This morning, the Supreme Court heard oral argument in the case of Evenwel v. Abbott, a huge case about a fundamental question that goes to the very heart of our Constitution’s system of representative democracy. Who counts when states draw election districts—all the people or only voters? The case was initiated by activists who seek to empower certain voters at the expense of the entire population, which in Texas would tilt power toward more rural and, yes, conservative areas of the state. But the Constitution settles this question, and Evenwel should begin and end with the text and history of the Constitution. The Constitution guarantees equal representation for equal numbers of people. Our Constitution is based on the idea that all persons—whether or not they are voters—should be represented in our democracy. This is apparent in the Census Clause, which requires an “actual Enumeration” of all the people of the nation for purposes of federal representation, the disbursement of federal funds, and other ends. It is also contained in the Fourteenth Amendment, which requires “counting the whole number of persons in each State” and guarantees “equal protection of the laws” to any “person,” not merely voters. In these and other ways, the Constitution is clear: Ours is a representative democracy open to all. Indeed, Sue Evenwel’s argument that representation should be based only on the voting population was flatly rejected during the debates over the Fourteenth Amendment, when the amendment’s framers reaffirmed total population as the Constitution’s system of representation.
This point was powerfully driven home during this morning’s argument by Justice Elena Kagan, who demonstrated that “the framers of the Fourteenth Amendment explicitly considered this issue” and made a “clear, explicit choice” in favor of “equal representation” as a constitutional rule, ensuring that all persons would have their voices represented in the democratic process. Quoting Senator Jacob Howard—one of the most influential of those responsible for drafting the amendment—Justice Kagan made plain that the Fourteenth Amendment adopted the total population rule as the “most just and satisfactory” rule for our Constitution’s system of democracy: “Numbers; not voters; numbers; not property; this is the theory of the Constitution.” Justice Kagan’s questioning showed that, when it comes to the ground rules of our democracy, the Constitution is fundamentally a progressive document, ensuring a multiracial democracy is which all persons—not merely voters—are entitled to equal representation.