I wrote today about how if the Trump administration wins its current legal fight over the census citizenship question, the next big legal fight will be about whether that citizenship data can be used to exclude non-citizens from redistricting.
A similar case was 2016’s Evenwel v Abbott, in which the Supreme Court unanimously said that states are allowed to use total population — the metric almost universally used now — to draw state legislative districts. It didn’t answer the question of whether states are required to use total population. In concurrences, Justice Clarence Thomas said that states should be able to use which metric they use and Justice Samuel Alito said that it was an important question that another court case will need to decide.
Justin Levitt, who served in the Obama DOJ’s civil rights division and is now a Loyola Law School professor, told me that he thinks that there “are several votes” on the Supreme Court to let states exclude non-citizens from redistricting.
“But I don’t know if there are five,” he said.
An argument he and others will push, if there is a legal fight over excluding non-citizens from redistricting, is the coherent system it will create. The Constitution mandates that that congressional apportionment — i.e. the number of U.S. House seats each state gets — be based on the “whole number of persons in each State.”
“When we are allocating those, the Constitution makes it 100 percent clear that we go by total population, not by citizens or eligible voters or citizen vote-age population, but all persons,” Joseph Fishkin, a Texas Law professor, told me. “It creates some very strange effects if you start to say jurisdictions use that rule because that’s in the Constitution for allocating House seats to states, but inside states, now all of the sudden, we are going to start allocating those same house states or maybe political power through the statehouses through some completely different method.”
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