Supreme Court Leaves Door Open to States Not Counting Aliens when Drawing Electoral Districts

By Jon Feere, April 6, 2016

In a unanimous ruling, the Supreme Court held in Evenwel v. Abbott that Texas's current methodology for drawing electoral districts based on total population is constitutionally sound. The Court did not rule on the question of whether states are required to include illegal aliens or other non-citizens when drawing districts. In fact, the Court noted that some states "have relied on the registered-voter or voter-eligible populations" for drawing districts and that 10 states already exclude some non-permanent residents.

The plaintiffs argued that because illegal aliens and other people ineligible to vote are counted, it means that the political influence of U.S. citizens is being diluted. If the districts were drawn to only count eligible voters, the districts would look considerably different and political influence amongst voters would be divvied up differently. It could also be argued that some of these state districts might not even exist but for the presence of illegal aliens and/or other non-voters.

In determining if a state has run afoul of the one person, one vote standard, a court will look at whether a state's districts are relatively similar in population size. The Court noted that where the maximum population deviation between the largest and smallest district is less than 10 percent, the state presumptively complies with the one person, one vote rule. In Texas's districts, the population deviation is around 8 percent and the Court found this perfectly reasonable.

However, if you look at only eligible voters, the population deviation exceeds a whopping 40 percent. This means that some districts are largely made up of eligible-voter citizens, and some districts are largely made up of non-citizens (including illegal aliens) and/or other people ineligible to vote. Naturally, the U.S. citizen plaintiffs are troubled that they are getting the same representation in the statehouse as a district full of people who maybe don't even belong in the country.

It's not difficult to imagine how different a state's district map would look if illegal aliens were removed from the country or simply not counted in the districting process. On the state and federal levels the presence of illegal aliens is undoubtedly warping our electoral process.

Could Texas or other states come up with a different methodology for creating districts, perhaps one that does not include illegal aliens? The Supreme Court didn't rule out that option, leaving the door open to the possibility that sometime in the future a state might count things differently, and likely bring the issue of one person, one vote to the Court, once again. The outcome, of course, will depend on who is sitting on the Supreme Court at that time.

But as it stands, the Court noted that the constitutions and statutes of 10 states — California, Delaware, Hawaii, Kansas, Maine, Maryland, Nebraska, New Hampshire, New York, and Washington — "authorize the removal of certain groups from the total-population apportionment base." The Court noted that Hawaii, Kansas, and Washington "exclude certain non-permanent residents, including nonresident members of the military."

Consider the notion that a U.S. citizen serving in the military would not be counted during Hawaii's district drawing process, but that an illegal alien who may be deported at any given moment would be. This type of a policy seems difficult to sustain or defend. It's hard to imagine that the Supreme Court would allow a state to exclude U.S. military, but not illegal aliens during the apportionment process.

A similar reshaping of our legislative process is happening on the federal level as well. Since the Census counts all people, all households in the United States, it counts illegal aliens. It is well understood that a large share of illegal aliens and other non-citizens respond to the Census and that their presence in the United States is changing how congressional seats are apportioned to the states.

There is a set number of seats in the House of Representatives, and these 435 seats are divvied up between the states based on the population of the states. That population count is based on Census data. This means that states with more non-citizens, including more illegal aliens, wind up with more House seats going to them every decade when the reapportionment process takes place. States with fewer illegal aliens often lose seats or fail to gain seats they otherwise would have.

For example, the inclusion of illegal aliens in the 2010 Census caused Louisiana, Missouri, Montana, and Ohio to each lose a seat, while Texas and Florida each gained a seat and California gained two seats. Much more about the reapportionment issue can found in our reports here and here.

Of course, the problem of illegal aliens shifting seats away from states made up largely of U.S. citizens is really a symptom of the larger problem of illegal immigration and open borders. If we enforce our laws and deport illegal aliens, the issue goes away.

More information on Evenwel v. Abbot is available at SCOTUSblog.com.