One Man, One Vote in Texas

Hand of a person casting a ballot at a polling station during voting.New litigation in Texas threatens to undermine a basic principle of our constitutional design: that our elected officials represent all of us. The President of the United States represents all of us—even if we didn’t vote for him; even if we didn’t vote at all, even if we were not yet born when he was elected, and even if we just moved here a few months ago. Our representatives in Congress, in the state legislature, and in local government do the same, within their respective jurisdictions. It would be a rather cramped view of representative government to think that representatives only represent those whose votes they won and nobody else’s.

The U.S. Constitution deeply embraced two principles of representation. The first is that representation could take different forms. Elected officials could represent the people within a state, or they could represent a state; they could be elected by the people, or by state legislatures, or by a group of (ideally) dispassionate electors. And the second is that representation of the people includes all the people. Even though states may have excluded women, or non-landholders, or children, or felons from the franchise, apportionment for the House of Representatives would occur after the U.S. Census enumerated the number of “persons” in each state. The Fourteenth Amendment enacted during Reconstruction was consistent with this understanding. And the several states embraced similar principles in their own constitutions and laws.

Subsequent events, as the American experiment unfolded, somewhat altered these principles.

First, constitutional amendments and state practices have turned all of our federal elections into actual or (apologies to the Electoral College) essentially direct elections by the people. But in 1964, the U. S. Supreme Court went even further and implemented its own principle of representative government upon all 50 states in Reynolds v. Sims under the catch-phrase “one person, one vote.” The Court forced states to abandon any geography-based districts (à la the U.S. Senate) and instead draw legislative districts solely on the basis of population.

Second, there remains today only a fairly small population that is ineligible to vote. Constitutional amendments and state laws broadly expanded the franchise, leaving few people disenfranchised—in most places non-residents, children, felons, some ex-felons, the mentally ill, resident aliens, and illegal immigrants.

States have gone about drawing legislative districts with some flexibility, operating within the Court’s “one person, one vote” mandate. If states want to draw districts based on total population, it is within their authority. If they want to draw districts based on a more granular measure, such as citizen voting-age population, they may do that, too. In Burns v. Richardson (1966), the Warren Court distanced itself from further refinement of its political principle, concluding that “the decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.”

For the last 50 years, most states have used total population as the basis for drawing political districts for their legislatures. They do so for understandable reasons. It is a simple measure derived directly from Census data. It does not rely on survey data disclosing a person’s age or citizenship status, which might be less reliable than an actual enumeration. And it embodies one fairly common view of representative government: that representatives represent people, not simply voters or eligible voters. The total population approach is not universally embraced, of course. And states have varied in their district-drawing under permissive judicial precedent.

Enter a challenge to this characteristically federalist system. The Supreme Court recently agreed to hear Evenwel v. Abbott, in which the plaintiffs argue that Texas is constitutionally forbidden from drawing districts based on total population. Instead, they claim, Texas must draw districts with equal numbers of voters.

The lawsuit is motivated in no small part by a desire to exclude Texas’s sizeable non-citizen population, whether resident alien or illegal immigrant. Texas’s state legislative districts have equal population, but some contain far more eligible voters than others when one accounts for citizenship status.

It might be that population-based redistricting in Texas, and for that matter in most states, is unwise for this reason. The argument that these practices are quite administrable and wholly consistent with decades of practice, while true, may not end up being the decisive one. The Court has, for once, largely left this matter to the political process to decide. But the plaintiffs have lost this political battle in Texas, so they now seek to read a newer, narrow theory of political representation into the Constitution, a stage beyond what even the Warren Court felt comfortable doing—creating an ever-more uniform political theory derived under a construction of the words “the equal protection of the laws.”

Texas, along with the other 49 states, has remained free to adopt one of several theories of representative government within the confines of Reynolds v. Sims. But Evenwel threatens not only to deprive the states of their authority to do so, but also to impose a standard that is squarely at odds with the structural design of the Constitution: representative government includes representation of all persons, not simply voters.

And one can hope that the Court will leave the development of additional political theory to the political branches.

Derek Muller

Derek Muller is an associate professor of law at Pepperdine University School of Law.

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  1. R Richard Schweitzer says

    ” . . . the structural design of the Constitution: representative government includes representation of all persons, not simply voters.”

    But, come now, who determines those representatives if not “simply (only) voters?”

    “a basic principle of our constitutional design: that our elected officials represent all of us. The President of the United States represents all of us-”

    If that were so, if even possible, we would have discovered the means to attaining that chimera which does NOT exist —– Collective Choice.

    What can be represented are PRINCIPLES *and* INTERESTS (the “and” has now been replaced by “or”). People, regardless of categories are NOT represented.

    Years ago, in his disquisition on a “Good Society,” Walter Lippmann pointed out that legislators as representatives should adjudicators of interests, not the representatives of interests; continuing failure in that obligation is a major force in taking us on to the path toward oligarchy that succeeds republics.

    • gabe says


      It appears that Professor McGinnis wishes to follow in the footsteps of Emperor Caracalla and make all denizens of the Republic of Texas citizens. If not, then he is conceding that these denizens have *interests* which must be acknowledged.

  2. John Doe says

    The problem, how I see it is this: the founders of the constitution formulated the basic principle ” without representation, there is no taxation”. This means that if convicted felons are disinfranchised, (i.e. they have no “voting” rights) then they are exempt from ANY form of taxation that congress may impose, because of the fact that because they have no vote, they are NOT represented in the congress. PERIOD. What all this means is, that the founders of the constitution intended that unless the state wishes to allow a felon to VOTE, then that state is barred from asking that convicted felon to pay taxes, in any way, shape or form, right down to the sales tax paid in your local stores.

    Think about it. If a person can’t vote, their not represented by the person elected to ANY public office, by the simple fact that they had no chance to vote yes or no to that individual. Therefore THEY are not, and cannot be, by sheer defintion, “represented” by ANY individual elected.

    My position here is that the Constitution of the United States is not vague about voting privileges. It plainly says that if you want to “do away” with the authority to vote in the general elections, that the stat must also “do away” with some of its authority over that citizen, one of which is the power of taxation.

    In the example of “convicted” felons, the reasoning of the several states is something along the lines of this: “Gee, if we allow child molesters to vote, then they can take control of democratic process, vote us (i.e. the conservatives) out of office, and enforce their own political agenda (i.e. legalizing child molestation) as a matter of law, by power of the vote.”

    The thing is, while this may be one of the pits of democracy, none the less, it is STILL democracy, This means that by basic definition of the terms, that anyone who is against felons having voting power, be it an individual, a state, or anything else, is AGAINST the idea of democracy, by definition.

    Funny to think about it like this, isn’t it?

  3. R Richard Schweitzer says

    When a subject is of particular interest (for many years) it is not unreasonable to hope for broader participation and commentary; so far not seen here.

    Toward better disclosure: this writer was a “displaced Virginian” engaged in law practice based in Jefferson County Alabama in the period that included 1962 through 1964 and had personal contacts with principal litigating attorneys involved in Reynolds vs, Sims. Personal prejudice against the reasoning and function of that decision is admitted.

    Professor Muller’s article, like the Warren Court, continues mislabeling the constitutionally ordained Republic as a “representative government.”
    It is not “representative;” it is an AUTHORITY by DELEGATION.

    In the res publica, where freemen have authority over themselves and their conduct with one another, they may delegate some part of that authority to certain of their members. Labeling those members as “representatives” does not change the true nature of their functions as delegates of authority; through which the authority of Republican governments function.

    Although it may be exhibited, Delegation does not require the function of Representation. Effective Representation does require the function of Delegation.

    From the historic experience of rough approximation of the sources of political authority (electors) to aggregate populations territorially or geographically, the judicial determinations have proceeded to equivalency; but, vox populi is not equivalent to res publica.


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