Misleading 538 Headline on the Effect of Evenwel on Congressional Reapportionment

538 has a post, The Supreme Court Could Give The GOP Another 8 Seats In Congress, by the very smart David Wassernman and Harry Enten, but its headline is quite misleading.

As I’ve explained at Slateat stake in the Evenwel case is whether state legislative districts might have to be redrawn to take into account total numbers of (eligible or registered) voters, rather than total population. This could hurt Latino representation (and have other effects) within state legislatures.

It is possible, but not necessarily certain, that such a ruling could be extended to districting of congressional districts within states.

However, as I explained in a post, No, The Evenwel Case Does Not Put the Apportionment of Congressional Districts to the States in Play, it is extremely unlikely such a rule would apply to the apportionment of congressional districts among states.  That’s because of how the Constitution sets forth the means of apportionment.

Yet the headline at 538 saying 8 states could shift to GOP is premised on the idea that the Supreme Court would put this up for grabs.  If you read the article, however, it admits it is very unlikely to happen before going through an extensive analysis:

A move toward counting only eligible voters, as logistically difficult as it may be, would drastically shift political power away from the urban environs with minorities and noncitizens, and toward whiter areas with larger native-born populations. That’s bad news for Democrats: Of the 50 congressional districts with the lowest shares of eligible voters, 41 are occupied by Democrats (nearly all are Latino-majority seats). Meanwhile, of the 50 districts with the highest shares of eligible voters, 38 are represented by the GOP.

Most legal scholars are skeptical that this case will change the way House seats and Electoral College votes are apportioned to states every 10 years; after all, the Constitution pretty clearly references the role of the Census’s population count in this process.

But let’s lay out a hypothetical for a minute. What would happen if counts ofvoters rather than people were used for both reapportionment (allotting seats among the states) and redistricting (drawing boundaries within states)? States with large Latino populations would be penalized. Based on the 2013 ACS data, California would lose six House seats, Texas would lose four and New York one, while a smattering of other states would each gain one seat.

Very, very misleading.

UPDATE: To its credit, 538 has changed the headline to: The Supreme Court Could Transfer A Lot Of Political Power Away From Cities and added this update:

UPDATE (May 29, 7:53 p.m.): Rick Hasen, an election law professor at the University of California, Irvine, pointed out that the original headline on this article gave the impression this case was likely to change the apportionment of House seats and Electoral College votes. As the story points out, such a change is unlikely. We’ve changed the headline to avoid any confusion.

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