Data currently unavailable for “one person, one vote” Supreme Court case

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On Tuesday, the Supreme Court announced that it will reconsider whether one person really does equal one vote, as plaintiffs in Evenwel v. Abbott argue that the current standard of using total population to determine legislative districts gives unfair electoral advantages to people who can’t vote.

The “one person, one vote” principle was established in 1964, and since then it has been held that states are allowed to decide for themselves how best to implement it. Like Texas, most have chosen total population. If the Court sides with the plaintiffs in Evenwel, it could potentially force states to redraw their maps based on the number of eligible voters as opposed to overall numbers of people.

There are a number of moral and theoretical reasons why the eligible voter standard would be worse than the total population standard: It would make it harder to draw majority-minority districts in accordance with the Voting Rights Act; it would unfairly disenfranchise felons, children and the mentally incapacitated who, while citizens, are ineligible to vote; and, perhaps most importantly, it would redefine the idea of “representation,” suggesting that elected officials don’t necessarily represent everyone to whom the laws they craft apply, and instead only represent those who are eligible to vote for them.

But even if none of that were the case — even if plaintiffs in Evenwel stood squarely on the right side of this argument — they would still have a major practical problem: The data necessary to implement the eligible voter standard doesn’t currently exist.

As FiveThirtyEight‘s Leah Libresco notes, the total population figures currently used to draw district lines come from Census data (as the Constitution suggests it should), and those figures include everyone, including prisoners, felons, children, the mentally incapacitated and non-citizens. One could easily remove children from the estimate by subtracting everyone under the age of 18, but that only gets you the voting age population, not the eligible voter population that the plaintiffs in Evenwel are advocating. After all, they’re trying to disenfranchise non-citizens, not children.

The Supreme Court, via Wikimedia Commons

Libresco goes on to suggest that the American Community Survey, a supplemental survey that does ask respondents about citizenship, could potentially be combined with Census data to get an estimate on voting age citizens within given boundaries. But again, not all citizens are eligible to vote, and the ACS does not ask about criminal record or mental capacity. (She also notes that if House Republicans had their way in 2012, the ACS wouldn’t exist.)

This poses a problem for the eligible voter standard given how massive the United States’s prison population is. There are 21 counties in which prisoners comprise at least 20 percent of the total population, and only two states — Vermont and Maine — allow prisoners to vote. Add to this the fact that many of these prisoners will remain ineligible to vote long after they are released from prison — in many cases never having their rights restored — and it becomes nearly impossible to calculate the eligible voter population based on data currently collected by the Census Bureau.

All this being the case, the Court will be ruling on more than whether “one person, one vote” really means “one eligible voter, one vote” this coming October; it will be ruling on what data the Census Bureau is constitutionally obligated to collect every ten years. If they decide that non-voters should be excluded from district apportionment, get ready for a few extra questions on your survey next time around.

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