The Twenty-Eighth Annual Frankel Lecture

The United States may be the world’s oldest democracy,^[1] but the franchise, along with citizenship, has long been restricted along lines of race,^[2] ethnicity,^[3] and sex.^[4] Since the arrival of European settlers to North America at scale in the sixteenth century, our democratic institutions, from town hall meetings to colonial, state, and federal legislatures, have largely been whites-only and male-dominated affairs. Multiracial democracy in the United States, by contrast, is a recent innovation—and an imperiled one. In the last decade, the Roberts Court has played a decisive role in the counter-revolution against multiracial democracy, in particular with its invalidation of the preclearance provisions of the Voting Rights Act in Shelby County v. Holder,^[5] and its refusal to discipline increasingly technologically precise political gerrymandering.^[6] The counter-revolution has occurred as immigration—both expressly invited and undocumented—and has transformed the demographics of the United States. While the nation as a whole remains majority white (non-Hispanic),^[7] there is considerable demographic variation among states—variation that prefigures national demographic change. In California and Texas, for example, Latinx-identified people are the largest demographic category, eclipsing non-Hispanic whites a few short years ago.^[8]

If you are reading this and identify as white, social scientists say that you are likely feeling—reflexively and unconsciously—more politically conservative.^[9] This feeling is behind much of the energy that is helping to drive the counter-revolutionary politics that are currently associated with former President Donald Trump. It may be that politics ultimately fail, but that failure is not inevitable or foreordained. Its success would be more consistent with the United States’ past than not. Whether or not Trump wins the 2024 election, the underlying dynamics that made him a political force will remain in place. The fear of a majority U.S. population composed of racial, ethnic, and religious minorities is a key driver of this sort of politics.

For the Twenty-Eighth Annual Frankel Lecture, Professor Rachel Moran considers the emergence of a new and under-discussed legal technology that may facilitate the suppression of the political power of members of growing racial demographics: the exclusion of noncitizens from the population used to apportion congressional districts. In The Perennial Eclipse: Race, Immigration, and How Latinx Count in American Politics,^[10] Moran interrogates and explores the implications of the little-discussed 2016 United States Supreme Court case Evenwel v. Abbott.^[11] Sue Evenwel, a Texas resident, filed suit against Governor Greg Abbott, alleging that Texas’s method of drawing district lines based on total population, rather than citizen voting-age population (CVAP), violated the Equal Protection Clause by diluting her vote.^[12] To make her case, Evenwel demonstrated that there were more eligible voting-age citizens in her district compared to others, meaning that she would have to compete with more voters to make her voice heard.^[13]

While the Supreme Court swiftly denied Evenwel’s claim, the Court left consequential questions unanswered—questions that Moran argues are paramount to achieving democratic equality. Perhaps most importantly, the Supreme Court declined to say whether CVAP is a permissible method of drawing lines, which, Moran says, indicates that CVAP may be permissible.^[14] Moran argues that the Court’s “agnostic” approach to the “significance of substantial disparities in voter eligibility” indicates its failure to consider how immigration has complicated voter equality based on race.^[15] In the aftermath of Evenwel, there are signs at both the national and state levels indicating interest in implementing the CVAP metric for districting.^[16] Moran spends the rest of her article discussing how shifting to CVAP would exclude noncitizens from the population count, harm the minority electorate, and potentially violate Section 2 of the Voting Rights Act if adopted in Texas. Moran explains that a CVAP method of counting would produce much larger districts in predominantly Latinx communities, thereby diminishing Latinx’s ability to influence outcomes.^[17] Importantly, the article contains discussion of Texas’s long history of electoral discrimination,^[18] showing that CVAP would likely be used to purposefully dilute the Latinx vote.^[19]

Scholars agree that full participation in political and social life in the United States is crucial both to immigrants’ integration and well-being and to democratic integrity. To this end, Moran considers how this can be achieved despite shortcomings in the formal political process. Specifically, she offers commentary on ideas put forward by the commentaries to her work by Professors Joseph Fishkin and Ilya Somin.

Fishkin argues that even when individuals are disenfranchised, virtual representation can confer meaningful benefits. He argues that segregation has created communities of shared interest and identity such that when voters in the area vote, they advocate for the interests of nonvoters in their area.^[20] Moran points out that encouraging and preserving segregation is problematic to the goal of racial integration.^[21]

Somin proposes that access to the formal electoral process is less important than the ability to vote with your feet or move to another jurisdiction that may better represent that individual’s preferences. To this, Moran questions how available this option is, as choices about where to live aren’t always purely individualistic, and harsh immigration policies pose threats to successful foot voting.^[22] Other immigrant-focused measures, such as easier pathways to citizenship or voting rights for permanent residents in municipal elections could be effective ways to include the foreign-born in the political process, Moran finds. However, she ultimately concludes that because these measures are unlikely to be adopted any time soon, the best way to protect immigrants’ interests and concerns is to preserve the use of total population rather than CVAP when apportioning districts.^[23]

Lastly, Moran considers how the use of a CVAP metric could constitute a violation of Section 2 of the Voting Rights Act. She takes readers through the process of evaluating a Section 2 challenge under the “totality of the circumstances” test^[24] and applies the test to CVAP, ultimately finding strong arguments that CVAP “would negatively affect minority voters’ ability to participate in the political process.”^[25] Specifically, unusually large districts would diminish Latinx’s ability to influence electoral outcomes, which may then depress Latinx turnout rates. Further, documented educational and socioeconomic disparities between Latinx and non-Hispanic whites in Texas provide further evidence of racial discrimination that impedes access to the ballot box.^[26]

Moran’s Frankel Lecture argues that Evenwel and its implications demand a more robust response from scholars and courts alike. Immigration and its effects on voting equality and access to the political process demands further scrutiny. Applying such scrutiny to the Evenwel case, Moran concludes that Texas must continue to rely on total population, not CVAP, to achieve democratic integrity and a representative voting process. Whether Texas politics allow the status quo to remain as Latinx people continue to grow their share of the voter rolls remains to be seen.

Joseph Fishkin shares many of Moran’s priors and preoccupations, including that virtual representation of disenfranchised groups is not consistent with his preferences.^[27] Both scholars would, in an ideal world, prefer strong actual representation—people voting for who they want in office.^[28] That said, according to Fishkin, virtual representation will always exist—there will always be people who cannot themselves vote.^[29] As a result, we must find ways to make virtual representation better for those who rely on virtual representation to make their voices and preferences heard. In his Commentary, Representation for Those Who Cannot Vote, Fishkin makes two arguments. First, he argues that we should enfranchise more people by lowering the voting age, enfranchising felons, and passing immigration reforms giving people the right to vote.^[30] Second, he argues that virtual representation is best achieved through geography-based representation, where districts are comprised of compact communities with common interests.^[31]

According to Fishkin, the United States disenfranchises more people than is necessary.^[32] By giving felons and immigrants the right to vote, many more people will enjoy actual representation. In addition to these reforms, Fishkin spends ample time advocating for a lower voting age, recommending ages as low as fourteen or sixteen.^[33] He dismisses critiques that teenagers cannot be competent voters, arguing that we allow incompetent adult voters, and further stating that the idea of “competent” voters is historically rooted in efforts to prevent poor, immigrant, or minority individuals from voting.^[34] This idea, he writes, is “antidemocratic.”^[35] Allowing high schoolers to vote would have advantages—for one-third of students, high school is their last level of education. Therefore, Fishkin suggests that lowering the voting age has the potential to turn high schools into sites of civic engagement.^[36] Additionally, lowering the voting age could increase actual representation for families in which teenagers are their first eligible voters.^[37]

Fishkin acknowledges that this is a “maximalist” and unlikely approach to expanding actual representation.^[38] As a result, he suggests strengthening virtual representation by asking how we can best group voters with nonvoters to align their interests.^[39] Geography-based representation, he argues, seems to do a good job of this.^[40] When people live in families and households comprised of adults and children, voters, and nonvoters, there is considerable alignment between them.^[41] There may be exceptions,^[42] he admits, but as a whole, when most members of a community have connections with each other, that community has reasonably good virtual representation. Fishkin uses a 2006 Texas case, LULAC v. Perry, to illustrate that geography-based representation may have grounding in Section 2 jurisprudence.^[43] In LULAC, the U.S. Supreme Court struck down a map that contained a new gerrymandered district drawn by Republicans to have a Hispanic majority. Justice Kennedy explained that the map was not problematic because of its shape, but rather, because it was not compact—it did not form a coherent community.^[44] To Fishkin, this case indicates that Section 2 jurisprudence could include considering whether a community has enough in common to have a “candidate of their choice.”^[45]

“[W]e, as a group, . . . are entitled to have a representative who represents our community,” Fishkin writes.^[46] He believes his proposals of increasing the number of voters and basing virtual representation on compact geographic jurisdictions, when implemented as complements to each other, will help to achieve that goal.^[47]

To Moran’s careful explication of the problems of formal political equality in the franchise, Ilya Somin argues that the franchise is not the only game in town. Every adult voter has a more important and potent form of political power in their arsenal: the power to move.^[48] Somin argues that access and representation in the formal electoral process are less impactful than the ability to “vote with your feet”^[49] by moving to a new political jurisdiction. According to Somin, people vote with their feet through three major foot voting mechanisms: international migration, moving between jurisdictions in a federal system, and choosing between private institutions that provide services often associated with local or regional governments.^[50] In his commentary, Empowering Hispanics to Vote with Their Feet, Somin argues that foot voting offers advantages that the formal ballot-box voting system cannot achieve, and that foot voters have “more meaningful opportunities” to make impactful decisions. Additionally, he argues that Hispanics can benefit from foot voting even more than other groups.^[51]

First, Somin articulates a few main problems with traditional ballot-box voting. He writes that voters have little chance of affecting the policies they live under, and argues that this powerlessness then incentivizes voters to make little to no effort to become informed about such policies.^[52] Somin argues that neither of those issues arise under foot voting because “[w]hen you decide what jurisdiction to live in, that is a decision you have real control over . . . . In turn, that creates strong incentives to seek out relevant information.”^[53]

Moran, in her review of Somin’s work, critiques foot voting as unrealistic and overly constrained by harsh immigration enforcement policies.^[54] Somin addresses her concerns and argues that foot voting is even more compelling and beneficial for Hispanics than other groups, for three reasons. First, they are overwhelmingly a group of immigrants, already familiar with voting with their feet from their immigration to the United States.^[55] Second, research shows they are more willing to make interjurisdictional moves within the United States.^[56] Third, because Hispanics are a minority group with internal diversity, they are more likely to have their interests underrepresented in formal politics, which makes them uniquely positioned to benefit from foot voting.^[57]

Somin then turns to Moran’s critique about enforcement policies with honesty—he admits that these harsh policies pose significant threats to Latinx’s ability to move interjurisdictionally within the United States.^[58] He spends the remainder of his commentary discussing what can be done to expand Latinx access to foot-voting opportunities, including legalizing the status of undocumented immigrants, expanding pathways to legal migration, and building on the Cuba-Nicaragua-Venezuela-Haiti (CNVH) program.^[59] Somin acknowledges that it is difficult to know how feasible these options are and will become in the coming years,^[60] and also proposes curbing exclusionary zoning practices as a more realistic option for increasing foot voting in the United States.^[61]

Before concluding, Somin considers Moran’s Article on preserving use of total population rather than CVAP to draw district lines.^[62] While Somin agrees with the outcome of Evenwel, he is not persuaded that using CVAP would be constitutionally forbidden.^[63] And, regardless of CVAP or total population, Somin believes that even when we have the best possible form of representation in formal ballot-box voting, such a system still isn’t enough to overcome the limitations of ballot-box voting or negate the unique benefits of foot voting.^[64]

Taken together, these cutting-edge contributions to legal scholarship reflect the wisdom of their authors and the excellence and good judgment of the editorial staff of the Houston Law Review. Curating a productive and ideologically diverse set of comments on difficult issues is no mean feat. The editors are a credit to the University of Houston Law Center, the City of Houston, and the State of Texas.