In any democracy, some people will be granted the vote and others—such as children—will not. Given this fact, what does it mean to achieve “equality” in the political process? In Evenwel v. Abbott, the Supreme Court collapsed the distinction between voters and nonvoters, holding that states can ignore this difference when they apportion representatives across legislative districts. The result is that states may now create districts that simply have equal numbers of people, even if they have vastly unequal numbers of voters. Such apportionment schemes mean that the number of people actually choosing a representative—and the political power those people hold—will vary from district to district across a state.

An apportionment scheme based on equal numbers of people can only be justified by an assumption that the voters and nonvoters in a district will have a similar influence on their representatives (both are able to write their representative a letter, the Court hopefully noted). But in making this assumption, the Court ignored the lesson of a dark chapter in America’s history.

In 1866, the framers of the Fourteenth Amendment witnessed the southern states disenfranchising the newly freed slaves while simultaneously demanding additional representatives in Congress on account of those former slaves. But it was obvious that the will of the nonvoters and voters in these states could not have been more different. The framers declared that “if men have no voice in the national Government, other men should not sit in this Hall pretending to represent them,” and that, “[i]f there is any portion of the people of this country who are unfit to vote for themselves, their neighbors ought not to vote for them.” As a result, they enacted the Fourteenth Amendment’s Penalty Clause, which requires that disenfranchised adult citizens not be counted for the purposes of federal apportionment.

The lesson of this history is that counting nonvoters in apportionment only increases the political power of the voters who happen to live near them. And there is no guarantee that these voters will use this extra political power to “virtually represent” the interests of their nonvoting neighbors. In Evenwel v. Abbott: The Court Shanks Its Punt on “One Person, One Vote,” Ilya Shapiro and I go into greater detail on this history, and explore the real reasons the founders chose a total-population rule for federal apportionment. This history shows that the Court should have required states to remove independent nonvoters from their apportionment schemes. Since the Court declined to do so, it is now up to the state legislatures themselves to work to bring true equality to their political institutions.