“We the People, or We the Voters?”

Joey Fishkin:

Our Constitution, as amended, requires that every ten years the federal government reallocate seats in the House of Representatives to the states “according to their respective numbers, counting the whole number of persons.”  This provision leaves little room for interpretation.  It is part of what my colleague Sandy Levinson calls the “constitution of settlement.”  But like much of the constitution of settlement, this provision settles certain questions while leaving other closely proximate ones unsettled.  The settled part is this: We do not apportion representatives to states on the basis of how many citizens, voting age citizens, eligible voters, or registered voters the state may have.  Instead we use total population.  Under our Constitution, for purposes of congressional apportionment, we count children, non-citizens, disenfranchised felons, and all other non-voters.  If you are living in a U.S. state, and you are a person rather than a tree, you count.

This makes a huge difference.  These days, the total population rule in the Constitution moves power within Congress in a distinctly Southwesterly direction, compared to where it would be if we didn’t count all those children and non-citizens.  According to my back of the envelope calculations, if we apportioned House seats by citizen voting age population (CVAP), my state of Texas would immediately lose four seats.  California would lose five.  Those seats would go instead to states with higher CVAP-to-total-population ratios, which is another way of saying states with fewer children and fewer immigrants—states like Pennsylvania and Montana.*  This will not happen.  Congressional apportionment by CVAP is a nativist pipe dream, unambiguously unconstitutional.

That much is settled.  But, the constitutional rule does not by its express terms settle anything else.  As a matter of political practice, and in the shadow of the constitutional rule, all U.S. states sensibly use total population, as well, for drawing congressional district lines within states—and also for their own state and local iterations of apportionment and redistricting.  But conservative policy entrepreneurs have begun to challenge this practice, beginning at the state and local level.  Ed Blum, the great conservative impact-litigation impresario, brought the case of Evenwel v. Abbott to the Supreme Court in 2016, challenging Texas’ use of total population for state legislative districting.  He lost, but in a way that did not entirely resolve the question of what would happen if he had a state or local government on his side.  The next logical move will be for some jurisdiction, in 2021, to attempt to use CVAP or some other less-than-total-population measure for apportionment, drawing districts with different numbers of people, but equal numbers of “voters.”**

The argument for counting voters instead of people gains its political salience from the increasing centrality of immigration to both Republican and Democratic party politics—and the increasingly clear sense that areas with lots of children and lots if immigrants support Democrats while older areas with fewer immigrants support Republicans.  But the argument gains its conceptual and legal plausibility from a different place: the strangely undertheorized nature of virtual representation—the representation of non-voters—in modern conceptions of democracy.  Or so I argue in a new essay just posted to ssrn on “Taking Virtual Representation Seriously”; I’ll say a little more about this point after the jump.

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