- The Washington Times - Tuesday, December 8, 2015

Supreme Court justices grappled Tuesday with how to balance the “one person, one vote” principle against late-20th century affirmative action policies, hearing two cases testing how far states can go in accommodating noncitizens or racial minorities when it comes time to draw voting districts.

One case, out of Texas, asked the court to allow states to count only voters when drawing state legislative districts, and to exclude illegal immigrants or other noncitizens.

Another case, stemming from Arizona, challenged state lines drawn to pack thousands of extra white voters into districts in order to dilute their strength and give more power to individual Hispanic voters in neighboring districts.

“What we have is a violation of the Equal Protection Clause,” Arizona Attorney General Mark Brnovich told the court as he asked the justices to overturn his own state’s lines, drawn by an independent commission.

Both cases are being closely watched amid the ongoing immigration debate, with Hispanic rights groups saying their political power is at stake.

Under current practice, all persons, including illegal immigrants, are counted when states decide where to draw the lines to create voting districts. In Texas, which has a heavy noncitizen population, that means one state Senate district has 584,000 eligible voters while another has just 372,000 — potentially resulting in a voter in the first district having less weight in picking his or her representative than a voter in the second district.

“The only way to make sense of the one-person, one-vote rule is to make it about eligible voters,” said William S. Consovoy, the lawyer for the plaintiffs.

The Constitution requires congressional districts to be apportioned based on total population, but it’s less clear what the rules are for the states.

The court’s liberal justices peppered Mr. Consovoy with questions about problems with the Census Bureau data that would be used to determine eligible voters. And Justice Ruth Bader Ginsburg said under his interpretation, women wouldn’t have been counted in determining districts up until they earned the right to vote in 1920.

In the Arizona case, meanwhile, the redistricting commission wrote districts trying to enhance the voting power of Hispanics in order to meet what it believed were the requirements of the Voting Rights Act, which pushes states with histories of discrimination to carve out seats with heavy minority populations.

But two members of the five-person commission also had political motives in writing the lines to try to help Democrats, a court found.

Tuesday’s arguments seemed to turn on how big a role those political motives played.

Justice Ginsburg said if that was the motive, the panel did a poor job: Republicans ended up winning 56 percent of Senate seats and 60 percent of House seats, despite only being 54 percent of registered voters.

“An incompetent gerrymander is no less a gerrymander,” Mark F. Hearne, the lawyer for those challenging the Arizona map, replied.

The Obama administration defended the maps in both cases, arguing that protecting Hispanic voters’ interests was an important goal in Arizona, and that relying only on eligible voters to divide up voting districts would hurt the rights of noncitizens in Texas and elsewhere.

Hispanic rights groups, meanwhile, said they’re closely watching the court, particularly in the Texas case, where they said millions of Hispanics could lose political power if noncitizens are stricken from the counts.

“The most affected by a negative ruling would be the millions of U.S. citizen children who would be without representation at the state level, where crucial decisions about school, health care and infrastructure are made,” said Maria Teresa Kumar, president of Voto Latino. “This is a radical challenge of our constitutional guarantees and the democratic ideals for which we strive.”



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