Last week, a unanimous Supreme Court swept away a challenge to the principle of “one person, one vote”. The challenge brought by a Texas legal advocate would have allowed Texas and other states to create legislative districts based on a count of eligible voters – and not the accepted standard of total population.

Speaking for the court, Justice Ginsberg wrote “Appellants have shown no reason for the Court to disturb the use of total population [in drawing districts]. She cited the standard’s “constitutional history” as well as “longstanding practice.”

The constitutional history, while problematic, is clear. The Constitution calls for the number of congressional districts apportioned to each state to be based on total population, updated every ten years by the census. At its inception, total population counted slaves as 3/5ths of a person, an injustice it took a civil war to rectify. It excluded altogether “untaxed” Native Americans who weren’t considered citizens until 1924 and, due to state laws, also excluded many others not eligible to vote until the 1950s.

Long standing practice is equally clear. In the early 1960s, when the Supreme Court ruled that districts must be of equal population, it did not envision a system wherein states gain or lose districts based on a full count of their residents, only to turn around and create districts based on a count of eligible voters only.

The court could not rule out another challenge. The case in front of them didn’t allow it. But they went as far as they could in affirming that legislative districts, consistent with how they are apportioned to the states, must be drawn based on the idea that legislators represent all people, not just those who vote.

“That language very firmly closes the door on the idea that trying to [use] something other than total population is a good idea,” said Nina Perales, vice president of litigation at the Mexican American Legal Defense and Educational Fund. In its decision, the court also declared it’s not only a bad idea for equal representation, but impossible to implement. Total population, while not perfect, is more reliable and easier to count then any alternative like eligible voters – a contested number that turns on rapidly changing age and immigration trends and on which states take away voting rights from which and how many ex-offenders at any given time.

Let this be settled history and a setback to future schemes to rig redistricting for partisan ends. Let’s move on to the real issue in our redistricting process – allowing incumbent legislators to design their own districts to ward off challengers for partisan gain. To practice democracy in reverse – choosing their voters before the voters get to choose them.

(more on nonpartisan redistricting solutions in two weeks)

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