In a victory for both noncitizens and common sense alike, the U.S. Supreme Court on Monday rejected the argument that state election districts must be drawn equally based on eligible voters rather than population. The court’s decision staves off a xenophobic push to discount noncitizens, which is a good thing. But almost equally noteworthy was an opinion by Justice Samuel Alito, who was joined by Justice Clarence Thomas in saying that states could use eligible voters to redraw their districts if they wish.
Begin with the background: All states currently use population, not eligible voters, when drawing legislative districts. When it comes to congressional districts, the Constitution expressly requires the use of consensus population, not voters. And the Senate has no districts at all, a reflection of the famous compromise at the Constitutional Convention held in Philadelphia in the summer of 1787.
The Constitution is silent on how states should do their districting. But in 1964, in the landmark case of Reynolds v. Sims, the court adopted the “one person, one vote” principle and applied it to state legislative districts. Henceforth, all state legislative districts had to be made equal. A state, therefore, cannot design its own Senate in the way that the U.S. Senate is designed, ignoring population. Put another way, if it weren’t for the Framers’ compromise being written in stone, the design of the Senate would be unconstitutional under the logic of one person, one vote.
Somehow, the court has never managed to say with total clarity that the “person” in the “one person, one vote” formula was anyone living in a district, not just its eligible voters. Monday’s case arose from a clever effort by two Texans, supported by advocacy groups, to exploit that failure. They maintained, based on scattered phrases in a number of court opinions, that what’s required is actually equalization using eligible voters. The result they desired would have reduced representation in districts that have lots of recent immigrants in them. The political cast of this effort is hard to miss given our current anti-immigrant political atmosphere.
In an opinion for six justices, Justice Ruth Bader Ginsburg denied the plaintiffs’ claim. Technically, the court only needed to say that states aren’t under any obligation to use voter numbers rather than population to set districts. It didn’t need to say that the current norm of using population is the only permissible constitutional formula under the Reynolds precedent.
Yet Ginsburg, at the prompting of the solicitor general in the government’s brief, did what she could to suggest that using population wasn’t just permissible, but required. Section 2 of the 14th Amendment says that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” Ginsburg quoted Sen. Jacob Howard of Michigan, an important radical Republican during Reconstruction, explaining the meaning of this provision from the floor of the Senate: “Numbers, not voters; numbers, not property; this is the theory of the Constitution.”
She then said that the plaintiffs were seeking “a rule inconsistent with this ‘theory of the Constitution.’” That’s about as close as the court could come to saying that total population, not voters, is the only legitimate constitutional rule.
Alito wasn’t having it. He wrote a separate concurrence saying that although states should be permitted to use population to draw districts, they should also be allowed to use the total number of eligible voters.
Alito pointed out, correctly, that the two options rest on different conceptions of political representation. If total population is used, then elected representatives stand for the entire people, not just those citizens who are entitled to vote for them. If voters are used, then the idea is that representatives only stand in for potential voters — not even citizens who are ineligible to vote simply because they’re still too young.
Alito concluded that the Constitution doesn’t require choosing between these two theories of representation. In essence, he disputed Ginsburg’s adoption of Howard’s statement as constitutional doctrine.
Alito only garnered Thomas’ vote and his own for this opinion. But it’s significant nonetheless, because it remains technically possible that a state might actually rely on it to change its apportionment rules, claiming in a process that the majority opinion doesn’t exclude the possibility.
Thomas, for his part, went even further. In a separate concurrence entirely his own, he wrote that the Reynolds principle of “one person, one vote” isn’t required by the Constitution at all. Thomas spent a good deal of time analyzing statements made by James Madison and Alexander Hamilton, emphasizing that the original Framers favored both majoritarianism as well as some counter-majoritarian features, such as the Senate.
The trouble with emphasizing 1787 is that the “one person, one vote” principle comes from the 14th Amendment, ratified in 1868 — not from the original Constitution. Thomas insisted that the Reconstruction amendments didn’t change “the original understanding of republican government.” That is arguable as a historical matter. But it’s definitely wrong if you consider the way those amendments have subsequently been interpreted.
The useful feature of Thomas’ opinion is that it demonstrates how indefensible originalism can be in practice. “One person, one vote” has become a fundamental constitutional principle, one of our most important. Even if it somehow wasn’t required by the 14th Amendment in 1868, it is now.
The Constitution has grown to incorporate it. Unintentionally, Thomas is reminding us that the only alternative to a living Constitution is a dead one.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.