Civil and Human Rights

Lepak v. City of Irving: Edward Blum’s Attack on Fair Representation

Today, the Supreme Court will meet in conference to decide whether to hear Lepak v. City of Irving, a very important one-person, one vote case that raises the fundamental question whether our constitutional system ensures equal representation for citizens and non-citizens alike.  The issue in Lepak is whether the Constitution permits state and local governments to draw equally-populated districts to comply with the requirement of one person, one vote using total population figures, counting citizens and noncitizens alike.   In Lepak, plaintiffs, represented by the law firm of Wiley Rein, backed by Edward Blum’s Project of Fair Representation, are asking the Supreme Court to hold that the Constitution requires state and local governments to draw districts based on voter population, not total population.  The plaintiffs in Lepak argue that the districts drawn by the City of Irving, Texas are unconstitutional under the Court’s one-person, one-vote rule because the city counted all of the city’s residents, citizens and non-citizens alike, in drawing equally-populous districts.   Claiming that growing immigrant populations are undercutting the rights of voters, particular in states like Texas, Lepak’s Petition argues that non-citizens have to be excluded from the constitutional calculus.  If the Court agrees, it would be a radical change in the law that would turn on its head the basic ideal of representation for all persons at the very heart of our Constitution. 

This is nothing new for Blum and the Project for Fair Representation.  In Fisher v. University of Texas at Austin, the team of Blum and Wiley Rein have asked the Supreme Court to strike down the modest use of race to achieve a diverse student body at Texas’ flagship public university, ignoring that the framers of the Fourteenth Amendment were the originators of affirmative action.  In Shelby County v. Holder, Blum and Wiley Rein have urged the Supreme Court to strike down a core provision of the Voting Rights Act, turning on its head the Fifteenth Amemdment, which specifically grants to Congress broad power to prevent and deter racial discrimination in voting.  Blum hopes Lepak will be the case that remakes the concept of equal representation under the Constitution. 

Blum’s concept of fair representation cannot be squared with the Constitution’s text and history, which repeatedly recognizes that all persons – whether not they are citizens or voters – are entitled to representation and must be counted in apportioning legislative representatives.  Both at the Founding  and following passage of the Fourteenth Amendment, the American people wrote into the Constitution the fundamental principle of equal representation for all persons.  For good reason, no court in the history of American law has ever accepted Blum’s argument.    

Article I, Section 2 of the Constitution established the principle that “[r]epresentatives . . . shall be apportioned among the several states  . . . according to their respective numbers.”  The idea championed by our Founding Fathers was that “equal numbers of people ought to have an equal n[umber] of representatives.”  After the abolition of slavery and the despised Three-Fifths Clause that added to the political power of the slave states, the Fourteenth Amendment affirmed the principal of equal representation for all persons, requiring that “[r]epresentatives shall be apportioned  among the several states according to their respective numbers, counting the whole number of persons in each State.”  Importantly, the Framers of the Fourteenth Amendment specifically considered and rejected proposals to use the number of voters as opposed to the number of people as the basis for representation.  The Framers recognized that “women, children, and other non-voting classes may have as vital an interest in the in the legislation of the country as those who actually deposit the ballot.”  As Senator Jacob Howard explained during debates over the Fourteenth Amendment, “Numbers, not voters . . . ; this is the theory of the Constitution.”  Blum’s argument that voters, not persons, are the true basis of a representative democracy is one that has been consistently rejected throughout our Constitution’s history.

Lepak is an easy case under the Constitution.  How could it possibly be unconstitutional for states and local governments to apportion representatives based on “the theory of the Constitution”?  We hope that the Court will see Lepak’s claim for what it is – an effort to subvert the Constitution’s promise of equal representation for all persons – and deny review.

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