© 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.

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.

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.

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:

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.