Data currently unavailable for “one person, one vote” Supreme Court case

On Tuesday, the Supreme Court announced that it will reconsider whether one person really does equal one vote, as plaintiffs in Evenwel v. Abbott argue that the current standard of using total population to determine legislative districts gives unfair electoral advantages to people who can’t vote.

The “one person, one vote” principle was established in 1964, and since then it has been held that states are allowed to decide for themselves how best to implement it. Like Texas, most have chosen total population. If the Court sides with the plaintiffs in Evenwel, it could potentially force states to redraw their maps based on the number of eligible voters as opposed to overall numbers of people.

There are a number of moral and theoretical reasons why the eligible voter standard would be worse than the total population standard: It would make it harder to draw majority-minority districts in accordance with the Voting Rights Act; it would unfairly disenfranchise felons, children and the mentally incapacitated who, while citizens, are ineligible to vote; and, perhaps most importantly, it would redefine the idea of “representation,” suggesting that elected officials don’t necessarily represent everyone to whom the laws they craft apply, and instead only represent those who are eligible to vote for them.

But even if none of that were the case — even if plaintiffs in Evenwel stood squarely on the right side of this argument — they would still have a major practical problem: The data necessary to implement the eligible voter standard doesn’t currently exist.

As FiveThirtyEight‘s Leah Libresco notes, the total population figures currently used to draw district lines come from Census data (as the Constitution suggests it should), and those figures include everyone, including prisoners, felons, children, the mentally incapacitated and non-citizens. One could easily remove children from the estimate by subtracting everyone under the age of 18, but that only gets you the voting age population, not the eligible voter population that the plaintiffs in Evenwel are advocating. After all, they’re trying to disenfranchise non-citizens, not children.

The Supreme Court, via Wikimedia Commons

The Supreme Court, via Wikimedia Commons

Libresco goes on to suggest that the American Community Survey, a supplemental survey that does ask respondents about citizenship, could potentially be combined with Census data to get an estimate on voting age citizens within given boundaries. But again, not all citizens are eligible to vote, and the ACS does not ask about criminal record or mental capacity. (She also notes that if House Republicans had their way in 2012, the ACS wouldn’t exist.)

This poses a problem for the eligible voter standard given how massive the United States’s prison population is. There are 21 counties in which prisoners comprise at least 20 percent of the total population, and only two states — Vermont and Maine — allow prisoners to vote. Add to this the fact that many of these prisoners will remain ineligible to vote long after they are released from prison — in many cases never having their rights restored — and it becomes nearly impossible to calculate the eligible voter population based on data currently collected by the Census Bureau.

All this being the case, the Court will be ruling on more than whether “one person, one vote” really means “one eligible voter, one vote” this coming October; it will be ruling on what data the Census Bureau is constitutionally obligated to collect every ten years. If they decide that non-voters should be excluded from district apportionment, get ready for a few extra questions on your survey next time around.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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10 Responses to “Data currently unavailable for “one person, one vote” Supreme Court case”

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  3. mf_roe says:

    The ultimate result of something like this is to diminish the number of Representatives apportioned to areas where voter suppression has worked it magic. But who cares, Joseph Stalin once say ‘It’s not the people who vote that count, it’s the people who count the votes’?

    Your vote hasn’t counted in a long time—-for the younger folks it has never counted.

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  5. BeccaM says:

    That sound you’re all hearing is the death-rattle of the American democratic republic.

  6. Indigo says:

    I read Jon’s essay twice and I still don’t exactly get the issue. One voter, one vote. Nobody else is counted in determining districts? I can’t visualize how that would come together without the obvious fudge factor, the all-American political sport of gerrymandering. If only actual voters count in determining districts, doesn’t that somehow violate the Constitution? That’s probably the question the court’s going to address. But . . . huh! I was under the impression the Founders settled on a census every decade, exactly to resolve that issue. Methinks ye oldie Constitutionne is getting wobbly in its old age.

  7. Hue-Man says:

    I don’t understand the policy reason for excluding prisoners and ex-cons. Are they “lesser” citizens? Have they lost the faculties necessary to make a decision on a ballot? How is public safety diminished by their votes? If anything, voting keeps them in touch with broader society while in prison. (I’m biased; the Canadian Supreme Court found that voting restrictions on inmates violated Section 3 of the Charter of Rights and Freedoms – Right to Vote. )

    Can we expect the conclusion that only registered voters are to be counted? Even more disenfranchisement campaigns – registration only between 2:00 PM and 3:00 PM during one weekday per quarter in a remote white neighborhood strip mall.

  8. 2patricius2 says:

    Those are excellent questions.

  9. William Collar says:

    It seems to me that we’ve had this discussion before. It was the “three-fifths” compromise. That certainly worked out well. It gets even uglier since the census is once every 10 years. Every citizen over the age of 8 and under 18 at the time of census will become eligible during that 10 year period. What about non citizens who become naturalized during that period? What about the older voters who will die? There is no good way to try to only count voters.

  10. gratuitous says:

    So if non-voters don’t count for a district’s census, will they be exempt from taxes? I mean, if you’re going to deprive someone of their rights, limit their representation, and otherwise take away rights and privileges, are they not also entitled to relief from their responsibilities under the law? If a person has no way of participating in the government and their presence in a congressional district isn’t counted, are those individuals relieved from the responsibility of supporting that government (which doesn’t count them and excludes their participation) with their tax dollars? Will districts chock full of eligible voters in proportion to their voting age population be called on to make up the difference, should the Court grant them a greater voice in governance?

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