The Supreme Court will hold a hearing Friday, in Lepak vs. City of Irving, to decide if it will take a case on whether the principle of “one person, one vote” should be clarified to allow the exclusion of noncitizens.
“One person, one vote” means using the entire population to draw districts so that each voter is as equal as possible. Petitioners argue that counting noncitizens dilutes the influence of eligible voters. To take an extreme case for illustration: A district may have one citizen and 99 noncitizens, while another may have 100 citizens and no noncitizens, making a vote count 100 times more in the former district than in the latter.
Others, however, argue that the United States has, from its founding, counted all persons for purposes of representation, including those who did not have the right to vote. Allowing the exclusion of noncitizens, they argue, would violate legal precedent and would probably cause massive social upheaval.
California has a lot at stake in this debate, given its relatively high proportion of noncitizens in the resident population (15%, compared with the national rate of 7%). Latino and Asian Americans have a lot at stake as well, although for the noncitizen members of those groups, the effects of excluding them from the drawing of districts would be manifested in indirect ways.
One way to see the effects of noncitizen exclusion is to ask what it might do to the state apportionment of congressional seats. We can calculate these effects by applying this criterion to 2010 data from the U.S. Census Bureau.
If noncitizens had been excluded in the 2010 apportionment, a total of 10 House seats would have been allocated differently, with California losing the most (five seats), followed by Texas (two seats) and Florida, New York and Washington (one each). If the logic of counting only enfranchised populations today were extended further -- to also exclude children and other voting-ineligible populations such as prisoners -- a total of 13 seats would be allocated differently than they are today, with California losing six seats, Texas losing five and Florida and Georgia losing one each.
Thus, the allocation of seats based on citizenship or voting eligibility would have a significant impact on House representation for California and Texas. It would have clear partisan implications as well, as most of the states gaining from such a policy shift would be Republican states and most of the losses would occur in Democratic states.
Given the potential for far-reaching changes in state power, it is unlikely that the Supreme Court will decide in a way that leads to significant losses to particular states. This is especially so given centuries of legal precedent. For purposes of congres- sional apportionment, the United States has, since its founding, counted persons who were unable to vote, including women, children, noncitizens and three-fifths of slaves before the Civil War.
But even if the court takes the case and leaves congressional apportionment alone, it could still allow the drawing of state and local districts to exclude noncitizens and other ineligible voters. Such a move could also cause significant political upheaval. In states that choose to exclude noncitizens from the drawing of representative districts, places with relatively high proportions of noncitizens, such as dense urban areas and agricultural regions with immigrant workers, would lose political power in state legislatures.
A similar dynamic would take place in city and county governments that chose to exclude noncitizens. The magnitude of these district changes within high- immigration states such as California, Texas and New York would be far greater than the impact on congressional apportionment across states.
But what about the noncitizens themselves? Some might argue they would have nothing to lose, as they are currently unable to vote in state elections and in nearly all local contests. Thus, representatives in districts with a high proportion of noncitizens may have no incentive to pay attention to the concerns of their noncitizen constituents, much like representatives from slave-heavy districts were representing the interests of slaveholders and not the slaves themselves.
Although the analogy of slavery and representation is tempting, it is not applicable now. Today, many places have noncitizens and citizens of the same race (mostly Latino or Asian American) who share similar preferences on issues such as immigration and education.
Thus, noncitizens get some measure of political representation by proxy, through citizens in their district who share their preferences. And the public benefits that representatives bring to their districts, in the form of infrastructure projects and spending on public health and education, are more likely to be accessible to noncitizens today than to the slaves of yesteryear.
Even if noncitizens would not personally lose any voting power under districting plans that exclude them, they would stand to lose access to public benefits and some measure of policy influence as their numbers get diluted in new districts based solely on the voting-eligible population.
So, even a limited change in the current rules -- leaving congressional representation alone but allowing states and local governments to exclude noncitizens from the drawing of political districts -- would cause significant political upheaval, to elected representatives with significant noncitizen constituencies and to the immigrants living in those districts.