Redistricting Can Count Prisoners and Other Non-Voters, High Court Rules

Redistricting Can Count Prisoners and Other Non-Voters, High Court Rules

Rejecting a lawsuit filed by conservatives trying to rewrite the longstanding “one man, one vote” rule for drawing the lines for political districts, the U.S. Supreme Court has ruled it is acceptable for states not to count just eligible voters, but to instead use the number of total residents.

As a result, states can count residents ineligible to vote, such as children, non-citizens, and locally incarcerated prisoners (only two New England states allow inmates to vote in their elections).

In Evenwel v. Abbott, two residents of rural areas in Texas challenged the way the state legislature redistricted the state Senate after the 2010 census; it had used figures for the total population to draw lines giving each district roughly equal numbers of residents – following Supreme Court rulings in the 1960s, notably Baker v. Carr, that established a “one man, one vote” principle for political redistricting and held that too great a divergence from that standard would be open to challenge as violating the equal protection mandate in the 14th Amendment.

Plaintiffs argued their reading of the Constitution compelled states to draw up districts based only on the number of eligible voters, not the total number of residents. Since all states, with minor variations, use total-population figures for political redistricting, the lawsuit might have substantially shifted political power within states away from areas with larger numbers of residents ineligible to vote, to instead favor areas that had higher percentages of voters among their residents. When a lower court ruled against the plaintiffs, the Supreme Court decided to hear the appeal.

With unusual unanimity, all eight Justices rejected the plaintiffs’ argument on April 4. The main opinion, written by Justice Ruth Bader Ginsburg, noted states and localities have used total population figures in redistricting for “decades, even centuries.” Further, all state residents, not just registered or eligible voters, have government interests in areas such as education and benefit programs, so using total-population figures – not just the number of qualified voters – acts to serve “equitable and effective representation,” Ginsburg wrote.

Two justices, Samuel Alito and Clarence Thomas, agreed with the result but filed separate opinions taking issue with portions of Ginsburg’s reasoning. Alito conceded use of total-population figures was consistent with “practical considerations and precedent,” but warned Ginsburg’s opinion might one day be read to rule out redistricting use of eligible voters only.

Thomas’ opinion argued the Court had never adequately spelled out how the “one man, one vote” principle was required under “equal protection,” and said states have wide discretion in making decisions on redistricting.

The Evenwel opinion did not rule out a state using only eligible voters for redistricting purposes but only held it was not required. The impact large numbers of prisoners may have on political boundaries occasionally surfaces in redistricting debates, especially in thinly populated rural areas where relatively large jail or prison populations are present. Four states (California, Delaware, Maryland, and New York) have adopted laws excluding from their redistricting counts inmates who, before being jailed, were domiciled in other states.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and