The Little-Known SCOTUS Case that Could Lead to a 21st Century 3/5 Compromise

© Josh Sager – June 2015

Unfortunately, recent years have given Americans significant reason to worry whenever we see the words “democracy” and “Supreme Court” in the same sentence. In the last five years alone, the SCOTUS has eviscerated the Voting Rights Act (Shelby County v. Holder), allowed corporations to spend billions buying our elections (Citizens United v. FEC), and removed aggregate donation limits, letting big-money donors give far more money to politicians in order to gain influence (McCutcheon v. FEC).


Last week, the SCOTUS announced that it would hear the Evenwel v. Abbott case and, in doing so, will decide how to define the term “one person, one vote.” The Evenwel case is being brought by several Texas conservatives, backed by the CATO Institute, who want to change the way we determine elected representation from a population-based apportionment, to a system that only counts eligible voters. Specifically, they are challenging the inclusion of non-citizen Hispanic residents when determining voting districts, thus giving elected representatives in those areas (largely Hispanic themselves) equal power with elected representatives in areas where far larger percentages of the district have the right to vote.

Basically, these claimants are arguing that white people are being denied fair levels of representation because Hispanic districts in Texas tend to elect Hispanic representatives, and undocumented immigrants tend to bolster the populations in these majority-Hispanic areas.

Currently, the US uses Census numbers to determine the population of each state, and then apportions representation based upon raw population, not voting status. In this system, people who are too young to vote, unable to vote due to a criminal record, or without legal status are still counted as “people” when looking to determine the representation of their place of residence.

If the Evenwel case is successful, these residents who are unable to vote will be omitted, not only from the voter rolls, but also from the equation that it used to determine how much representation their neighborhood gets—in effect, they don’t count as “people” in the term “one person, one vote.” This will have extreme ramifications across all levels of government, and will completely transform certain voting maps.

Here is just one example of how this shift will change populations of representation:


Areas that have large numbers of younger residents will no longer be able to include those under the voting age in their population, thus will lose massive representation when compared with older areas. On this map, if two counties in the same state had the same population, yet one was a red county with nearly 60% of the population being non-CVAP (Younger and less-white) and the other was a yellow county with only 20% non-CVAP (older and whiter), the yellow county would receive twice the representation that the red one would.

Put simply, this is a potential disaster, if not the modern revival of the infamous 3/5 compromise (the provision in the original Constitution which said that African Americans were only counted as 3/5 of a person when determining the population of a state for purposes of voting).

Racism, Mass Incarceration, and Disenfranchisement

While the original scope of the Evanwel argument focuses on the CVAP (“citizen voting-age population), the ramifications go far deeper than that. Almost every state has passed laws that prevent convicted felons from voting, thus creating large pools of people who are not legally able to vote, yet are still counted when populations of representation are determined. If Evanwel is successful, these convicted felons would almost certainly be struck from the population count when determining elected representation (in states that have felon-voting bans).


Because disenfranchised felons are statistically likely to be poor, black/Hispanic, and living in urban areas, this shift would heavily skew representation to favor rich, white, and rural/suburban areas.

Our legal system has criminalized large portions of our African American and Hispanic populations, arresting them at disproportionate rates and sentencing them with worse crimes than similar white suspects. According to a 2012 study on this subject, approximately 7% of the African American population is currently unable to vote due to a criminal record, as compared to just 1.8% for the total population.


The combination of racialized policing and an Evanwel decision are absolutely horrifying. The racist system of policing and mass incarceration entraps disproportionate percentages of the minority population and charges them with crimes which prevent them from voting or even adding to the elected power of their neighbors. This, in turn, reduces the representation of black and Hispanic areas in our government and ensures that the interests of those communities are never addressed. Because these communities have decreased political power, there is no incentive for the police or political class to care about their plight, or make any effort to protect their voting rights.

In effect, such a situation would create a community-wide 3/5 compromise, where white communities have almost full representation for their populations, yet majority-minority communities have only fractional representation because large portions of their populations have been discounted. This is, at heart, the exact same toxic “compromise” that was used to empower the white elite over everybody else during the early years of our nation.

3 thoughts on “The Little-Known SCOTUS Case that Could Lead to a 21st Century 3/5 Compromise

  1. One never knows what this SCOTUS will do. They seem to pick and choose whether or not to be “strict constructionists” depending on who benefits. IF they were to follow the Constitution, Article I, Section 3 is pretty clear.

    “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons…..”

    The “whole number of free persons.” If the founding fathers wanted to tie representation to only people who are eligible to vote they would not have been able to count women, children or non-landowning men in the census for that purpose.
    While this case looks like a no-brainer, if the SCOTUS decides to follow the Constitution, we all know that they have made stranger decisions if those decisions support the GOP…
    I give you Gore v Bush in which they violated the rights of the state of Florida to count their votes; Citizens United which made corporations into “persons” for the sake of contributing to politicians; and, Hobby Lobby which claimed that a corporation (a legal entity without life) could claim to have “religious ” beliefs.
    While any reasonable interpretation of Article 1, Section 3 throws out the case, this SCOTUS has already proven to be an activist court when it comes to assisting the GOP.


  2. I am now not certain the place you’re getting your information, but
    great topic. I needs to spend a while finding out much more or working out more.
    Thanks for excellent information I was looking for this information for my


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