Our Constitution, every bit amended, requires that every 10 years the federal authorities reallocate seats inwards the House of Representatives to the states “according to their respective numbers, counting the whole set out of persons.” This provision leaves petty room for interpretation. It is role of what my colleague Sandy Levinson calls the “constitution of settlement.” But similar much of the constitution of settlement, this provision settles for sure questions spell leaving other closely proximate ones unsettled. The settled role is this: We do non apportion representatives to states on the ground of how many citizens, voting historic menses citizens, eligible voters, or registered voters the ground may have. Instead nosotros utilisation total population. Under our Constitution, for purposes of congressional apportionment, nosotros count children, non-citizens, disenfranchised felons, together with all other non-voters. If you lot are living inwards a U.S. state, together with you lot are a someone rather than a tree, you lot count.
This makes a huge difference. These days, the total population dominion inwards the Constitution moves powerfulness inside Congress inwards a distinctly Southwesterly direction, compared to where it would live if nosotros didn’t count all those children together with non-citizens. According to my dorsum of the envelope calculations, if nosotros apportioned House seats past times citizen voting historic menses population (CVAP), my ground of Texas would straight off lose 4 seats. California would lose five. Those seats would become instead to states amongst higher CVAP-to-total-population ratios, which is some other way of maxim states amongst fewer children together with fewer immigrants—states similar Pennsylvania together with Montana.* This volition non happen. Congressional apportionment past times CVAP is a nativist piping dream, unambiguously unconstitutional.
That much is settled. But, the constitutional dominion does non past times its limited price settle anything else. As a affair of political practice, together with inwards the shadow of the constitutional rule, all U.S. states sensibly utilisation total population, every bit well, for drawing congressional district lines inside states—and too for their ain ground together with local iterations of apportionment together with redistricting. But conservative policy entrepreneurs have got begun to challenge this practice, kickoff at the ground together with local level. Ed Blum, the corking conservative impact-litigation impresario, brought the example of Evenwel v. Abbott to the Supreme Court inwards 2016, challenging Texas’ utilisation of total population for ground legislative districting. He lost, but inwards a way that did non solely resolve the inquiry of what would laissez passer on off if he had a ground or local authorities on his side. The adjacent logical motion volition live for some jurisdiction, inwards 2021, to endeavour to utilisation CVAP or some other less-than-total-population mensurate for apportionment, drawing districts amongst different numbers of people, but equal numbers of “voters.”**
The declaration for counting voters instead of people gains its political salience from the increasing centrality of immigration to both Republican together with Democratic political party politics—and the increasingly clear feel that areas amongst lots of children together with lots if immigrants back upwardly Democrats spell older areas amongst fewer immigrants back upwardly Republicans. But the declaration gains its conceptual together with legal plausibility from a different place: the strangely undertheorized nature of virtual representation—the representation of non-voters—in modern conceptions of democracy. Or thence I scrap inwards a novel essay just posted to ssrn on “Taking Virtual Representation Seriously”; I’ll enjoin a petty to a greater extent than close this indicate after the jump.
Meanwhile, consider a seemingly variety out laid of electrical current controversies amongst mutual political roots. Census population figures do non come upwardly out of the sky; it is Congress, together with political appointees inwards the executive branch, who ultimately determine how nosotros comport the count. What if the federal authorities redesigned its Census inwards a way deliberately calculated to skew the population numbers past times increasing the already-substantial undercount of non-citizens? Would at that topographic point live whatever legal or constitutional recourse? As I write this, at that topographic point about the Trump administration’s proposal to add together a inquiry to the Census bespeak whether you lot are a U.S. citizen. The disputation has focused (rightly) on the inquiry of whether adding this inquiry volition farther growth the undercounting of immigrant communities, amongst potentially far-reaching consequences.
What has gotten much less attending is the fact that this Census inquiry gambit is too a motion inwards the Evenwel chess game. It is an elbow grease to alter the Census itself inwards a way that aims to lay the groundwork, inwards price of data, on which some bold jurisdiction volition probable brand its bid inwards 2021 to halt worrying close counting all the people, for purposes of representation, together with instead count only the ones who tin vote. There are goodness reasons to believe this denies non-voters the equal protection of the laws. But to reckon why that could live the example requires giving some idea to the role of virtual representation inwards our democratic system. More after the jump.
In my lifetime at that topographic point have got been 2 important rounds of contestation surrounding the Census, apportionment, together with redistricting. The foremost was a scrap inwards the slowly 1990s over what was called “statistical sampling.” To brand a long story really short, the Supreme Court held in a 5-4 conclusion that the Clinton Administration was barred from using “sampling” techniques to attain a to a greater extent than scientifically accurate count. The exact boundaries of what constitutes “sampling” rest truly somewhat unclear (as explained past times Nate Persily here). But the underlying political dynamics of that scrap were perfectly clear. They were close “urban,” specially black, political powerfulness together with representation. Then every bit now, the Census consistently undercounted urban together with minority areas every bit compared to to a greater extent than suburban, whiter areas. Michael Carvin, the lawyer who fought the Census Bureau all the way to the Supreme Court together with won, explicitly lauded the Court’s conclusion at the fourth dimension past times saying it “will foreclose the Census bureau from creating statistical people” together with thereby foreclose the distribution of “a lot to a greater extent than coin together with political powerfulness to urban areas than would have got resulted from a traditional caput count.”
Fast forrad 2 decades together with we’re inwards circular two. American politics has changed somewhat; where the fundamental axis of our politics 1 time ran squarely through the handling of “urban” political power, at nowadays immigration is increasingly pivotal. When Ed Blum brought Evenwel v. Abbott to the Court, the plaintiffs’ basic declaration was straightforward: when 2 districts have got equal total population but different numbers of voters, the voters inwards the district amongst to a greater extent than voters have got a complaint. Their votes have got less “weight.” The plaintiffs hither were picking upwardly on linguistic communication the Court has long used inwards its relentless efforts to cast one-person-one-vote every bit somehow an individualistic doctrine, protecting private voters, rather than what it truly is, which is a structural protection for the political powerfulness of numerical groups of people (captured inwards the phrase, “equal representation for equal numbers of people”). As I argued a twain of years agone inwards this essay in the Yale Law Journal, at that topographic point turns out to live much less to this notion of the “weight” of a vote than meets the eye.
But the claim that each district should have got equal numbers of voters—that voters are what matters, non people—gains its conceptual together with legal forcefulness from a different place. Virtual representation—the representation of constituents who cannot vote—has ever played a large role inwards the American constitutional system. Indeed, it plays a large role inwards whatever democratic system: inwards whatever social club amongst children, at that topographic point volition ever live virtual representation. But over time, every bit to a greater extent than together with to a greater extent than people inwards America have got won the vote (which is a goodness thing!) we’ve ended upwardly amongst much less virtual representation. We have got at nowadays reached a indicate where virtual representation itself begins to seem a chip suspect. (These dynamics are the jumping-off indicate for that just-posted essay, which too examines “prison gerrymandering,” together with explores a surprising do goodness of single-member districting, every bit against alternatives such every bit proportional representation: nether prevailing atmospheric condition of geographic segregation, the single-member district oftentimes provides non-voters amongst amend virtual representation.)
But what close the citizenship inquiry on the Census? That’s the immediate indicate of disputation this month, together with if the Administration decides to accept the plunge together with add together the question, it volition do a type of harm that is extremely difficult to undo. Especially inwards combination amongst the ban on “sampling” techniques, whatever activeness (and at that topographic point are many potential actions) that reduces the likelihood that some groups volition response the Census questions volition have got the effect of skewing the fundamental ground of representation together with political powerfulness at every flat of government. Could a courtroom challenge to such a conclusion to add together a citizenship inquiry succeed? It seems unlikely, for many reasons, 1 of which is just that fourth dimension would non live on whatever challenger’s side. There’s too the fact that what is incorrect amongst adding the question, inwards constitutional terms, is almost solely a affair of governmental intent. Although really of late at that topographic point has been an uptick inwards courts’ willingness to expect behind this item curtain, it is nonetheless something courts are ordinarily abhor to probe. Taken out of context, at that topographic point is no item a priori ground to favor a baseline of non bespeak close citizenship over an option baseline of bespeak close citizenship. (Some Censuses decades agone did inquire close citizenship.) When caught betwixt 2 plausible baselines inwards this way, the only existent claw is to inquire why the authorities made its decision.
The Justice Department’s stated reason—that they desire the Census inquiry to ensure amend compliance amongst Section 2 of the Voting Rights Act—is false, together with pretty transparently so. Seeing why requires agreement how Section 2 works. Compliance amongst Section 2 requires predicting the results of elections. That’s because the VRA, every bit amended inwards 1982, turns on making for sure that nether atmospheric condition of racially polarized voting, each racial grouping has a fair chance to elect its candidates of choice. Predicting whether that volition laissez passer on off way predicting election results. That requires inferences close voter eligibility, registration, turnout, together with partisanship, past times race. Very often, litigants (including the Justice Department) nowadays courts amongst evidence to enable the estimation of the bottom-line response (who volition win the election) that begins amongst the CVAP information from the American Community Survey (ACS), an ongoing report that takes house every year. From there, litigants utilisation a serial of estimation strategies together with inferences, sometimes codified into rules of thumb, to larn inwards at predictions of which side volition probable have to a greater extent than votes inwards a proposed district. The ACS information is less fine-grained than the Census; it introduces some margin of error. So, the marrow of plausibility inwards the Justice Department’s transparently bad-faith declaration is that getting citizenship information from the Census, instead of from the ACS, would improve accuracy, together with thereby aid enforce the VRA. The work amongst this declaration is that for it to live true, it would have got to live truthful that tightening upwardly the mistake bars on CVAP would meaningfully improve our powerfulness to predict election results. It would not. Remember, the bottom line of piece of work inwards a VRA example is non CVAP itself—instead it’s who volition win the election, which requires farther inferences close registration rates together with turnout rates together with how many people volition truly vote for each side. Several links inwards that chain have got much larger mistake bars than the ones inwards the ACS; predicting who volition win elections is non an exact science. That’s why making CVAP information to a greater extent than precise past times sourcing it from the Census instead of the ACS won’t do anything cloth for Section 2 enforcement. If anything, adding a citizenship inquiry to the Census would probable brand Section 2 compliance harder rather than easier, because if the novel citizenship inquiry has whatever important effect on worsening the undercount, thereby skewing the underlying population figures, that effect would do to a greater extent than to mess upwardly Section 2 calculations than shrinking the CVAP mistake bars would improve them.
To live sure, the proffer that the Trump direction plans to a greater extent than aggressive enforcement of Section 2 of the VRA is non solely impossible on its face. After all, at that topographic point are times when shoring upwardly majority-minority seats tin redound to the partisan wages of white Republicans. But let’s live serious. When an direction stocked amongst immigration hard-liners, including at the Justice Department, decides to advise a major together with really last-minute alter to the Census flat whose obvious known effect is that it volition likely scare some immigrant households into non filling out the form, is it truly plausible to believe that this is all close innovations inwards precision Section 2 enforcement? This is what lawyers telephone telephone a pretext. But a pretext for what? At that point, a lawsuit against the Census Bureau’s decision, if it got this far, mightiness good autumn into the notorious morass of whether the existent ground for the government’s activeness had to do amongst race or partisanship.
Ok. But if to a greater extent than precise CVAP information would non materially improve Section 2 compliance, is at that topographic point some other surface area where having to a greater extent than precise information would brand a difference? Yes, at that topographic point is. It’s 1 someone 1 vote. Unlike inwards Section 2 compliance, where CVAP is just 1 link inwards a long chain that leads to a imperfectly-predicted election outcome, inwards one-person-one-vote land, fifty-fifty tiny differences matter. Today, every jurisdiction inwards the U.S. does 1 someone 1 vote past times equalizing total population. But suppose you lot wanted to attempt to switch to using CVAP. In that example it would for sure aid to have got to a greater extent than precise, Census-based CVAP data. (The Census already asks close age, thence adding citizenship yields CVAP.) I strongly suspect that the Justice Department truly has 2 reasons for pressing the Commerce Department to add together the citizenship question: first, to deliberately skew the Census population count past times worsening the undercount of immigrant households, together with second, to create the information predicate for the adjacent circular of Evenwel.
You see, 1 of the forceful objections levelled against the Evenwel plaintiffs, every bit articulated inwards this amicus brief from one-time Census directors (or to a greater extent than briefly here), is that because citizenship information is non role of the Census, there’s just no way to describe districts amongst exactly the same CVAP. We tin describe districts amongst exactly the same total population (or tolerably close) using Census data, but ACS citizenship information is non fine-grained enough. That’s no work when you’re just estimating who’s going to win an election, every bit inwards the example of Section 2 enforcement—there, you’ve got large mistake bars anyway, together with the ACS is non the master copy source of imprecision. In contrast, inwards 1 someone 1 vote world, courts tin together with do need really precise population equality, absent legitimate reasons for departures from it. Thus, do non believe Ed Blum when he argues, amongst what I imagine is natural language firmly lodged inwards cheek (although he’d deny that), “if the ACS is inadequate for the purpose of drawing districts, it’s difficult to reckon how it could live sufficient for evaluating them nether the Voting Rights Act.” He knows really good it’s non at all difficult to see. What the ACS is inadequate for is non Section 2 enforcement, but rather, pushing the envelope inwards the adjacent stage of the constitutional projection that Blum himself tried difficult to advance inwards Evenwel: the projection of recalibrating the constitutional doctrine of 1 someone 1 vote inwards a way that ditches the people together with focuses only on the voters. This projection has diverse other problems—for 1 thing, CVAP is not, inwards fact, the same every bit eligible voters, specially inwards states amongst substantial felon disenfranchisement—but 1 of import objection this projection ran into inwards the Evenwel circular of litigation was that the character of citizenship information isn’t precise plenty to brand 1 someone 1 vote work.
By adding the citizenship inquiry to the Census, the federal authorities would neutralize this item objection to some hereafter jurisdiction’s conclusion to describe districts amongst equal CVAP instead of equal population. There are plenty of other objections, of course. But removing this 1 is a recognizable motion inwards the chess game. In the inevitable adjacent example inwards what nosotros volition likely come upwardly to watch every bit the Evenwel line of piece of work of cases, the Court may live forced to appear upwardly a chip to a greater extent than squarely a inquiry that was only partly previewed inwards the back-and-forth betwixt Ginsburg’s bulk watch together with Justice Alito’s concurrence inwards Evenwel. Essentially the inquiry is this: whether, nether a Constitution that guarantees all persons the equal protection of the laws, equal numbers of people truly are entitled to equal representation—or whether instead, today, dissimilar at whatever prior instant inwards American constitutional history, representation is at nowadays exclusively for voters, together with if you lot are non one, you lot count for nothing.
*By my dorsum of the envelope calculations, if nosotros (completely unconstitutionally) apportioned theatre seats past times CVAP instead of past times total population, California would lose 5 seats, Texas would lose 4, together with the states that would larn those seats would likely live (one each to) Louisiana, Minnesota, Missouri, Montana, Ohio, Oregon, Pennsylvania, Rhode Island, together with Virginia. Note that for purposes of this calculation, I used the most electrical current available mid-decade information I could uncovering for both total population together with CVAP. I didn’t attempt to dig upwardly the information that would have got been available inwards 2011. Thus, my baseline hither is non the existent electrical current House of Representatives, but instead, the House that we’d larn amongst today’s mid-decade total population numbers, which is slightly different inwards a twain of places; notably Rhode Island would live downward a House seat, which switching to CVAP would together with thence restore to two.
**The quotation marks are at that topographic point because CVAP is non the same every bit voters, every bit discussed after inwards this post—and no mensurate truly gives us buy on a vote’s “weight.”
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