Excerpted From: Rachel F. Moran, The Perennial Eclipse: Race, Immigration, and How Latinx Count in American Politics, 61 Houston Law Review 719 (Symposium 2024) (216 Footnotes) (Full Document)

RachelFMoranOn the eve of a momentous presidential election, it seems fitting to speak about politics in a state as influential to our national debates as Texas. The Lone Star State's significance has been recognized for years. Most notably, Republican strategists have worried about how to preserve their party's dominance despite growing diversity in the population, especially the rising number of Latinx residents. As Mick Mulvaney noted in 2015:

There are three million Hispanic people in Texas who will be able to register to vote before the next election, 2016, three million new Hispanic voters who are not eligible to vote in 2012 but will be eligible to vote in 2016. If the next Republican candidate for President gets the same percentage of the Hispanic vote that Mitt Romney got, we will lose Texas. Not in 2024, not in 2020, but in 2016. And if we lose Texas folks, I've got news for you, we're never gonna elect a Republican president again.

Around the same time that Mulvaney was lamenting the future of the Republican Party in Texas, the U.S. Supreme Court was deciding Evenwel v. Abbott, a lawsuit challenging the state's reliance on total population rather than citizen voting-age population (CVAP) when apportioning legislative districts. The proposed shift to CVAP would have excluded young people and immigrants, significantly reducing Latinx and Democratic representation while bolstering non-Hispanic white and Republican influence. The Court ultimately held that Texas was not required to use CVAP but left open whether it could choose this method or other alternatives to total population count.

Because the Court declined to impose clear constraints on official discretion, there has been relatively little commentary on Evenwel's implications. That is a mistake, and I feel fortunate to have the remarkable platform of the Frankel Lecture to call attention to the importance of who counts in apportionment decisions. There will certainly be more battles regarding these issues. In fact, both federal and state officials have expressed an interest in switching from total population to CVAP. So, it behooves us to develop a deeper understanding of the case's implications now. After reviewing the dispute in Evenwel, this Article will address some valuable commentary on methods of representation, focusing on the work of Professor Fishkin and Professor Somin. Each offers a cogent assessment of features of the electoral system that transcend an individual's formal right to vote. After evaluating their arguments, this Article will explore why their approaches do not fully address the perils posed by Evenwel's proposed shift to CVAP. Because that shift would exclude noncitizens from the population count, I next turn to concerns about the potential impact on immigrant integration. At present, long-term undocumented residents without a pathway to citizenship are permanently disenfranchised in federal, state, and most local elections, while permanent residents typically cannot vote until they apply for and receive citizenship. Immigrant-focused measures, such as a path to citizenship for some undocumented residents or voting rights for permanent residents in municipal elections, could be effective ways to include the foreign-born in the political process. However, these reforms are unlikely to be widely adopted anytime soon. For that reason, reliance on total population rather than CVAP will remain an important way to protect immigrants' concerns by ensuring that they count in the districts where they live. I close by considering whether adoption of a CVAP formula might, under circumstances like those in Texas, violate Section 2 of the Voting Rights Act by impermissibly diminishing the influence of minority-group voters, particularly Latinx.

[. . .]

In this Article, I have argued that changing demography, especially the increasing significance of the immigrant population, requires a more robust response to the Evenwel decision than seen so far. Immigration has led to substantial disparities in the proportion of eligible voting-age citizens among Latinx and Asian Americans as compared to other racial and ethnic groups. Large numbers of disenfranchised persons already weaken the political clout that these constituencies wield. At the same time, the disparities leave minority groups vulnerable to proposals, like the one in Evenwel, that use these differences to further diminish depressed levels of electoral influence. Voting rights jurisprudence has focused on eligible voters and largely ignored those who are ineligible to cast a ballot, but this approach seriously endangers the political voice of Latinx and Asian American communities. In fact, if the Court ignores the racial and ethnic implications of methodological choices like these, it will countenance diminished representation for citizens and immigrants alike.

Professor, Texas A&M University School of Law.