SCOTUS to Decide Meaning of “One Person, One Vote”

© Josh Sager – December 2015

This week, the Supreme Court heard a case called Evanwel v. Abbott that has the potential to cause immense damage to our democracy…or what remains of it after the SCOTUS took a chainsaw to campaign finance laws in 2010 and the Voting Rights Act in 2013.

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The Evanwel v. Abbott case centers on the meaning of “one person, one vote.” Specifically, it will decide whether we continue to count every member of a community, or whether we will begin to just count those who are eligible to vote when determining how election maps are drawn.

This may sound a little complicated but is actually very simple. Currently, election maps are drawn according to the real population of a state and include minors, disenfranchised felons, non-citizen residents, and other people who are not eligible to actually cast a vote on Election Day—while these people are not able to vote, they are considered residents when deciding how much representation each area gets (ex. in the Congress). If this legal challenge is successful, it will allow states to exclude these non-voting populations when drawing election maps, dramatically reducing the representation that voting members of those communities are apportioned.

In effect, areas with high percentages of disenfranchised felons, underage residents, and non-citizen immigrants will see their representation shrink, while areas that are older, whiter, and less incarcerated will see their representation increase. These changes would be highly consequential and could establish nigh-insurmountable systemic electoral advantages in certain states that favor the right wing.

The challenge to this status quo is being brought by the law firm of Edward Blum, which is the same firm that successfully challenged Section 5 of the Voting Rights Act in 2013. Blum has a history of championing far-right causes and is a very effective lawyer. Given Blum’s history of success and the recent decisions by the Roberts Court, this case is extremely worrying to liberal and moderate Americans who want to preserve fairness in elections.

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Racism, Incarceration, and Disenfranchisement

The United States has a long and unfortunate history of systemic racism and the mass incarceration of minorities. This systemic racism has created huge racial disparities in the criminal justice system, where minority Americans are arrested more often, have a lower chance of being acquitted at trial, and are incarcerated for longer (for the same crimes) than white Americans.

When combined with felon disenfranchisement laws, the embedded racism in the criminal justice system has created disparities in electoral power. Put simply, more minority Americans are arrested for felonies than white Americans, thus more minority Americans are disenfranchised in states where felons lose their right to vote.

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If the SCOTUS decides in favor of Evanwel, this level of disenfranchisement will increase significantly. States will be allowed to eliminate non-voters from apportionment calculations, thus will shrink the effective political power of highly criminalized communities. This will fall disproportionately on minority communities, particularly African Americans in urban areas.

Here is a concrete example of this disenfranchisement at work:

According to The Sentencing Project, 7.3% of the Virginia population is disenfranchised because they are incarcerated, on parole, or have been convicted of a felony—this amounts to approximately 451,471 Americans. Of these disenfranchised Virginians, 53.8% (242,958) are African Americans, despite the fact that only 19.6% of the Virginia population identifies as African American.

Due to this disparity, 20.4% of the African American population of Virginia is permanently disenfranchised , compared to only 3.2% of the non-black population. This means that two communities—one white and one black—that reflect the average incarceration numbers would receive dramatically disparate representation. The African American community would receive 17.1% less representation while determining districts, when compared with the similarly-sized white community.

This pattern is repeated across the nation, particularly in southern red states. The following map, produced by The Sentencing Project using 2010 Census numbers, illustrates the scope of this disenfranchisement:

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If the Supreme Court votes the wrong way in the Evanwel case, states that disenfranchise people convicted of felonies (most of whom are non-violent drug offenders) will be able to double down on their disenfranchisement by reducing the power of voters in the most deprived communities. As mass incarceration in the USA is highly racialized, the result of this change will be a very hard blow against the political power of the African American community on the national stage.

One thought on “SCOTUS to Decide Meaning of “One Person, One Vote”

  1. A number of good points in your essay.

    We may ask “Why are there so many more blacks and poor whites convicted of felonies than middle class and upper class blacks and whites?” The answer, of course, is that the criminal “justice” system is not designed to produce a fair, honest verdict. It is a system designed to produce winners and losers. And those who can afford better representation are more likely to be the winners. It has also been documented that when people in the lower classes are convicted of drug related crimes they are incarcerated while those in the middle and upper classes are sent to rehab and given community service, with no felony conviction. An article published by the American Journal of Public Health (2008) claimed that drug USE among whites, black and Hispanics was about 7.2, 7.4 and 6.4 % respectively. Yet, the INCARCERATION rate for blacks drug arrests was at 62%. In other words, although blacks used about 15% of illegal drugs in the US (as opposed to whites using 72% of illegal drugs), blacks represented 62% of the people in prison for using illegal drugs.

    http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2374804/

    Another point you raise is even more important. States make no distinction between violent and non-violent felonies. In fact. most non-violent drug offenders who are convicted of felonies are minorities. Yet, we know that drug use cuts across all socioeconomic and ethnic groups at a fairly equal rate. It seems to me that any non-violent felon who has served his or her prison term and have reentered society should have the right to vote. Otherwise we have a case of “taxation without representation”. that was the most important concept that lead to the founding of the US in the first place.

    There are a number of good solutions to the problem of gerrymandering and laws that seek to prevent minorities and the poor from having fair representation in Congress.

    1. Each state should have a slate of candidates and the voters should vote for the political party. The party representation would then be distributed based on the percentage of votes each party receives. This would be fair since it would reflect the actual voter preferences and it would open the door to third party candidates who are now , for all intents and purposes, unable to win any elections. If the GOP gets 55% of the vote, they get 55% of the representatives. That would mean the end of the ludicrous “congressional district” system we now have in place. (I am not aware of any Constitutional impediment to this system.)

    2. Allow all American citizens to vote. I know, that sounds pretty radical in a nation that describes itself as a “democracy” . There is no reason why even felons cannot be well-informed voters, able to make that decision. Look at all the uniformed voters we have now. As a group, I doubt that felons are less informed.

    3. Provide a free voter ID card to all citizens who turn 18. After all, we expect all young men to register with Selective Service at that age. An ID card, perhaps based on your SS number, should eliminate any fears that some people have of voter fraud. At the same time it eliminates the laws intended to prevent certain kinds of people from voting. Laws which, oddly enough< have emerged IMMEDIATELY after the SCOTUS struck down key provisions of the Voting Rights Act.

    Of course, I am assuming that we WANT a true democracy and we want everyone to participate. I do. But many do not.

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