t is a complete accident of history that the Supreme Court hears a case about whether noncitizens are to be counted when states draw legislative districts on the day after Donald Trump suggested that it’s a good idea to prohibit all Muslims from entering the United States for a while. But the fact that the former idea gets as strong a reception at the high court as it does this morning really isn’t an accident, even as it’s rather surprising. The argument that looked like nothing more than a fanciful thought experiment born of a conservative think tank could well prevail this term. In the plainest sense, Evenwel v. Abbott simply asks the court to determine whether states—in this case Texas—should apportion legislative districts by counting the total population (as determined through the census) or the number of eligible voters. The plaintiffs, Sue Evenwel and Edward Pfenninger, contend that basing apportionment on persons rather than voters violates the line of 50-year-old cases, including Reynolds v. Sims, that established the principle of “one person, one vote” the court has located in the Constitution’s Equal Protection Clause.
It’s a political idea pushed by Edward Blum, who directs the Project on Fair Representation, which spearheaded the challenge to the Voting Rights Act to the court in 2013, and is also behind the affirmative action case being argued Wednesday. If the court sides with Evenwel and accepts the view that only voters or even registered voters are to be counted when drawing district lines, children, legal residents, and people who have committed felonies or the mentally ill—all of whom are certainly affected when legislators legislate—are not to be counted for apportionment purposes. In the words of the Obama administration, which sides with Texas in this case against the two plaintiffs, whole swaths of the population become “invisible or irrelevant to our system of representative democracy.”