The Supreme Court agreed to take a case this week that will shape the future of American politics. Although the Warren court’s famous “one person, one vote” mandate requires states to draw up election districts with roughly equal populations, the court is only now going to determine the relevant population that must be counted.
It has two basic options. It can stick with what most states do now and require each district to contain an equal number of inhabitants: This will favor urban Democratic areas with many immigrants and children. Or it can instead insist that districts include an equal number of eligible voters, and thereby favor rural Republican regions. While the new case, Evenwel vs. Abbott, deals with state and local districting, its logic will predictably control reapportionment for the House of Representatives in 2020, with major consequences for states such as California, New York and Texas.
Given the stakes, the justices must make every effort to avoid a repeat of recent split decisions, in which five Republican appointees join against four Democratic appointees on crucial electoral issues. Their party-line decisions on campaign finance and minority voting rights have damaged the court’s credibility as an impartial defender of the democratic process. Another partisan spectacle would be especially regrettable when the Constitution speaks to the issue with remarkable clarity.
The decisive provision is Section 2 of the 14th Amendment — which follows up on the first section’s guarantee of “equal protection” with specific instructions on the basic problem confronting the Roberts court. Although Section 2 is relatively unknown today, it was of central importance to the Framers during Reconstruction. It declares that seats in the House of Representatives, and electoral votes for the presidency, “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
So long as Justice Antonin Scalia takes originalism seriously, this should be the end of the matter: It’s the “whole number of persons” that is of critical importance in divvying up House seats and Electoral College votes. Since the states get their federal representation on the basis of inhabitants, they should draw their district lines on the same basis. It’s residents, not just voting-age residents or naturalized citizens, that should count.
Constitutionalists of all persuasions often miss this basic point, because they have allowed Section 2 to sink into oblivion over the last 150 years — and that’s a shame, because this forgotten section includes a mechanism to deter the kinds of voter suppression that in recent years have become all too prevalent.
In addition to establishing a standard formula for federal representation, Section 2 also imposes draconic sanctions on any state that continues to “deny or in any way abridge” the voting rights of its eligible citizens. Under its express terms, any state maintaining exclusionary practices should suffer a proportionate reduction in the number of representatives it can send to Washington. If, for example, a state would otherwise be entitled to 10 House seats, its delegation would be reduced to six members if 40% of its citizens were black and it “denied or in any way abridged” their access to the ballot.
Section 2 was last in the spotlight in the 1890s when racial conservatives beat back a liberal Republican effort to penalize Southern states for their escalating discrimination against black voters. When Congress failed to heed the commands of the amendment, a terrible precedent was established. During later reapportionments, white Southerners managed to avoid any penalty for their near-total exclusion of blacks from the voting rolls.
This grim situation only changed when the Voting Rights Act of 1965 forced Southern states to open the ballot box to all citizens. But this great triumph of the civil rights revolution had a paradoxical consequence. Over the last half-century, activists have looked to the Voting Rights Act, not the 14th Amendment, as their basic safeguard — allowing the punitive sanctions of Section 2 to recede further into the distant past.
We can no longer afford this luxury. Since the Roberts court struck down key provisions of the Voting Rights Act in 2013, many states have filled the gap with new waves of restrictions on ballot access. They should not be allowed to escape the penalties imposed by Section 2.
The current lawsuit, then, provides the court with a special opportunity to contribute to the much larger debate that will break out in 2020 when it becomes necessary once again to reapportion House seats and Electoral College votes.
By requiring states to apportion their districts on the basis of “the whole number of persons,” the court will not only redeem the original understanding of the 14th Amendment. It will also encourage the rest of us to recognize that Section 2 makes it unconstitutional to turn a blind eye to the recent wave of exclusionary practices. States should pay a heavy political price for their misconduct.
Bruce Ackerman and Ian Ayres are professors of law at Yale, and co-authors of “Voting with Dollars: A New Paradigm for Campaign Finance.”