If Trump’s Executive Order Ends Up Creating Better Citizenship Data, Could It Be Used by States to Draw CONGRESSIONAL Districts with Equal Numbers of Voter Eligible Persons (and Not Total Population)? Would It Allow for Use in State and Local Districts?

In earlier posts, and in a Slate piece, I explained that both the original reason for trying to include the citizenship question on the census and Trump’s executive order issued yesterday was to allow states to try to draw districts with equal numbers of voter-eligible persons, rather than equal numbers of all people. As the Hofeller memo explains, drawing districts in this way would increase white, non-Hispanic Republican voting power. Trump pointed to this as one of the reasons for his alternative approach of gathering better citizenship data:

Fourth, it may be open to States to design State and local
legislative districts based on the population of voter-eligible
citizens. In Evenwel v. Abbott, 136 S. Ct. 1120 (2016), the Supreme
Court left open the question whether “States may draw districts to
equalize voter-eligible population rather than total population.”
Some States, such as Texas, have argued that “jurisdictions may,
consistent with the Equal Protection Clause, design districts using
any population baseline — including total population and
voter-eligible population — so long as the choice is rational and
not invidiously discriminatory”. Some courts, based on Supreme Court
precedent, have agreed that State districting plans may exclude
individuals who are ineligible to vote. Whether that approach is
permissible will be resolved when a State actually proposes a
districting plan based on the voter-eligible population. But because
eligibility to vote depends in part on citizenship, States could more
effectively exercise this option with a more accurate and complete
count of the citizen population.

The approach raises two questions.

First, would the data on citizenship that government agencies will now collect be granular enough to allow for the drawing of voter-eligible equal districts? It seems to me this is an open question. Given Evenwel and what we know about the position of the Justices, there are at least three Justices (Alito, Gorsuch, and Thomas) who would have no problem accepting redistricting with less data (or perhaps no data at all—it is not clear whether Alito and Gorusch really agree with the one person, one vote standard, and Thomas is a no). For those Justices who would care about whether the data is good enough, I think this would need to be determined by the courts.

Second, Assuming drawing districts with voter eligible persons is allowed, and assuming the data are good enough, could the lines be drawn for use in creating new congressional districts? (Note that Trump’s executive order speaks only about using them for state and local districts.) I have always taken this to be an open question following Evenwel, but others, including Marty Lederman, believe that the 1964 case Wesberry v. Sanders and language in Evenwel itself requires the use of total population for Congressional districts. (The part of Evenwel at issue reads: “Appellants ask us to find in the Fourteenth Amendment’s Equal Protection Clause a rule inconsistent with this “theory of the Constitution.” But, as the Court recognized in Wesberry, this theory underlies not just the method of allocating House seats to States; it applies as well to the method of apportioning legislative seats within States.”).

I’m not sure I agree with this view, and would have to do more research on whether I think Wesberry and Evenwel settle this question. This could end up in the courts after the 2020 round of redistricting.

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