Each week, In Theory takes on a big idea in the news and explores it from a range of perspectives. This week we’re talking about “one person, one vote.” Need a primer? Catch up here.

Richard H. Pildes is the Sudler Family Professor of Constitutional Law at New York University School of Law.

If states’ representation in Congress were tied to their number of eligible voters rather than their total population, Texas would have four fewer House representatives and California six. Both states have millions of non-citizen residents and a disproportionate share of people younger than 18.

Fortunately for Texas and California, the principle of political equality written into the Constitution’s 14th Amendment expressly recognizes that a state’s representation in the House should be based on its total population, not the number of its eligible voters alone. “The fundamental principle of representative government is one of equal representation for equal numbers of people,” the Supreme Court has said.

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But is this “fundamental principle” somehow wrong when states design their own legislatures? In the “one person, one vote” case before the Supreme Court, two voters from Texas argue that it is.

The plaintiffs in Evenwel v. Abbott insist that the Constitution requires equal numbers of eligible voters, not people, across election districts. They do not challenge the design of the House of Representatives, of course; the Constitution’s text settles that issue. But they argue that, when states draw their own election districts, the Constitution forbids them from relying on the same principle of political representation that the Constitution requires for the House.

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Currently, every state designs its election districts according to the same understanding of political equality that the Constitution applies to the House of Representatives: States aim to equalize the number of people across districts, not the number of eligible voters.

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If the Evenwel plaintiffs were to win, the practical consequence for many states would be a significant shift in power from urban areas (which tend to have greater concentrations of the young and non-citizens) to rural areas. In partisan terms, this urban-rural divide is the most fundamental one in American politics today; even in Texas, every major city voted for President Obama in 2012, as did 27 of the country’s 30 largest cities. Unfortunately, then, Evenwel is one of those cases in which the partisan consequences are obvious and stark. If the court ends up closely divided along lines that track these consequences, pundits will inevitably cast the justices they oppose as being motivated by politics.

But I consider it unlikely that the principle of “equal numbers of eligible voters between districts” will prevail, for reasons of both pragmatism and principle. As a number of former directors of the U.S. Census Bureau have explained in a brief to the court, we simply do not have the kind of accurate, reliable, up-to-date information on the locations and numbers of non-citizens on which to base redistricting.

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And as a matter of constitutional principle, states should have the discretion, at the least, to continue to decide that equal protection means ensuring equal representation for equal numbers of people. Two powerful ideas about voting and representation support this choice.

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First, representatives have to address the realities created by all those who live in their districts, not just those eligible to vote. Non-citizens and the young in places like Los Angeles and Chicago inevitably impose burdens on government services — for law enforcement, schools and the provision of basic services such as water delivery or emergency medical care. Indeed, that is part of the reason immigration is a major political issue. If representatives do not have the political power necessary to advocate for the total number of people in their districts, their ability to meet their representative obligations is dramatically curtailed.

Second, even if we focus only on eligible voters, their voting power is also significantly diminished if those ineligible to vote are not “counted” when districts are designed. Not surprisingly, the distribution of public resources correlates with the distribution of political representation. Yet if your area and mine both have 50,000 eligible voters and we each can elect one representative, but my area has an additional 50,000 non-citizens or young people, my representative doesn’t have the same power to pursue law-enforcement resources to keep my area safe as yours does for your district. Similarly, my access to my representative is diminished if I have to compete with 100,000 others in the district, but you have to compete with only 50,000.

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But the deepest issue in the case before the court is not whether states should continue to have the option of basing districts on total population. It is whether states should be constitutionally obligated to do so, as I have argued elsewhere.

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The Constitution insists that the people of Texas and California should have the number of House members that reflects the total population, not just eligible voters, of those states. The same principles of political equality and political representation suggest that states should similarly be required to design their own election districts to ensure equal representation for equal numbers of people.

The Supreme Court has held that states cannot invoke the analogy of the U.S. Senate to use the principle of “one county, one vote” to design their legislatures because the U.S. Senate was a unique historical and political compromise. But the House was designed to be the most democratic element of the national government, and its structure was based on “the fundamental principle of representative government” of “equal representation for equal numbers of people.” The Constitution should be understood to reflect that same fundamental principle when it comes to the design of state legislatures as well.

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Explore these other perspectives:

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