'One Person, One Vote' Principle on the Line at the Supreme Court

Do illegal immigrant "residents" dilute the voting power of eligible voters?

Hispanic “voting rights” advocates are nervous over the recent decision by the Supreme Court to hear Evenwel v. Abbott, the “biggest voting law case in 60 years” according to experts. Plaintiffs in the case are asking the court to consider a fundamental question about our representative democracy: does drawing legislative districts around “residents” instead of eligible voters give too much weight to voters in immigrant-heavy districts and thus violate the Constitution's “one-person, one-vote” principle? As the two plaintiffs show in court filings, their respective senate districts in Texas have almost twice the amount of eligible voters than do other more Hispanic urban districts. If the voter population of Texas’s districts was equalized, it would have huge implications on how political power’s distributed not only in that state, but likely elsewhere.

In a friend-of-the-court brief filed in support of the plaintiffs, the Immigration Reform Law Institute argues that, in the case of illegal aliens at least, it was never intended by the framers to include them in the apportionment base from which we distribute our representatives. Counting them, we argue, is unconstitutional.

There was concern about the distortive effects of total population-based apportionment when the Reconstruction Congress debated the changes to the Census Clause later enshrined in Section 2 of the Fourteenth Amendment. Senator John Sherman of Ohio, for instance, could not see why a state that has “a very large element of unnaturalized foreigners” should be given political power at the expense of other states. For Sherman, the correct proposition was the one that “puts a citizen in one State on a footing of precise equality with a citizen in every other State.” Ultimately, however, it was deemed that a person’s alienage was not to prevent them from being included in the decennial census.

As for illegal immigrants, however, historical evidence shows granting them representation and apportionment “rights” was never contemplated by drafters of either the Census Clause or the Apportionment Amendment. Legal historian and former analyst with the Immigration Reform Law Institute, Patrick J. Charles, has written extensively about the topic with particular focus on the so-called “doctrine of allegiance.” Embodied in Congress’s plenary power over naturalization, the doctrine sets out that an alien must submit to the nation’s laws and declare his or her intention to lawfully settle in order to be subject to those laws. According to Charles, “when aliens only partially submit to the laws of their host nation they violate the first rule of the law of nations concerning emigration—the doctrine of allegiance and submission of the government.” The drafters understood that political privileges, such as apportionment and representation, were “subject to allegiance and subjecting one’s self fully to the laws” and that without such submission that person would still be subject to the laws of their foreign jurisdiction.

During the Fourteenth Amendment debates, Senator Luke Poland of Vermont stated that legal aliens should be apportioned observing that they are “subject to [the State’s] laws….They must all share in its burdens, and they are all interested in its legislation and government.” This does not apply to illegal aliens. As Charles argues it is “outside the bounds of constitutional logic for a class of foreigners to be entitled to the full protection of the Constitution, especially the political privilege of apportionment, if they do not subject themselves fully to the laws” (emphasis added). Illegal aliens, by their very existence in the United States, are not subjecting themselves “fully to the laws.” Their very presence flouts the law. Just one example is the failure to register their presence with immigration authorities once they have been in the country for 30 days or longer (8 U.S.C. § 1302).

The history of the Census Clause also affirms this general view. The reference to “persons,” as in the “whole numbers of persons in each State” that shall be counted, was meant to only include those that had a “meaningful connection” to the state and that a state’s population “number” only included persons with a degree of stability of residence there. Judge Timothy Farrar’s Manual of the Constitution of the United States was the first treatise analyzing the Fourteenth Amendment and in it Farrar asserts that “other persons” in Article 1 Section 2 included only aliens “legally admitted, or otherwise constituted as such.” It was the “legally admitted” who were “a part of the ‘people of the State,’ to whom the representation is assigned, and on whose numbers it is apportioned.” The Constitution’s “persons” were not to “mean everybody, without regard to anything but their humanity and personality,” writes Farrar. “They must bear some relation to the State.”

Also, according to Charles Wood, reading the phrase “counting the whole number of persons” in the context of the entire Census Clause, including the words, “their [the states’] respective numbers,” also shows that a meaningful connection was intended. This is surely the case since the Census Bureau has never included everyone, such as tourists, in the counting process. Taking a “snapshot” of the population in order to outline the nation’s political layout, as census-counts do, is meant to include persons who are to remain in the country for a long period of time, i.e., for the 10-year period of the census’s impact. Such a practice, however, “is far more dubious if individuals whose futures here are so tenuous are nevertheless included in the snapshot.” That illegal aliens by federal and state law are prohibited from obtaining work and receiving welfare evidences such “tenuousness.” Further, the long period of a census-count’s impact does not support the inclusion of illegal aliens in apportionment as Congress could decide within that period to stiffen the immigration laws and increase deportations. Any literal reading of “persons” in the Census Clause to include illegal aliens is therefore incorrect.