For nearly half a century, American courts have looked to the “one person, one vote” standard as the guiding principle in reapportionment and redistricting cases. This doctrine, first laid forth in Reynolds v. Sims (1963), holds that “the constitutional test for the validity of districting schemes shall be one of population equality among the various districts.” Since that time the principle has become a central tenet in redistricting, and indeed as the country heads into the post-2010 round of redistricting, the courts’ understanding of one person, one vote remains largely unchanged. That is, unless one Dallas suburb can upset it.
Irving, Texas, population 191,615 as of the 2000 census, has been a hotbed of redistricting controversy in recent years. In 2009 one lawsuit by Irving’s Hispanic residents forced the city, which was 31.2 percent Hispanic as of the last census ten years ago, to replace its at-large voting scheme with a single-member district plan. Now white residents are challenging the current district map on the grounds that it dilutes their voting strength. Specifically, the plaintiffs in Lepak v. City of Irving argue that the city’s use of total population data – a figure established by the census every ten years counting all individuals present in the country – rather than the total population of citizen, voting-age residents results in unequal voting weights across districts.
The complaint largely arises out of Voting District 1, a district designed to be a majority Hispanic. Even though District 1 is relatively equal to the other five districts in terms of total population, there is, according to the plaintiff’s complaint, a significant disparity in the number of citizens of voting age between District 1 and the other five. This disparity, they claim, is a result of the fact that, according to the latest census data, approximately 60 percent of Hispanic residents in Irving are not citizens. Their claim therefore is that because a large portion of that district is not eligible to vote, those citizens who are eligible have greater voting strength than citizens in other districts where a much larger portion of the population can vote. According to the plaintiff’s calculations, votes of a citizen in district one are worth nearly twice as much as a voter in district five or six.
The thrust of the plaintiff’s argument then is that the court, in ruling the districting plan unconstitutional on equal protection grounds, should find that the use of total population as the starting point for redistricting should be replaced with citizen voting-age population. At first glance, this might seem obvious – perhaps indeed it is logical that only those who can vote should be counted when drawing voting districts. But the issue runs much deeper.
To use citizen voting-age population where total population counts have been used for decades (if not centuries), raises the larger question of what the courts really meant in expounding, expanding, and protecting the one person, one vote standard. It also raises significant public policy considerations, particularly in a place with such a large noncitizen population like Irving, or the state of Texas in general. By “person” did they mean a member of the society, which might include anyone that might have an interest in it; or did they really mean “citizen” or maybe just “voter?”
The central question comes down to whether the one person, one vote standard was intended to protect representational equality, or electoral equality. Indeed, people who cannot vote may still have an interest in their city, state, or country which might require representation. While some might say that those Hispanics who enter the country illegally should not have a say in, for example, how a city budgets its funds, there are other non-voting groups whose interests society does still attempt to represent. Perhaps the best example of this is children. As such, there is significant reason to believe that representatives are still responsive to interests of those who cannot vote, and it was the intention of the courts to make sure that the inhabitants of an area – voting citizen or not – had equal access to a representative to ensure that their preferences are heard.
On the other hand, there is also the argument that the court merely intended to protect the equal right to vote. Indeed, the courts, in establishing the one person, one vote standard, focused on protecting the fundamental right to vote. No where do they mention a fundamental right to be represented. The obvious example of this is that in a majority-rules democracy like our own, minority opinions in a given community go unrepresented every day. Thus stands strong the argument that the courts intended one “person” to mean “one person who is eligible to cast a vote.”
In either case, there are significant public policy concerns attached to recognition of citizen voting-age population. Primary among these are concerns, particularly in light of heavy Hispanic immigration in recent years, is the notion that only factoring in citizen, voting-age population, could result in an actual decrease in Hispanic representation. The argument goes that if noncitizen Hispanics are eliminated from the representation calculation overnight, those Hispanics who are citizens will be less able to form cohesive minority groups capable of electing descriptive representatives. In Irving for example, if the 60 percent of noncitizen Hispanics are removed from the calculus, it is possible that the remaining 40 percent would be unable to get the Latino city council member elected which they currently enjoy. Of course the counter argument to this would be, that they should not have enjoyed this kind of representation in the first place, but the idea of a minority group retrogressing does seem to run counter not only to public perceptions, but also the Voting Rights Act. In places like Texas and other border states, this concern is very real, as large swaths of the currently counted population could become nonfactors and Hispanics could lose city council, state assembly, and even congressional seats that they have worked to obtain in recent years.
The city of Irving may thus have sparked a very legitimate and contentious fight with implications from its own city council to the highest levels of representation. The Supreme Court has demonstrated reluctance in the past to resolve the issue of total population vs. citizen voting-age population, but perhaps the change in the social reality of increased Hispanic immigration may encourage it to take it up this time around.
Meredith McCoy is a second-year student at William & Mary Law School.
Fundamental First Principles
Virginia Declaration of Rights, June, 1776
\VI. That elections of members to serve as representatives of the people in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.\