What right are we talking about? Is it the individual person’s right to representation? In a democratic system, leaders are elected by voters, but once elected, they represent all the people. Those too young to vote, those excluded because of criminal records, and those who are not citizens are “persons” for equal-protection purposes. Is it the individual voter’s right to an equal vote? Then voting-age population or something like it would be the correct basis for apportionment.
It’s not an easy question; but I think the theory, the text, and the history favor raw population.
The real issue, though, is VRA Section Two. It impels some states with large Latino populations to draw districts that empower Latino voters—so that Latinos will have the “opportunity” to elect candidates of their choice. That requirement was added after congressional hearings in 1982, to provide a remedy to minority voters against voting procedures and districting that had the effect of reducing their influence, whether or not they can prove that the states intended to do so. As a young lawyer in the Reagan administration, Chief Justice John Roberts expressed his dismay at this “effects test.” In a 2006 case about “vote dilution,” Roberts wrote a separate opinion that said, “It is a sordid business, this divvying us up by race.” This case might offer a chance to reduce Section Two’s impact.
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