COMMENTARY: Not a citizen? Not a person


I see a clear method to the apparent madness of Texas redistricting. I fear that Texas is moving toward redistricting based on voter population only — disadvantaging minorities — rather than respecting and acknowledging all people in the state.

We need to review the United States Constitution, U.S. Supreme Court cases, federal legislation, Texas legislative initiatives and the national developments on redistricting to see the method in the madness.

The U.S. Constitution in 1789 allocated seats in the House of Representatives to states based on the total population of each state. However, the number included only three-fifths of the number of slaves — an original sin embedded in the Constitution. After the Civil War, the 14th Amendment to the Constitution required that representatives be apportioned among the “several states according to their respective numbers, counting the whole number of persons in each state.” In the 1960s the Supreme Court required that redistricting be based on total population in each district. The court required congressional districts to contain virtually no deviation among the total populations. Meanwhile, Congress passed the Voting Rights Act (VRA) in 1965, applied the VRA to Texas in 1975 and continued the Act in 1982 and again in 2006. The Supreme Court held the VRA constitutional in 1966, 1973, 1980 and 1999. It was the most effective tool to prevent states and localities from diluting minorities’ votes.

Unfortunately, all these protections are under attack by those who wish to dilute the vote of minority people, especially Latinos, in the election of Congress, as well as state senators, state representatives and local officials.

If one looks at the Supreme Court cases, federal administration proposals to change the census, as well as state initiatives, one might think that there is just a set of independent movements away from equal population redistricting toward districting based only on citizenship. Unfortunately, whether by coordination among the branches of government, or merely exploitation of favorable developments, there is a clear movement toward basing redistricting on the number of voters or the number of citizens in each district rather than the number of human beings in each district.

In 2008, a Texas water district sued the U.S. to declare the VRA unconstitutional. Based on some administrative regulations, the Supreme Court in 2009 upheld the VRA at that time. However, Chief Justice John Roberts, in effect, invited further litigation against the VRA by outlining arguments that might hold it unconstitutional. Justice Clarence Thomas went even further and argued that the Act was unconstitutional.

Opponents of minority voting rights were quick to react. Alabama filed a case which resulted in the 2013 Supreme Court gutting of the VRA. By a 5-4 vote (with the five Republican-appointed justices voting to strike the Act and the four Democratic-appointed justices voting to uphold it), the Supreme Court held that the preclearance provisions of the VRA, the most powerful and useful part of the act, was unconstitutional because it was based on old data and did not sufficiently respect the covered states. The Supreme Court held the VRA unconstitutional even though Congressional members, based on a depressingly extensive record of voting abuses, had just overwhelmingly voted to continue the act in 2006. Based on a blatant rejection of the conservative argument that the court should respect the will of the people expressed through elected representatives, the court regarded this vote of Congress as just politics.

The loss of the VRA preclearance provisions is particularly damaging in the context of changing the methods of counting persons for redistricting. Under the VRA, states like Texas must show that voting changes do not have a discriminatory effect and that the changes were not intended to be discriminatory. There is simply no way that Texas could meet its obligations under the VRA to show that a redistricting plan, based on counts of citizens only, did not have this discriminatory intent to or effect of discrimination against minority communities. Due to the Supreme Court’s 2013 decision, that VRA protection is gone.

Several East Texans filed a case seeking to force the Texas Legislature to redistrict based on either number of voters or citizenship, not on total population. This led to a 2016 U.S. Supreme Court case upholding the right of Texas to redistrict based on total population. Unfortunately, the case did not decide a very important issue — whether states and localities must redistrict based on total population. Justices Thomas and Samuel Alito wrote separate opinions, doubting total population was the appropriate basis for redistricting. More specifically, Thomas and Alito, in effect, invited a state or locality to redistrict based on the voters in the district rather than the total population in the district so that the Supreme Court could then rule whether this method of redistricting was constitutional. Texas, the defendant in the litigation, should have simply asked the Supreme Court to approve their redistricting plans. Instead, Texas asked the Supreme Court to approve the theory of redistricting based on voter-eligible population rather than total population, a request the Supreme Court denied.

Several states were quick to see the opening to further dilute minority voting rights. Alabama has sued the U.S. government arguing that the allocation of congressional seats among states should not be based on total population but only on citizen population. The Missouri Legislature has passed a proposed Constitutional amendment to require redistricting be based on citizen population, not on total population. Nebraska is considering a bill to require future redistricting be based on citizen population. I predict there will be proposals in the 2019 Texas Legislature to require future redistricting to be based on citizen population. And surely there will be proposals in the 2021 legislature to adopt statewide plans for Senate, House and State Board of Education districts based on citizen population rather than total population.

President Donald Trump’s administration has proposed adding a question on the census to determine the citizenship status of every person counted in the census. This proposal is an anti-immigrant provision designed to identify persons who are noncitizens for future deportation. However, this proposal is also designed to give information to states and localities to redistrict based on citizenship status rather than on total population. Presently, the census provides information for only a small sample of the total population on the citizenship question. Knowing the citizenship status of every person in the U.S. would allow redistricting by excluding all noncitizens.

A citizenship question on the census is sure to depress the counts of persons in minority neighborhoods where fear of immigration consequences will outweigh efforts to get a full count of people. This will move federal and state funding away from neighborhoods that most need the funds as well as the cities and states where they reside. There will be schools and highways to build and teachers, police and firefighters to pay regardless of the undercount of humans by the census.

So why does this matter? Redistricting based on citizenship status treats noncitizens as non-persons. A proposal to base redistricting on actual voters treats children, permanent residents, the physically disabled and the undocumented as non-entities, not deserving representation on our public bodies. Such proposals would weigh redistricting heavily toward white middle-class communities and away from minority and young communities. In Texas in particular, urban areas and the Texas border area would suffer significant losses of Senate, House and State Board of Education seats. We Texans know that there is a strong relationship between these populations and the partisan divide in our state.

One political party controls the Texas Legislature, Texas executive branch, Texas Supreme Court, the U.S. administration and soon the Supreme Court. There will clearly be efforts, sometimes coordinated, to continue one party control of all parts of the government. That is what is happening here. The anti-voting rights decisions and invitations to further litigation by Republican-appointed justices, litigation brought by Republicans in Texas, the Republican proposal to add citizenship questions to every census form, could be a coincidence. We should be skeptical that these developments are coincidences and not carefully orchestrated efforts to change voting results and our government itself.

If the U.S. Supreme Court does decide that states should redistrict based on either actual voters, citizen voting age population or citizenship there will be an absolute flood of litigation against every redistricting plan in the U.S., from small school boards to cities and counties to states. Such a radical change in the structure of our voting would cause incredible disruptions in state legislatures, local governments, funding and our democracy itself. We must watch these developments closely and oppose them when they are proposed.

Al Kauffman is a professor of law at St. Mary’s University School of Law. He writes for The Monitor’s Board of Contributors.