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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.