How to count 101

The U.S. Supreme Court has accepted a case that could have impact on Nevada—though many are uncertain what that impact will be.

The case, Evenwel vs. Abbott, raises the question of whether voting districts should be apportioned according to their population or according to one portion of their population—eligible voters. Evenwel deals with local governing boards, but its outcome would likely eventually affect apportionment decisions for legislatures and Congress.

The case was brought by the Project on Fair Representation, a conservative D.C.-based organization that has won court victories that have reduced minority voting strength and challenged affirmative action.

Nevada’s founders required in the Nevada Constitution that both houses of the legislature be apportioned by population. In 1915, state lawmakers broke this law and created a system patterned after Congress that gave every county one senator (a “little federal” plan), thus malapportioning the Senate dramatically. In 1950, voters approved an amendment to the state constitution that made this illegal arrangement legal. As Nevada constitutional scholar Eleanore Bushnell put it, “the legislature had explicitly defied the constitutional provision” for 35 years of state history.

In 1960, the last census in which the little federal plan was used for legislative apportionment, the 84,743 residents of Washoe County were represented by one senator. The 568 residents of Storey County also got one senator. Malapportionment gave the 26 percent of Nevada’s residents who lived in 15 of the 17 counties 88 percent of the Senate (15). The 211,759 residents of Washoe and Clark counties had 12 percent of the senators (2).

Since then, the small counties have steadily shrunk as a percentage of state population. If the same system were in place today, that 88 percent of the Senate would represent just 5.8 percent of the state population. It has become difficult to create small county districts, though the size of the Assembly and Senate have been enlarged to about the size their halls can accommodate.

In its 1962 Baker vs. Carr and 1964 Reynolds vs. Sims rulings, the U.S. Supreme Court provided a remedy for this system that gave enormous power to regions with few residents. Baker found that legislative malapportionment was a proper subject for federal court review. Reynolds disallowed state senates patterned on the federal plan and said that districts must contain as close to the same number of people as possible. However, in devising formulas for districting, the court did not spell out which people were to be counted. Virtually all subsequent lower court rulings have used the general population, a practice that seemed to be sanctioned by the U.S. Supreme Court until the court accepted the Evenwel case.

“When the earlier court cases came to them, they may have thought of them as offbeat,” Nevada political analyst Fred Lokken said. “When they kept coming back, maybe they sensed there’s a trend here that they need to address. It’s no guarantee that they are going to rule for using eligible voters.”

If the court decides to use eligible voters as the base number in calculating apportionment, its meaning is anyone’s guess.

Lokken said it would have an “intense discriminatory” effect. “We count every man woman and child in formulating these matters,” he said. “Even if you’re not eligible to vote, that is your government.” He said basing districts on the adult population would be a form of voter suppression.

Cases like this have come to the Supreme Court before, but it has passed them over. Lokken said its acceptance of this one does not necessarily mean it intends to rule against using the general population.

There is also speculation that a Supreme Court ruling in favor of using the adult population, more or less, as the basis for apportioning districts could shift influence from rural to urban areas—particularly in sunbelt states like Nevada. The New York Times quoted New York University constitutional law professor Richard Pildes that it “would be most significant in border states, like California, Texas, Arizona and Nevada, that have the largest proportions of noncitizens.”

Scholars believe illegal immigrants tend to live in urban areas, though there have been reports from immigration officials of numerous illegal residents working on Western ranches.

In an email exchange with the RN&R, Prof. Pildes said all humans are counted for the purpose of the census, numbers that are then used for congressional redistricting. Thus, non-voters nevertheless have an election impact because their numbers are reflected in districts—at least under the current practices. That could change if the court ruled against those practices.

“Non-citizens include legally resident aliens as well as resident aliens who lack legal authorization,” Pildes said. “None of these people vote or can vote, but they do get counted by the census. The Constitution directly requires that the census count include all ’persons.’ Thus, the census count includes various categories of people who can’t vote, like those under 18. The Constitution also directly requires that the number of representatives in the U.S. House to which each state is entitled must be based on this census count. Thus, the number of representatives to which Nevada is entitled include all non-citizens who reside in the state—even though they do not have the right to vote. The best studies also conclude that a high percentage of even non-authorized alien residents do end up getting counted by the Census.”

That’s the election impact. However, the campaign impact, at least in Nevada, would probably be negligible.

That’s because Nevada has become so lopsidedly urban. The 15 small counties now account for less than 6 percent of the residents, and while that percentage can determine the outcome of a race—as in the Bush/Kerry election in 2004—the dynamics of campaign tactics and strategies would remain pretty much the same. The small counties tend to vote so rigidly conservative that Democratic candidates who invested much time in them often regretted it (“No sale,” RN&R, Aug. 28 2008), and likely would continue their focus on the urban areas. Because the small counties are regarded as safe for Republicans, they are not a big factor is campaign strategies.

Candidates would still cultivate the Latino vote, because their numbers in the state are substantial—about a fifth of the state electorate. That’s without considering illegal aliens, who aren’t really a campaign factor because they rarely vote. They avoid voter registration in order to stay off the radar of officialdom. As Dan Burk, then Washoe County voter registrar, said in 2012, “Does it really seem like a person would do that to cast a single vote … at the risk of getting kicked out of the country?”

To put it another way, illegal immigrants would be a factor in apportioning of districts but not in campaigns. Legal Latinos would be a factor in both—and a substantial one in Nevada.

The court’s ruling is not expected until next year.