Evenwel Decision Upholds Democratic Inclusion

Written by Andrew Schwartz

This past Monday, the Supreme Court put an end to the century-long clash over what constitutes political representation. The concept of “representative democracy”—a principle which has been observed by Americans with nothing more than undisputed allegiance—is not nearly as clear cut (nor representative) as many would think. Rather, this principle has been inundated with a forceful clash about what constitutes representation. On the one hand, there are those who believe that only those who hold political power—eligible voters—should be represented in congressional districts; on the other hand, there are those who believe all citizens in the census should be accounted for. In Evenwel v. Abbott, the Supreme Court unanimously upheld the “one person one vote” principle, compelling states to count all residents in drawing election districts, whether or not they are eligible to vote.

Though this was a unanimous decision (8-0 with the absence of Justice Antonin Scalia), it is considered to be a grand victory for liberals.

That is, it helps to facilitate representation of undocumented immigrants, people with green cards amid a path to citizenship, and those who have been disenfranchised by the result of a criminal conviction—people who generally vote towards the left. According to the Washington Post, the notion that only eligible voters should be considered is “an assault on the ease with which people who are more likely to vote Democratic can obtain representation at the ballot box.”

Among all these groups of disenfranchised individuals under the strictly eligible voter based formula, convicted felons have to be the greatest demographic. What is so vastly problematic about this, is how disproportionate these numbers are along racial lines. In her book “The New Jim Crow,” civil rights advocate and Law Professor at Ohio State University, Michelle Alexander, explores how the mass incarceration of African Americans has been so deliberately orchestrated to disenfranchise them socially and politically. More African Americans are under the control of the criminal justice system today—in prison or jail, on probation or parole—than were enslaved in 1850.

Discrimination in housing, education, employment, and voting rights, which many Americans thought was wiped out by the civil rights laws of the 1960s, is now perfectly legal against anyone labeled a “felon.” The ruling in Evenwel, however, has dealt a nice blow to the unfortunate reality Alexander so compellingly exposed in her book.

Justice Ruth Bade Ginsburg, who wrote the majority opinion for this decision, stressed the importance of nonvoters in American political life. “By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation,” argued Justice Ginsburg.

The victorious outcome of the ruling in Evenwel carries particular weight given the harm done to voting rights in the past couple years by the Supreme Court. In 2013, the Court effectively de-legitimatized an essential component of the Voting Rights Act in Shelby County v. Holder. This component, section 4(b), required districts with a previous history in voter discrimination to get authorization from the department of justice before changing their voting regulations. In his majority opinion, Chief Justice John Roberts asserted that the coverage formula in section 4(b) of the Voting Rights Act is outdated, and thus exceeded Congress’ power provided by the enforcement clauses of the Fourteenth and Fifteenth Amendments. But this is unreasonable because the fact that voter infringement was not a problem in these districts is a result of section 4(b) itself.

Overall, this ruling is one of great significance and should be celebrated at the moment. In a time when political action and policy become more and more integral to the framework of American life, it’s important that judges and politicians strive to expand voting rights rather than narrow them.

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