After the Supreme Court’s politically consequential decision in Evenwel v. Abbott this month, supporters of the principle of “one-person, one vote” breathed a sigh of relief. The Court unanimously ruled that states may continue to draw legislative districts based on total population, instead of on a new standard—the number of registered or eligible voters—that would have excluded non-citizen immigrants, youth under 18, people who are or were incarcerated, and anyone else not registered to vote.
The ruling stymied a challenge brought by conservative activists in Texas who set out to upend the practice of apportioning legislative districts based on population, which had been settled law for five decades. A ruling in the challengers’ favor could have triggered mass redrawing of legislative district lines around the country, most likely to the advantage of Republicans.
The decision did mark a victory for the principle of “one-person, one-vote” if only because it maintains the status quo. But the Evenwel decision will likely not be the final word on the matter. Justice Ruth Bader Ginsburg’s majority opinion explicitly stated that the Court did not “resolve whether, as Texas now argues, states may draw districts to equalize voter-eligible population rather than total population.” And conservatives can be expected to keep pushing for ways to exclude certain blocs of voters from the redistricting process—particularly non-citizens.
Having said all that, we expect state lawmakers—including those in the Republican-dominated Lone Star State—to be hesitant to use voter-eligible population when drawing district boundaries in the near future. Yes, the Court did not slam the door on states using a standard other than equal population when drawing their legislative districts. And yes, we are living in an era of extreme partisanship. In recent years, Republican legislatures across the country have gone to great lengths to erect barriers to voting rights and to rig legislative districts to their partisan advantage. But Republicans won’t be in a hurry to game the system and flout the “one-person, one-vote” norm.
That’s because drawing new district lines would disadvantage individual lawmakers, imposing political costs that far outweigh any benefit to the party as a whole. In a broad sense, Republicans stand to gain from a redistricting process based on eligible voters instead of on population alone. Excluding children and non-citizens from reapportionment clearly benefits Republicans, as one of the authors of this piece, political scientist Carl Klarner, has shown. But incumbent legislators want their districts to be redrawn as little as possible, to keep the connections with the constituents they have spent years cultivating. Technical obstacles will discourage Republicans from drawing lines based on registered voters instead of on population, as will the costs of defending such plans in court. But the real reason GOP state legislatures will hesitate to tinker with the status quo is self-preservation.
Indeed, redistricting processes can lead to uncertain election outcomes, and most legislators would probably prefer to avoid tough challenges if given the choice. Why would they adopt an untested standard, which might result in litigation and multiple rounds of redrawn district lines in one decade?
True, individual legislators benefit by being members of the majority party. But ironically, the regions where the Republicans would benefit most from excluding non-citizens are also the same regions where they either already have large majorities (Texas, Arizona, Virginia, and Florida), or where changing the rules to draw districts based on population is not feasible due to healthy Democratic majorities in one or both chambers (New York, New Jersey, Maryland, Illinois, California, Connecticut, and Massachusetts).
Of course, Republican state legislators in highly polarized states—such as Michigan and Wisconsin—might try to exclude non-citizens from the districting process, but the impact in these states would be small. If a new standard is to be tested, it will most likely be in either Colorado or Nevada, battleground states where Republicans might try to push through a standard other than population to draw lines that would likely result in more GOP seats, albeit only a few in the case of Colorado.
Legislative action is even less likely because changing the redistricting standard would require a constitutional amendment in 39 of 50 states. In many of these states, such as Texas and Colorado, such an amendment would require a super-majority to pass. In Nevada, a constitutional amendment requires a mere majority, but it must be approved in two separate sessions of the legislature, meaning that Democrats would get two shots at blocking it.
Since state legislators will generally be hesitant to change redistricting standards, does this mean the issue is settled? Far from it.
Many states in the Southwest would see substantial partisan impacts from excluding non-citizens, and most of them enjoy the right to mount ballot initiatives. Public opinion polls have not yet tackled the question of what standard should be used to draw legislative districts, but we suspect (at least in these Trumpian times) that a motion to exclude non-citizens from districting counts would be particularly popular with large majorities of Southwestern voters. And we can expect wealthy conservatives and outside activists to promote initiatives pushing for changes in how district lines are drawn.
Where will this happen? The state legislatures in both Colorado and Nevada are highly competitive, and both states have the ballot initiative option. Our analysis of the partisan impact of excluding non-citizens from districting counts puts Nevada at the top of the list, with more than a 2.5 percent seat advantage for Republicans. The impact in Colorado would be much smaller, but still significant. And let’s not rule out California, where a successful initiative using a non-population standard could diminish Democrats’ hold on both chambers.
Changing who is counted under a one-person, one-vote standard will not markedly alter the relative fortunes of the two major parties in most states, and state lawmakers across the country will be resistant to reconfigure their own districts. But in this era of extreme partisanship, this issue will inevitably open a new front in the ongoing election wars.
This article was posted in conjunction with the Scholars Strategy Network.