On December 8, 2015, the Supreme Court heard oral argument in Evenwel v Abbott. At issue is whether Texas, and presumably other states, must continue to use total population to divide their state’s representative districts. Commonly referred to as a debate over the meaning of “one-person, one vote,” the plaintiff’s argue that a state should be allowed to use total eligible voters instead of total population when determining representation. While attention has clearly been given to undocumented immigrants and their contribution towards total population, less has been spoken of the largest group of ineligible voters: children. During the one hour oral argument, children were mentioned twice. First, Justices Breyer and Sotomayor asked Attorney Consovoy to address the issue of children as ineligible voters, yet deserving of representation. Attorney Consovoy responded, “But children are represented at the polls. They’re represented by their parents.” Justice Sotomayor quickly asked, “How about children who are citizens when their parents are not, which is fairly common in many areas?” Consovoy simply said that they will be represented when they reach the age of 18. In other words, they are not yet entitled to any representation at the state level. Attorney Ian Gershengorn later mentioned the enormous disparities in child populations even between Brooklyn, New York, with 30% children, and neighboring Manhattan with only 9% children. Counties in Texas also have very large and growing differences in childhood population.
The Children’s Defense Fund (“CDF”) filed an amicus brief in this case. An amicus brief, or friend of the court, is a filing from a person or party with a strong interest in the outcome of the case, but who is not a direct party in the legal action. From their mission statement, the Children’s Defense Fund “provides a strong, effective, and independent voice for all the children of America who cannot vote, lobby, or speak for themselves.” They urge the Court to uphold Texas’ Senate apportionment plan, which is based upon total population, because it “ensures equal representation in the legislature for people in areas with high concentrations of children, so that state services and resources – particularly with respect to education – are allocated fairly and appropriately to those who need them most.” Several key points that the CDF makes in their brief include that 23 % of the U.S. population is children below the age of 18, and that the distribution of these ineligible voters is concentrated in certain areas. If the states were to disregard these children when determining district boundaries, voters within these districts would essentially have their votes diluted. In turn, access to services such as “quality education, health care, and services supporting children living at or below the poverty line” would be in jeopardy. It is worth noting that the education of its children is the responsibility of each state, along with their local municipalities.
The amicus brief also raises another objection in that children who are 9-17 years old, would reach the age of eligibility while the legislative districts were drawn without their inclusion. In other words, people who are approaching the age of 18, would have their vote weakened if the boundaries were set before their birthday. Such boundaries may stand for a decade.
It is important to remember that this Supreme Court case only involves state representatives and their districts. It does not involve federal elections or U.S. Congressional districts. Section 2 of the Fourteenth Amendment states, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” Of course, women were not granted the right to vote until 1920. However, women were counted in determining district boundaries even though they were not eligible voters. Justice Ruth Bader Ginsburg asked Attorney Consovoy if the United States was incorrect between 1868 and 1920 in counting women since they were ineligible to vote. Consovoy did not directly answer the question. Justice Kagan later raised her concern that the Framers of the Fourteenth Amendment were so clear in their demands that total population be used in determining districts at a federal level, yet now the Court is being asked to prohibit that very method at a state level.
A decision is expected by June.
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