday’s majority opinion and ruling does not defy Alito’s and Thomas’ assertions that voter-based formulas are not out of the question for states today. It simply doesn’t address the issue. The written opinion concludes by stating that SCOTUS “need not and do not resolve whether … States may draw districts to equalize voter-eligible population rather than total population.”

So the option is out there, if any state, county, or city ever decides to draw districts that way. That kind of redistricting has been extremely rare over the nation’s history, though, practiced mainly in certain parts of Hawaii.  

“There is a reason that every state has chosen to apportion its state legislative districts based on total population,” said ACLU legal director Steven R. Shapiro said in a public statement. “Government actions affect everyone, not just eligible voters. The argument that states are forbidden from treating everyone equally for redistricting purposes never made any constitutional sense.”

Responding to today’s Evenwel v. Abbott ruling, the election law expert Rick Hasen wrote on his blog that “to require voter population was not only at odds with historical practice, it was not practically possible given the data that we have, and it would have led to terrible outcomes, including making it basically impossible to also comply with Voting Rights Act requirements for districts.”

It’s interesting how the calculus has changed over the centuries on political representation: From favoring counting the enslaved (though they couldn’t vote) to opposing counting children and non-citizens today—just as Latinos and people of color in general are increasingly becoming majorities in many districts. White, Southern conservatives seem to only want to count people of color when it’s convenient for them.

*CORRECTION: This post has been updated to add the context of Thaddeus Stevens’ 1865 proposed constitutional amendment to draw districts according to legal voters rather than total population.

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