Voting Rights and Democracy

OP-ED: The Citizenship Question Is Dead But The Fight Isn’t Over

Now that the citizenship question is dead, the next big fight will be whether states can draw legislative lines based only on the citizen voting age population.

On the heels of the Supreme Court’s decision in Department of Commerce v. New York, President Donald Trump caved on the citizenship question, recognizing — albeit reluctantly — that he had to follow the Supreme Court’s order.

But the Trump administration is still looking to place its thumb on the scales in favor of the political power of white America. As Trump abandoned the citizenship question, he insisted that his administration would make it easier for states to draw district lines based only on citizen population by providing the data mapmakers would need to overhaul how districts are drawn. This will be very significant in 2021, when states redraw legislative lines based on the results of the 2020 census. By providing this data, President Trump hopes to change the way political power is distributed to favor rural, white America.

Changing the rules of apportionment in this way would fundamentally reshape American democracy and compromise our Constitution’s text, history and deepest values.

Two different parts of the Constitution ensure equal representation to all persons, not merely citizens.  Both Article I, Section 2 and the Fourteenth Amendment mandate that the representatives in Congress shall be apportioned among the states “according to their respective numbers, by counting the whole number of persons in each state.” The language of the Constitution protects citizens and noncitizens alike. All persons — whether or not they were citizens or voters — are to be equally represented. As Alexander Hamilton argued, this reflected that “every individual of the community at large has an equal right to the protection of the government.”

The debate over whether noncitizens should be entitled to equal representation is not new.  As history shows, during the debates over the Fourteenth Amendment (after the abolition of chattel slavery and the 3/5 compromise), many insisted that representation should be based only on citizen or voter population. But these views were decisively rejected. The Framers of the Fourteenth Amendment insisted that the “whole immigrant population should be numbered with the people and count as part of them.” Representation in the halls of Congress had to be based “on the largest basis of population, counting every man, woman and child.”  Essentially, the Fourteenth Amendment affirmed the basic idea of representation for all: “[T]he whole population is represented; that although all do not vote, yet all are heard.  That is the idea of the Constitution.”

Across the nation, from the largest state to the smallest hamlet, governments apportion on the basis of these fundamental constitutional principles, ensuring that everyone who lives in America—no matter whether they are a citizen or not — is represented in the deliberative bodies that make decisions for our country. Now, President Trump is trying to help jump start a radical shift in redistricting that would, in the words of now-deceased GOP strategist and mapmaker Tom Hofeller, “be advantageous to Republicans and non-Hispanic whites.”

President Trump is not the first to attack this long-standing tradition governing legislative apportionment. In 2014, conservative activist Ed Blum brought to the Supreme Court the Evenwel v. Abbott case, a challenge to a Texas apportionment scheme based on total population. Blum hired William Consovoy — now President’s Trump’s lawyer — to make the case that the Constitution requires states to apportion on the basis of the citizen voting age population. This spurious claim did not get a single vote, but it sets the backdrop for the upcoming fight.

In Evenwel, Justice Ruth Bader Ginsburg’s majority opinion dismissed the argument that the Constitution forbids apportionment based on total population. In a thoroughly originalist opinion, she explained that “the Framers of the Constitution and the Fourteenth Amendment comprehended” that “representatives serve all residents, not just those eligible or registered to vote.” She explained that “[b]y ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.” She found no basis for reading the Equal Protection Clause of the Fourteenth Amendment, which protects all persons from discrimination, to strip noncitizens of legislative representation.

Yet, the Court in Evenwel did not decide whether states could choose to apportion based only on the citizen voting age population — it only stated that they are not required to do so. President Trump and his allies hope that a conservative majority of the Supreme Court will abandon the fundamental constitutional principles of equal representation for all, and permit states to discriminate against noncitizens and lock them out of the political system entirely. But nothing in Evenwel suggests that principles of equal representation should be up for a vote.

Our Constitution’s text, history and values guarantee equal representation for equal numbers of people, whether they are citizens or are on their pathway to citizenship. The question now is whether we will continue to vindicate this core aspect of our Constitution’s promise of democracy.


More from Voting Rights and Democracy

Voting Rights and Democracy
U.S. Supreme Court

Brnovich v. DNC; Arizona Republican Party v. DNC

In Brnovich v. DNC and Arizona Republican Party v. DNC, the Supreme Court is considering whether Arizona’s prohibitions on out-of-precinct voting and third-party ballot collection violate Section 2 of the Voting Rights Act.
Voting Rights and Democracy
December 18, 2020

RELEASE: Census Memo A Clear Violation of the Constitution 

“The Court today is plainly wrong to avoid ruling on the merits of this case...
By: Elizabeth B. Wydra
Voting Rights and Democracy
November 30, 2020

OP-ED: The Supreme Court Must Choose Between Trump and the Constitution in the Census Case

Critics of conservative originalism have charged that it is just a fancy word used to reach...
By: David H. Gans
Voting Rights and Democracy
November 3, 2020

Be Ready for a Lengthy, Vicious Struggle

The New York Times
How will the winning candidate piece together a victory in 2020? David Byler, a data...
By: David H. Gans, By Thomas B. Edsall
Voting Rights and Democracy
October 31, 2020

OP-ED: As Previous Generations Did, Make a Plan to Vote

The right to vote is one of our most cherished fundamental rights. It is guaranteed...
By: David H. Gans
Voting Rights and Democracy
October 30, 2020

Kavanaugh’s Wisconsin Opinion Flunks Originalist Test of Constitution’s Text and History

Take Care
On Monday night, the Supreme Court, in a 5-3 decision, refused to reinstate a Wisconsin district court order...
By: Brianne J. Gorod, Charles Miller