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When It Comes to Voting, Conservatives Want Some People to Count More Than Others. Sound Familiar?

06/01/2015 01:10 pm ET | Updated Jun 01, 2016

President Lyndon Johnson passes to Martin Luther King, Jr. the pen with which he signed the Voting Rights Act on Aug. 6, 1965.

They are creative, I'll give 'em that. The same conservatives who succeeded in getting the Supreme Court to gut the Voting Rights Act last year are now attacking the principle of one person, one vote, and the court has just agreed to hear their case. The purpose of both maneuvers is the same, to help Republicans win elections by diluting or suppressing Democratic votes, in particular the votes of black and brown people. As Greg Palast put it:

Back in 2013, the Supreme Court put a knife into the guts of the Voting Rights Act, making it almost impossible to enforce laws that prevented discrimination against voters of color. Here we are again -- the same group.

The case of Evenwel v. Abbott centers on the question of how legislative districts should be drawn, given that a number of Supreme Court decisions in the mid-1960s established the principle of equal representation, i.e., one person, one vote. In Reynolds v. Sims, the court found that districts in the U.S. House of Representatives as well as in all houses of a state legislature must "be apportioned substantially on a population basis," and that districts must "be of equal population."

Seems pretty straightforward. However, the plaintiffs in Evenwel claim that using population as the measure actually dilutes the vote of eligible voters in districts where there are proportionately fewer non-eligible voters, which includes anyone from disenfranchised felons, non-citizen but legal residents, undocumented immigrants, and, of course, children. Democratic districts are more likely to contain a disproportionate number of people who fall into those categories. That's why, explained election law guru Richard Hasen, a victory for the plaintiffs in this case will likely result in more electoral clout for Republican voters. If they win, FiveThirtyEight found the likely net outcome would be a shift of eight seats in the House of Representatives to the GOP.

The plaintiffs want the court to require states to ensure that every district has an equal number of eligible voters rather than an equal number of people (even though figuring that out is likely impossible, because, according to the folks at FiveThirtyEight, doing so "relies on statistics that nobody has"). If the plaintiffs win, states will be forced literally to count some people more than others. I told you there was something about this case that sounds familiar to anyone who knows our country's, er, problematic history on voting and discrimination.

Nina Perales is the vice president of litigation at the Mexican American Legal Defense and Educational Fund, an organization that opposed the Evenwel plaintiffs. She called their effort "an attempt to cut back on growing Latino political strength in [Texas] by packing Latinos into a smaller number of districts."

There is a lot to unpack in this case, in terms of constitutionality and legal principles. Although the issues are complex, the aforementioned Hasen nonetheless characterized the Court's decision to take it "a surprise move." He added that he had "considered the issue fairly settled by the Supreme Court that states have the power to decide whether to use total population or another measure for drawing district lines." At this point, nothing surprises me when it comes to conservative attempts to win elections by changing the rules of the voting process rather than actually trying to, you know, win votes.

On the matter of it sounding familiar, one thing that stuck in my mind as I was reading about this case was how much it reminded me of something from the time of America's founding, a morally suspect deal struck in order to keep slave-owning states in the union as the Constitution came together.

Three-Fifths Compromise

The specific circumstances of the Evenwel case certainly differ from those surrounding the Three-Fifths Compromise. However, the fundamental parallel remains. Even leaving aside the question of undocumented immigrants, if the conservative plaintiffs in Evenwel triumph, some Americans will count and others will not in determining the very same question at the heart of that debate from over two centuries ago, namely how to draw legislative districts of equal size.

Ultimately, the Three-Fifths Compromise allowed Southern white conservatives to gain greater representation in the House of Representatives than they deserved, at least so long as they denied citizenship, freedom, and equal rights to those Americans of African descent whom they enslaved in such large numbers. After slavery was outlawed, the South got an even greater unearned benefit in representation because -- under Jim Crow -- they denied black men the right to vote while counting 100 percent (as opposed to three-fifths) of Southern blacks in their states' population. This discrepancy only grew wider after women won the right to vote in 1920 -- except in the South, where, until 1965, whites continued to disenfranchise black women as well as men while happily counting their numbers for purposes of representation.

This case is by no means the equivalent of slavery, or of Jim Crow. But that is a very low bar to clear in 2015. The Evenwel case is, without question, part of a long-term, multi-pronged effort by conservative activists and Republican officials to alter election and voting rules in a way that enhances their electoral prospects. In other words, they want to fix the game. Having already achieved much, they certainly aren't going to allow something like counting a person as a person stand in their way.

Will the Supreme Court see this scheme for what it is and rule in favor of not counting some Americans more than others? Or, on the other hand, will the five conservatives on the Court see it for what it is and give the conservative plaintiffs exactly what they want, knowing full well the purpose behind their push? Given how the court ruled on the Voting Rights Act, we need to be prepared for the worst. If that indeed comes to pass, the next question will be: What are we who believe that voting rights and equality are sacrosanct going to do about it?