The Supreme Court ruled this week that states can continue drawing election districts based on the idea of one person, one vote. The lawsuit, brought by a conservative activist group in Texas, sought to challenge the practice of drawing districts using total population numbers that include people who are ineligible to vote, notably illegal immigrants, but would also include children under the age of 18. While the court unanimously upheld the existing practice, it did not directly take up the question of whether states can change their redistricting processes to only include eligible voters.

Had the court ruled against the current practice, a massive shift in the way states draw their election districts would have ensued. The challenge would have had the most significant effect on areas with high immigrant populations like Texas, where the lawsuit originated. The appellants’ intended change would have shifted a lot of political influence from populated urban areas–which tend to have more ineligible voters like immigrants without citizenship, illegal immigrants, and children–to rural areas. That shift would also help Republicans at the expense of Democrats, whose voters tend to cluster in cities.

The challenge was brought by the Project for Fair Representation, an activist group that is also responsible for a pending challenge to the University of Texas at Austin’s use of affirmative action and recently mounted a successful legal battle against the Voting Rights Act of 1965. The group’s argument focuses largely on the idea of voter equality, claiming that counting ineligible voters when drawing districts inflates the importance of eligible voters in the district.

Texas, like all other states with some slight exceptions, uses total population numbers from the decennial census as the basis for its redistricting plans. The Constitution requires districts to have about the same number of people in them. The standard for Congressional districts is particularly strict, requiring each district to be equal in population “as nearly as is practicable.” If any Congressional district is smaller than the average district, also known as the ideal district size, then its size must be explicitly justified.

The rules are looser for state legislatures like the Texas Senate that the case targeted specifically. Court precedent requires state districts to be “substantially” equal. In practice, this means that if the size of a state’s largest district is within 10 percent of the size of the smallest district they are generally acceptable to the Constitution’s standards. There are some cases where district sizes deviate from that norm, notably to make exceptions for districts that meet minority representation requirements in accordance with the voting rights act.

Justice Ginsburg wrote the court’s opinion, joined by Chief Justice Roberts as well as Justices Kennedy, Breyer, Sotomayor, and Kagan. Justices Alito and Thomas wrote concurring opinions. In her opinion, Justice Ginsburg concludes,

Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries. Appellants have shown no reason for the Court to disturb this longstanding use of total population.

She also notes the fact that non-voters have legitimate interests in public policy as they often receive government services.

The opinion largely focuses on the fact that based on historical precedent, states should not be forced to change the ways in which they draw districts. However, in the opinion Ginsburg acknowledges that she is not ruling on whether a state could switch its redistricting process to a system that only looks at eligible voters–leaving that question open for a future legal challenge. While states will not be forced to change the way they draw districts, they could conceivably change to a system that only counts people who can vote.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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