America’s Historic Fight Over Who Deserves Representation

Trump gave up the census fight, but he’s reviving an old effort to deny minorities political power.

July 18, 2019

Cross-posted from Slate.

The Trump administration has given up on its efforts to add a controversial citizenship question to the 2020 census. Instead, the president vowed to use other methods to let states limit who gets counted when allocating political power. His efforts are helping to revive an old fight that’s erupted at particularly xenophobic periods in American history.

In the same Rose Garden press conference where President Donald Trump announced that he was waving the white flag on the citizenship question, he promised to provide states with citizenship data through alternative means—relying on Social Security, the Department of Homeland Security, and other government records to calculate the citizenship of people answering the census. His executive order states that a main reason for doing so is to let states “design … legislative districts based on the population of voter-eligible citizens.”

The long-standing practice in every state today is to draw districts based on total population, not voters. The Supreme Court reaffirmed the wisdom of this practice in the 2016 case Evenwel v. Abbott, when it rejected a lawsuit out of Texas seeking to require states to consider only voters (though it left open the possibility states might voluntarily choose to count only voters). But new challenges are likely to reach the Supreme Court in the next few years. The state of Alabama and Rep. Mo Brooks are currently suing to force the Census Bureau to exclude undocumented immigrants from the population figures used to award congressional districts to states, and one or more states may try to take advantage of the opening left by Evenwel to draw districts based on voters or citizens rather the people.

These efforts fly in the face of more than two centuries of American practice.

For Alexander Hamilton, James Madison, and the rest of the founding generation, representation and voting were distinct things. One of the rallying cries of the American Revolution, after all, was “No taxation without representation.” At the time of the Constitution’s adoption, only a fraction of adult white men could vote because of onerous property requirements. But there was never a question that men who couldn’t vote nonetheless had a right to petition for redress of grievances, to speak up at town halls, and to otherwise be represented. Similarly, there was no question that women and children were entitled to representation despite the fact they couldn’t vote. Even slaves were included in the numbers used for congressional apportionment, albeit only at a three-fifths rate.

In the years that followed, the practice of counting everyone developed into the American norm. Congress almost uniformly required that territorial legislatures be apportioned on the basis of total population, as did all but 17 of 123 state constitutions adopted between 1776 and 1920.

As my colleagues and I noted in an amicus brief by the Brennan Center in Evenwel, the rare exceptions occurred when states wanted to target the political power of unpopular groups, be it Mormons in Idaho (with their large families), Irish immigrants in New York, or the Chinese in California.

The language used in these arguments eerily echoes some of the same virulent rhetoric being voiced today. In New York, for example, supporters of a change to the state constitution in 1821 to exclude “aliens” from apportionment argued that the growing immigrant population of New York City was “unsound” and that including them in redistricting counts would be “injurious if not dangerous to the independence of the country.” Similarly, California’s 1879 constitution provided that “persons who are not eligible to become citizens of the United States, under the naturalization laws, shall not be counted as forming a part of the population of any district”—a move directly targeting the Chinese who were barred under federal law from becoming U.S. citizens at the time.

These instances are outliers, however. And although there have been several attempts over the nation’s two centuries of history for a big change to the practice of counting everyone, they were forcefully cast aside by the same logic that drove the Framers.

In the aftermath of the Civil War, some Northern members of Congress wanted to change apportionment rules so that congressional seats would be allocated to states based on “legal voters” rather than population (arguing that this would limit the power of readmitted Southern states). But Rep. James Blaine of Maine powerfully argued that counting people, not voters, was “the true basis of representation” and that “women, children, and other nonvoting classes may have as vital an interest in the legislation of the country as those who actually deposit a ballot.”

A bigger effort to change who counts came in the 1920s, after a massive wave of immigration from southern and eastern Europe. For nearly a decade, a number of federal lawmakers tried to tinker with the basis of apportionment to favor “more distinctly American” parts of the country. But echoing the founding generation, Sen. Sam Bratton of New Mexico countered that the Constitution was based “upon the theory that aliens were subject to taxation in this country and consequently entitled to representation as a corresponding right.” Congressman and future New York City Mayor Fiorello LaGuardia went further, warning that excluding immigrants from apportionment was a dangerous step that would open the door to excluding other people deemed by those in power to be undesirable. And although the 1920s were an era of considerable anti-immigrant hostility, these efforts to change the basis for apportionment also went down to defeat.

By encouraging a shift away from counting everyone, the Trump administration is pushing for a cynical power grab that would take representation away from the urban and suburban areas where most Americans live and boost representation in more sparsely populated regions. The result would be devastating—and not just for communities of color or for Democrats. Republican districts in the fast-growing suburbs of Dallas, Phoenix, and other cities would be underpopulated and likely would have to stretch into more rural parts of states to join communities together that have little in common. Indeed, in many ways, the move would re-create the disparities that existed before the Supreme Court’s reapportionment revolution of the 1960s, which for the first time saw courts intervene to strictly enforce equal-population requirements. At the start of the 1960s, 40 percent of the population of California lived in Los Angeles County, but because of rules that gave every county the same representation, the county had only 2.5 percent of the state’s Senate seats.

In 1964, the Supreme Court held that “legislators represent people, not tree or acres” and helped restore the nation’s legislative bodies to the Framers’ vision of legislatures as a “miniature, an exact portrait of the people at large.” Americans of all political stripes should resist efforts to go backward.