I. Introduction

It is a privilege to participate as a commentator on Professor Rachel Moran’s Frankel Lecture on Hispanic/Latino politics in the United States[1] and how to empower America’s largest minority group to participate in the political system more effectively. The purpose of my contribution to the symposium on her important article is to outline the significance of foot voting for America’s Hispanic population—including potential additional immigrants—and to highlight ways in which we can better empower them to “vote with their feet.” In the process, I apply some of the points developed in my earlier work on foot voting to the context of Hispanics in the United States.

People vote with their feet when they make individual choices about the government policies they wish to live under, as opposed to ballot-box voting, in which each voter usually has only an infinitesimally small chance of determining electoral outcomes or otherwise affecting policy.[2] There are 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.[3]

Part II of this Commentary summarizes the advantages of foot voting over conventional ballot-box voting as a mechanism of political choice. Foot voters have more meaningful opportunities to make decisions that make a difference, and better incentives to become well-informed.[4]

Part III outlines ways in which Hispanics can, and often do, benefit from foot-voting opportunities even more than most other groups in American society. This is so for multiple reasons. Most importantly, they are a group disproportionately consisting of immigrants and children of immigrants.

For obvious reasons, immigrants benefit from opportunities to foot vote through international migration. Immigrant groups also disproportionately benefit from opportunities to vote with their feet within the United States, as they are, on average, more willing to take advantage of them than native-born Americans.

Latino foot voting is not merely a benefit for this group alone. Empowering them to “move to opportunity” also benefits other groups, including native-born Americans of all races. The liberty and prosperity of America’s largest minority group is of obvious significance to the nation as a whole.

Part IV describes ways in which we can enhance foot-voting opportunities for Hispanics. For the large number who are would-be immigrants or undocumented migrants in the United States, the most obvious way is to make legal migration easier and grant legal status to those already in the United States. There is also much that can be done to expand opportunities for Hispanics to vote with their feet within the United States. This Commentary uses the terms “Hispanic” and “Latino” interchangeably to denote the group in question. This is because survey data indicates that group members are divided amongst themselves about which they prefer, with a 2021 Gallup poll finding that 23% prefer “Hispanic,” 15% prefer “Latino,” and 57% express no preference.[5] In that poll, only 4% preferred “Latinx,” a term more popular among academics.[6] Other surveys show an even greater preference for “Hispanic” or “Latino,” and even lower support for “Latinx.”[7] While I do not, myself, have strong opinions about which terms are preferable, I wish to use those more widely accepted by members of the group and avoid one that has so far gained little purchase outside academic and activist circles, and that many group members seem to dislike.[8]

Whatever term we use, it is also important to remember that “Hispanic”—or “Latino”—is in some ways a socially constructed category created by federal government officials and promoted by various government policies.[9] The term papers over the incredible internal diversity of the people swept into this category. As we shall see, that diversity is an additional reason why foot voting can be a powerful tool for expanding freedom of choice.[10]

II. Advantages of Foot Voting

Traditionally, we think of ballot-box voting as the main mechanism by which we make choices about the government policies we live under. Ballot-box voting has a number of virtues and is clearly superior to authoritarianism.[11] But it also has two major systematic flaws that render it inferior to foot voting. The relative advantages of foot voting are more fully described in my book, Free to Move: Foot Voting, Migration, and Political Freedom, which this Part builds on.[12]

The first systemic flaw is that ballot-box voters have little chance of actually affecting the policies they live under. The odds that an individual vote will make a meaningful difference are miniscule: about 1 in 60 million in a presidential election, for example.[13]

Effective freedom requires the ability to make a decisive choice. For example, a person does not have meaningful religious freedom if she has only a 1 in 60 million chance of being able to determine which religion she wishes to practice. A 1 in 60 million chance of deciding what views you are allowed to express is not meaningful freedom of speech.

What is true of freedom of speech and religion also applies to political freedom. A person with only an infinitesimal chance of affecting what kind of government policies he or she is subjected to has little, if any, genuine political choice.[14]

The insignificance of individual votes to outcomes weakens ballot-box voting as a mechanism of political choice from the standpoint of multiple different normative theories of political freedom, including consent theory, nondomination theory, negative liberty, and positive liberty.[15]

The near powerlessness of individual voters also incentivizes them to make little or no effort to become informed about political issues.[16] Surveys consistently show that voters are often ignorant about basic aspects of the political system and government policy.[17] For example, in many polls, only about one-third can even name the three branches of government: executive, legislative, and judicial.[18]

Despite Professor Fishkin’s suggestion to the contrary in his contribution to this symposium,[19] this problem arises even for voters who are altruistic and care about the welfare of the community. It is often rational for such altruistic citizens to undertake the relatively low-cost activity of casting a vote, but also rational for them to devote only minimal effort to becoming informed about the issues at stake because seeking out and assessing political information is much more costly (in terms of time and effort) than voting.[20]

Medical ethics requires doctors to get the “informed consent” of patients before treatment.[21] Government policies also carry serious risks. Like medical operations, they too are often literally matters of life and death. Yet widespread public ignorance ensures that elections rarely secure anything approaching the informed consent of the governed. Elected governments are like doctors over whom individual voters have almost no control, mandating treatments they know little about.

Some scholars argue that political ignorance is not much of a problem because voters can overcome its effects through some combination of information shortcuts—small bits of knowledge that substitute for larger bodies of information, and “miracles of aggregation,” under which the electorate as a whole makes good decisions even if most individual voters have little knowledge.[22] Although shortcuts can be useful in some instances, I have criticized them—and the miracle of aggregation theories—in detail elsewhere.[23] In many situations, the use of shortcuts actually makes the situation worse rather than better.

Voting is not the only mechanism of traditional political participation. Some can also try to influence government policy through lobbying, campaign contributions, and political activism. However, opportunities for such participation beyond voting are highly unequal, with only an estimated 25% of Americans engaging in them at all.[24] Even if access to participation beyond voting could somehow be equalized, we would still be left with the reality that each individual citizen would have only a minuscule chance of influencing policy outcomes. If participation beyond voting were fully equal, each individual participant would have no better odds of changing things by that mechanism than by voting. In both cases, increasing the influence of some necessarily means diminishing that of others.[25]

Things are very different when people vote with their feet. When you decide what jurisdiction to live in, that is a decision you have real control over (assuming you have the ability to make the move). In turn, that creates strong incentives to seek out relevant information.

The same applies to private-sector choices and choices about international migration. Most people probably devote more time and effort to deciding what television set or smartphone to buy than who to vote for in any election. The reason is not that the television set is more important than who governs the country but that the decision about the television has real effects. Both economic theory and extensive empirical evidence show that foot voters seek out more information than ballot-box voters and do a better job of evaluating what they learn.[26]

Professor Moran suggests that foot voting implicitly relies on “virtual representation,” the idea that the interests of people who do not have the right to vote at the ballot box are represented by eligible voters who have similar values or interests—which often may not be the case for Hispanics, especially undocumented immigrants.[27]

But one of the advantages of foot voting is that virtual representation becomes largely unnecessary, at least when it comes to competent adults. So long as there is variation in policy between jurisdictions, with some being more favorable to the needs and interests of would-be foot voters than others, the latter can still make meaningful choices. And that is true even if the variation is largely random in nature or arises only because jurisdictions are trying to serve the needs of currently registered voters in the area.[28] However, the range and quality of options can improve if jurisdictions are incentivized to compete with each other for migrants.[29] It is also sometimes necessary to prevent subnational governments from adopting policies that inhibit mobility.[30]

Moran worries that minor children (who usually cannot make moving decisions on their own) are nonetheless consigned to virtual representation under a foot-voting system.[31] This is true to a large extent. But, of course, the same is also true under ballot-box voting, unless we adopt radical proposals to give children the vote.[32] Parents or guardians are likely better stewards of the interests of minor children than unrelated voters and government officials.[33]

When it comes to undocumented immigrants, Moran’s approach relies on virtual representation more than mine does. Unless undocumented immigrants are granted immediate citizenship rights, they will not have the right to vote for some years, even if their status is legalized. Even after getting voting rights, recent immigrants tend to vote and otherwise participate in politics at lower rates than natives.[34] Thus, even if Moran’s proposed reforms are fully realized, the undocumented and most other recent immigrants will depend on some form of virtual representation at the ballot box, at least for a long time to come.

By contrast, immigrants with legal status face fewer constraints on voting with their feet. They can start doing so immediately and tend to exercise that right at higher rates than natives.[35]

Moran also partly errs in suggesting that foot voting entails a preference for “compact” jurisdictions.[36] While it is true that, other things equal, moving costs are lower and foot voting is more feasible if jurisdictions are relatively small,[37] there are other ways to reduce moving costs. They include devolving more issues to the private sector, allowing overlapping jurisdictions, or some combination of both.[38] Moving costs are a significant constraint on foot voting. But there are a variety of strategies for reducing them and breaking down obstacles to mobility generally.[39]

More compelling is Moran’s concern that immigration enforcement policies can impede foot voting by undocumented immigrants, both directly and indirectly by making it more difficult for them to move away from areas with social networks they rely on in the absence of opportunities to work legally.[40] This Commentary addresses that issue in Part III.

III. How Hispanics Gain from Foot Voting

Many of the ways in which Hispanics benefit from foot-voting opportunities are the same as those for any other group. Like others, they can and do gain from the resulting opportunities to make decisive choices and incentives to make better informed, less biased decisions.[41] Nonetheless, there are several ways in which Hispanics, on average, benefit from foot-voting opportunities even more than most other groups. In some cases, my general work on the advantages of foot voting has even greater relevance for Hispanics than for many others.

The most obvious reason why foot voting is particularly beneficial for Hispanics is that they are disproportionately immigrants or the children of immigrants. As of 2021, some 32% of American Hispanics were immigrants, compared to less than 14% of the population as a whole.[42] Hispanic migration to the United States over the last sixty years has been one of the largest migration waves in American history.[43]

Immigration, of course, is a form of foot voting because it is often motivated by enormous differences in the freedom and economic opportunity provided by national government policies. And variation in government policy is at the heart of most, even if not all, Hispanic migration to the United States.

This is most obvious in the case of Cubans—and more recently, Venezuelans and Nicaraguans—fleeing repressive authoritarian socialist governments that have stifled dissent and created mass poverty in their countries of origin.[44] Venezuela’s horrific government policies have led to the largest refugee crisis in the history of the Western Hemisphere, with over 7 million people fleeing in recent years.[45]

Nicaragua’s story is comparably awful. Under the regime of socialist President Daniel Ortega, repression and poverty have intensified to the point where, as one Nicaraguan human rights activist puts it, many migrants would “rather die than return to Nicaragua.”[46]

Right-wing dictatorships in Central America and elsewhere have also generated significant migration flows, as have governments like that of Haiti, which are simply unable to cope with crime and disorder.[47] Earlier, large waves of Mexican migration to the United States were driven in large part by corruption and lack of opportunity in that country, relative to conditions in the United States.[48]

In addition to benefiting from foot voting through international migration, Hispanic immigrants also benefit disproportionately from interjurisdictional foot voting within the United States. Recent social science research shows that immigrants are more willing to make interjurisdictional moves in search of opportunity than native-born citizens and that is a key source of upward economic mobility for them.[49]

Hispanics can also disproportionately benefit from foot voting because of their status as a minority group and their internal diversity. A classic weakness of democracy is its tendency to shortchange those with minority preferences. Because ballot-box voting is a majoritarian institution, those in the minority for any substantial length of time are necessarily disadvantaged, which often includes ethnic and racial minorities. As a community disproportionately made up of recent immigrants, Hispanics suffer from this problem even more than other groups because recent immigrants participate in politics at lower rates—on average—than native-born citizens.[50]

As Heather Gerken has emphasized, the problem of the tyranny of the majority can be partly mitigated by federalism, in which minorities at the national level can sometimes be majorities in a given subnational jurisdiction, such as a state or local government.[51] But Hispanics are not currently a majority in any state (with the possible exception of New Mexico, which comes close at 49%), and only rarely are a majority in local government jurisdictions.[52] According to 2020 Census data, Hispanics were a majority in only 101 counties, approximately 3.2% of the nation’s total of 3,140 counties.[53] As of early 2022, Hispanics held only about 1.5% of the (mostly local) elected positions in the United States, a much smaller fraction than their percentage of the population.[54]

The sheer size of the Hispanic minority may increase its political clout, augmenting its impact at the ballot box. But this effect is partly mitigated by its enormous internal diversity. For example, Mexicans and other Hispanic groups tend to support the Democratic Party, while Cubans tend to lean Republican.[55] Relative to some other minorities, most notably Blacks, Hispanics have less of a strong sense of common identity, and many prefer to identify with their specific countries of origin, rather than as Hispanic or Latino.[56] This makes it harder to mobilize the group for political action around a single common set of interests.

Minority status and internal diversity are much less disadvantageous when it comes to foot voting. Foot voters can make individually decisive choices and do not generally need the support of a political majority, or even a large, cohesive interest group.[57] Individuals or families can effectively vote with their feet even if they have minority or idiosyncratic preferences. For this reason, foot voting has been a major boon to minority groups throughout most of the nation’s history.[58]

Latino foot voting has immensely benefited the United States as a whole, as well as Latinos themselves. Like immigration from other countries, that from Latin America greatly expands economic productivity, entrepreneurship, and innovation to the benefit of natives, as well as migrants.[59] Also, like immigrants from other countries, Hispanic immigrants are more likely to engage in entrepreneurship than native-born citizens,[60] thereby providing employment opportunities for both immigrant and native workers and improving options for consumers.

As then-President Barack Obama put it in 2016: “In the United States, we have a clear monument to what the Cuban people can build: it’s called Miami.”[61] Freed from the shackles of communism and empowered to participate in a market economy with superior institutions, Cuban immigrants are far more productive than in their country of origin. The United States also, of course, includes numerous monuments to what Mexicans, Venezuelans, migrants from Central America, and other Hispanics can build if given the chance.

IV. Expanding Foot-Voting Opportunities for Hispanics

While Latinos have benefited from foot voting, much can be done to expand their access to such opportunities, which includes both policy changes that expand access to foot voting through international migration, and those that impact foot voting within the U.S. federal system.

A. Expanding Hispanic Foot Voting Through International Migration

There are many ways to increase Hispanic access to foot voting through international migration. Here, this Commentary discusses some of the most significant: legalizing the status of undocumented immigrants, broadening access to asylum, and otherwise expanding pathways to legal migration.

Moran rightly points out that undocumented status severely inhibits foot-voting opportunities for large numbers of Latinos.[62] Some 72%–76% of America’s estimated 10–11 million undocumented immigrants are of Hispanic/Latino origin, for a total of some 7.4 million people.[63] Undocumented status makes foot voting difficult in obvious ways.[64] It closes off access to the legal job market, puts people at risk of deportation, and makes it harder to move to places where migrants have few social ties, and therefore cannot rely on an informal social support network that can, to some extent, substitute access to formal institutions.[65] Undocumented immigrants are also subject to deportation—a dire fate that may consign them to a lifetime of oppression and poverty, and nullify their attempts to vote with their feet for a better life in the United States.

Granting legal status to as many undocumented immigrants as possible would do much to mitigate this problem. There are many possible ways of doing so, ranging from limited steps for specific groups—such as DACA (Deferred Action for Childhood Arrivals) recipients—to time limitations on deportation (which would forbid it in the case of migrants who have been in the United States for a certain period of time), to comprehensive amnesty.[66] While I would prefer the more sweeping options, even incremental ones could potentially make a significant difference for hundreds of thousands or even millions of people. For example, merely granting permanent legal status to DACA participants (migrants who were brought into the United States illegally as minors), would cover somewhere between 578,000 (the number of current active DACA recipients) and 1.16 million people (the estimated size of the population eligible for DACA), most of them Hispanic migrants.[67]

Legalization would not only expand foot-voting opportunities for currently undocumented migrants but also enable them to make much greater contributions to our economy and society. They could then come out of the black-market economy and work legally, thereby becoming more productive. It would also be easier for them to pursue educational opportunities and otherwise improve their skills.[68]

A second way to expand foot-voting opportunities for Hispanics is making legal entry into the United States easier to begin with, thus making it possible for more people to escape oppression and poverty without ending up with undocumented status. Elsewhere, I have argued that this should take the form of a presumption in favor of a right to free migration,[69] as opposed to the status quo, in which there is a presumption of exclusion. This would be the best way to increase political freedom through expanded foot-voting options for both Hispanic and other migrants.

Such a radical shift is likely not possible anytime soon. But more incremental steps in the right direction could also provide great value. One step that would have special significance for Hispanic migrants is expanding the grounds on which entrants into the United States can claim asylum.

Under current law, eligibility for asylum is restricted to people who meet a relatively narrow legal definition of “refugee,” which is limited to:

any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[70]

Many Latin American asylum seekers are fleeing regimes—like those of Cuba and Venezuela—that engage in “equal-opportunity” oppression that does not primarily target members of specific groups, but rather is imposed on the population as a whole.[71] Other Hispanic migrants are fleeing generalized societal violence and breakdown of social order, such as in Haiti.[72]

Expanding the legal definition of “refugee” to include such cases would grant refuge—including permanent residency rights—to large numbers of Latino migrants fleeing terrible conditions. It would also bring the definition in line with ordinary common-sense notions of what a refugee is. At least in my experience, laypeople are generally surprised to learn that people fleeing war, violence, or even the most severe equal opportunity oppression do not legally qualify as refugees, even though they are obviously threatened with great harm and severe human rights violations.

In other work, I have set out a number of possible options for expanding the legal definition, including some advanced by other scholars.[73] The most obvious—expanding the definition to cover equal-opportunity repression, particularly in the case of people fleeing authoritarian states—would do much to help Latino migrants.[74] An extension of the term to cover anyone fleeing an area with widespread war or violence would also help many.[75]

Finally, we can expand international foot-voting opportunities for Hispanic migrants by building on the Cuba-Nicaragua-Venezuela-Haiti (CNVH) program. In January 2023, the Biden Administration expanded the approach used by the successful Uniting for Ukraine private migrant sponsorship program (which covers Ukrainians fleeing the Russian invasion of their country) to include a combined total of up to 30,000 migrants per month from these four Latin American countries.[76]

Participants in the Uniting for Ukraine and CNVH programs can quickly enter the United States and acquire the “right to live and work here for up to two years, if they have a private U.S. sponsor who commits to supporting them financially.”[77] During the first six months of its operation, some 160,000 migrants entered the United States legally under the CNVH program.[78] Like Uniting for Ukraine, CNVH cuts through many bureaucratic obstacles that normally impede the acquisition of legal entry into the United States.[79]

Unfortunately, the effectiveness of CNVH has been undercut by the 30,000 per month cap, which has led to a massive backlog in applications.[80] The cap should be lifted.

In addition, CNVH can be expanded to cover migrants from other countries facing oppression and violence. The authorizing statute empowers the executive to grant parole “on a case-by-case basis for urgent humanitarian reasons or significant public benefit [to] any alien applying for admission to the United States,” except those otherwise qualifying for refugee status.[81] Migrants from several other Latin American nations surely have “urgent humanitarian reasons” to flee as well.

CNVH is currently the subject of a lawsuit filed by twenty Republican state governments challenging its legality.[82] In my view, the arguments against the program’s legality are without merit.[83] A federal district court ruled that the plaintiff states lack standing to challenge the legality of the program.[84] But we do not yet know for sure what courts will ultimately decide on appeal.

If the program survives legal challenge, it should be expanded. Ultimately, Congress should enact “adjustment act” legislation giving participants permanent resident status, which would enable participants to continue to live and work in the United States, as was previously done with parole recipients from many other countries during the Cold War and beyond.[85] An adjustment act would protect CNVH recipients from deportation after the two-year parole period runs out, thereby enabling continued foot-voting choices on their part, and also enabling them to continue making contributions to the U.S. economy.[86]

It is admittedly hard to assess to what extent these ideas will be feasible in the near future. At the time of this writing, it is possible Donald Trump will once again be elected president in the 2024 election. If so, he and his allies plan to enact draconian immigration policies that would go in the exact opposite of the direction suggested here. Their putative plans include drastically increasing deportations and the use of detention, and severe new restrictions on legal immigration.[87]

But each of these proposals does have the political virtue of having incremental and more sweeping variants. Parole, asylum, and other avenues for legal migration can all be expanded at the margin, even if larger increases prove infeasible. The same goes for legalizing undocumented migrants currently in the United States. Even if we cannot grant legal status to all or most of them, it is possible to do so for subgroups, such as those who have been in the United States for a long time, DACA recipients who were brought to the United States as minors, and so on.[88]

B. Expanding Foot-Voting Opportunities Within the United States

Much can also be done to expand Latino foot-voting opportunities within the United States. Doing so can offer people a wider range of options in the U.S. federal system and the private sector.

Some of the steps necessary to expand foot-voting opportunities through international migration would also give the migrants in question a wider range of foot-voting options within the United States. Legalizing undocumented migrants would enable them to move around more freely between jurisdictions.[89] Empowering more migrants to enter the country legally would also enable them to make choices between state and local governments within the United States.

Many aspects of the immigration enforcement regime burden current U.S. citizens and permanent residents, as well as migrants themselves, and thereby impede their mobility.[90] This is even more true of Hispanics than most other groups. Those who have family members who are undocumented immigrants are an obvious example. Fear that the authorities may detect and deport these family members limits mobility.

Latinos are also disproportionately burdened by the racial profiling that accompanies immigration enforcement. That pernicious practice is currently officially permitted as a tool of immigration enforcement in areas within one hundred miles of the coastline or international borders, an area encompassing locations where some two-thirds of Americans reside.[91]

Latinos are also likely disproportionately represented among the thousands of U.S. citizens and legal residents who get accidentally swept up in immigration detention—or sometimes even deported—due to weak due process protections.[92] In addition to the other harms inflicted on them, people who are detained or deported obviously cannot vote with their feet! Legalizing the status of undocumented migrants and curbing abusive immigration enforcement practices will enhance foot-voting opportunities for Hispanic citizens and permanent residents of the United States, as well as new migrants themselves.

However, some reforms could greatly expand foot-voting opportunities within the United States that are unrelated to immigration policy. Perhaps the most significant is curbing exclusionary zoning.

In many parts of the country, zoning rules block the construction of new housing. A cross-ideological array of economists and land-use scholars have concluded that such “exclusionary zoning” is responsible for massive housing shortages in many parts of the United States and that it also cuts off millions of people—particularly the poor and minorities—from economic and social opportunities.[93]

The effects are enormous. Cutting back zoning in some of the most restrictive jurisdictions in the United States to the level prevalent in the median American city could open housing and job opportunities for millions of people and massively increase gross domestic product.[94]

An important new study by economists Gilles Duranton and Diego Puga finds that simple relaxation of zoning restrictions in seven major U.S. urban areas would increase per capita U.S. output by almost 8%.[95] Such estimates are only imprecise approximations. But even if the economic benefits of zoning deregulation are several times smaller than this, they would still be very great.

Moreover, exclusionary zoning has a long history of being used for racist purposes to exclude Blacks and other minorities, including, sometimes, Hispanics.[96] In 2022, the Congressional Hispanic Caucus Institute published a paper summarizing evidence indicating that exclusionary zoning significantly reduces Hispanic homeownership rates and access to housing.[97] As the author points out, the history of racism in zoning law has impacted Hispanics, as well as Blacks and other groups.[98]

Today, Hispanics are likely to benefit disproportionately from any significant reduction in exclusionary zoning. Because many are recent immigrants and economically disadvantaged, they are disproportionately excluded by rules that artificially increase the price of housing by making it difficult or impossible to build new housing in response to demand.[99]

In recent years, some states have enacted reform legislation cutting back on exclusionary zoning.[100] But serious problems remain in many parts of the country, and some reform efforts have failed or stalled.[101] More effective YIMBY (“Yes in My Backyard”) zoning reforms would greatly benefit Hispanics and other minority groups and make the economy more productive generally—in the process enormously benefiting all of society.

In other works,[102] I have argued that the Supreme Court should eventually overrule or severely limit its decision in Village of Euclid v. Ambler Realty Company, the 1926 ruling holding that exclusionary zoning is largely exempt from constitutional challenge.[103]

This Commentary does not attempt to assess whether the best approach to cutting back exclusionary zoning is judicial review, political reform, or some combination of the two, though the latter is the most promising.[104] But I will note that this may be politically easier than in the past because opposition to racial and ethnic integration among whites has waned in recent years. Over the last decade, both Democrats and Republicans have been more open to racial and ethnic integration than in the past.[105] This shift in attitudes is one reason why Donald Trump’s efforts in the 2020 election to appeal to white suburban voters through stimulating fear of racial integration largely failed.[106]

There are many other ways to expand domestic foot-voting opportunities, all of which would benefit Hispanics and members of other groups.[107] But, curbing exclusionary zoning is by far the most significant and most likely to disproportionately help Hispanics and other racial and ethnic minorities.

Much can also be done to expand foot-voting opportunities in the private sector, and between state and local governments.[108] One example of special relevance to Hispanics is instituting school choice, which is of special benefit to the poor and minorities and can potentially improve the quality of education in areas where it is adopted.[109]

Expanding foot-voting opportunities isn’t necessarily inimical to expanding at least some types of ballot-box voting options. Like Professor Moran, I think it desirable that states avoid apportioning state legislative districts by formulas that do not consider total population, and thereby tend to disadvantage Hispanics (many of whom are not citizens), and potentially also other groups that include a large proportion of noncitizens or children.[110]

I believe the Supreme Court was likely correct to conclude in Evenwel v. Abbott that states can constitutionally rely on total population rather than voter population or citizen population in allocating legislative districts.[111] But I also do not believe the Constitution forbids the use of these other approaches.[112]

On the other hand, I do believe that reliance on total population is constitutionally mandated when it comes to the apportionment of congressional districts between states.[113] As Professor Moran notes,[114] the Supreme Court avoided resolving this issue when a case challenging the Trump Administration’s efforts to base the count on citizen voting-age population (CVAP) was dismissed on standing grounds.[115] The incoming Biden Administration terminated Trump’s plans soon afterward.[116] Thus, the Court has never definitively addressed this constitutional issue. If it arises again in the future, hopefully, the Justices will make the right decision.

But even the best possible system of representation is unlikely to overcome the significant limitations of ballot-box voting or negate the major advantage of foot voting.[117] There is, therefore, good reason to consider ways in which we can increase foot-voting opportunities for America’s largest minority group.

V. Conclusion

Hispanics have been among the biggest beneficiaries of foot-voting opportunities in recent American history. In the process, they have also greatly benefited the nation as a whole. But much can be done to expand foot-voting options for Hispanics, along with others. If we take these steps, there will be vast additional benefits for both immigrants and natives, and for both Hispanics and members of other groups.

  1. See generally Rachel Moran, The Perennial Eclipse: Race, Immigration, and How Latinx Count in American Politics, 61 Hous. L. Rev. 719 (2024).

  2. For a more detailed discussion of this distinction, see Ilya Somin, Free to Move: Foot Voting, Migration, and Political Freedom 1–2, 15–17 (rev. ed. 2022).

  3. Id. at 7.

  4. This summarizes ideas developed in id. at ch. 1. For a shorter overview, see Ilya Somin, How Judicial Review Can Help Empower People to Vote with Their Feet, 29 Geo. Mason L. Rev. 509, 510–15 (2022) (symposium on “The Will of the People”).

  5. Frank Newport, Controversy over the Term ‘Latinx’: Public Opinion Context, Gallup (Jan. 7, 2022), https://news.gallup.com/opinion/polling-matters/388532/controversy-term-latinx-public-opinion-context.aspx [https://perma.cc/MLN4-2MFA].

  6. See id.

  7. See Luisita Lopez Torregrosa, Many Latinos Say ‘Latinx’ Offends or Bothers Them. Here’s Why., NBC News (Dec. 14, 2021, 3:35 AM), https://www.nbcnews.com/think/opinion/many-latinos-say-latinx-offends-or-bothers-them-here-s-ncna1285916 [https://perma.cc/7PUV-V7XV] (summarizing such poll results).

  8. E.g., id. (outlining reasons why “Latinx” offends or bothers many Latinos).

  9. For an overview of the relevant history, see David E. Bernstein, Classified: The Untold Story of Racial Classifications in America ch. 2 (2022).

  10. See infra Part II.

  11. For an overview of the reasons why and relevant data, see Morton H. Halperin et al., The Democracy Advantage: How Democracies Promote Prosperity and Peace (rev. ed. 2010). Despite my own reservations about many aspects of the democratic process, I nonetheless hold that democracy—even with badly flawed voters—is preferable to despotism. For discussion, see Ilya Somin, Democracy and Political Ignorance: Why Smaller Government Is Smarter 120–21 (rev. ed. 2016).

  12. See generally Somin, supra note 2.

  13. Andrew Gelman et al., What Is the Probability Your Vote Will Make a Difference?, 50 Econ. Inquiry 321 (2012). For more detailed discussion of this and alternative methods of estimating the odds that a vote might be decisive, see Somin, supra note 11, at 75–79.

  14. See Somin, supra note 2, at ch. 1 (developing this point in greater detail).

  15. See id. at 20–27 (going over the implications for each of these theories).

  16. Cf. Somin, supra note 4, at 512 (discussing the incentives to be an informed voter).

  17. For extensive overviews, see, e.g., Somin, supra note 11, at ch. 1.

  18. Id. at 20; Rick Shenkman, Just How Stupid Are We?: Facing the Truth About the American Voter (2008).

  19. See Joseph Fishkin, Representation for Those Who Can’t Vote, 61 Hous. L. Rev. 755, 773 (2024) (claiming that altruism and civic duty are blind spots for scholars who emphasize the importance of the low likelihood of decisiveness of voting).

  20. For a more detailed discussion, see Somin, supra note 11, at 78.

  21. See, e.g., Opinion 8.08 - Informed Consent, Am. Med. Ass’n J. Ethics (July 2012), http://journalofethics.ama-assn.org/2012/07/coet1-1207.html [https://perma.cc/T4NA-TE7Q].

  22. See, e.g., Donald A. Wittman, The Myth of Democratic Failure: Why Political Institutions Are Inefficient (1995); Hélène Landemore, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many (2013); James A. Stimson, A Macro Theory of Information Flow, in Information and Democratic Processes 345 (John A. Ferejohn & James H. Kuklinski eds., 1990); James Surowiecki, The Wisdom of Crowds: Why the Many Are Smarter than the Few and How Collective Wisdom Shapes Business, Economies, Societies, and Nations ch. 12 (2004).

  23. Somin, supra note 11, at ch. 3.

  24. For discussion of the implications of this inequality on political choice, see Somin, supra note 2, at 35–36.

  25. Id. at 36.

  26. For an extensive overview, see Somin, supra note 11, at ch. 5.

  27. Moran, supra note 1, at 730–31. For a classic discussion of virtual representation, see Hanna Fenichel Pitkin, The Concept of Representation 171–86 (1967).

  28. Somin, supra note 2, at 46.

  29. Id.

  30. Id. at 168–69; see also infra Section IV.B (discussing exclusionary zoning).

  31. Moran, supra note 1, at 730.

  32. For examples of proposals to give children the right to vote, see, e.g., Joanne C. Lau, Two Arguments for Child Enfranchisement, 60 Pol. Stud. 860 (2012); Daniel Weinstock, What’s So Funny About Voting Rights for Children?, 18 Geo. J.L. & Pub. Pol’y 751 (2020); John Wall, Give Children the Vote: On Democratizing Democracy (2022); Matthew Weaver, Lower Voting Age to Six to Tackle Bias Against the Young, Says Academic, Guardian (Dec. 6, 2018), https://www.theguardian.com/politics/2018/dec/06/give-six-year-olds-the-vote-says-cambridge-university-academic [https://perma.cc/2AAX-F7AC]. I have tentatively proposed this myself, in the case of minors with above-average levels of political knowledge. Ilya Somin, Should We Let 16 Year Olds Vote?, Wash. Post: Volokh Conspiracy (Sept. 19, 2014, 5:18 PM), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/19/should-we-let-16-year-olds-vote/?utm_term=.ea9529c2c42a [https://perma.cc/4LZM-ZSFE].

  33. I discuss the issue of children and foot voting in greater detail in Somin, supra note 2, at 54–55.

  34. For citations to relevant studies, see id. at 130.

  35. See discussion infra Parts II–III.

  36. Moran, supra note 1, at 730.

  37. Somin, supra note 2, at 49.

  38. Id. at 50.

  39. Id. at 49–53; infra Section IV.B.

  40. Moran, supra note 1, at 733.

  41. See discussion supra Part II.

  42. Nicole Ward & Jeanne Batalova, Frequently Requested Statistics on Immigrants and Immigration in the United States, Migration Pol’y Inst. (Mar. 14, 2023), https://www.migrationpolicy.org/article/frequently-requested-statistics-immigrants-and-immigration-united-states [https://perma.cc/NCZ8-6CF9].

  43. For a recent overview, see Gordon Hanson et al., US Immigration from Latin America in Historical Perspective, J. Econ. Persp., Winter 2023, at 199.

  44. On the Cuban case, see Jorge Duany, Cuban Migration: A Postrevolution Exodus Ebbs and Flows, Migration Pol’y Inst. (July 6, 2017), https://www.migrationpolicy.org/article/cuban-migration-postrevolution-exodus-ebbs-and-flows [https://perma.cc/JS3K-PV69]; Ilya Somin, Courts Should Uphold Valuable Immigration Policy, Hill (Sept. 2, 2022, 1:00 PM), https://thehill.com/opinion/congress-blog/4184182-courts-should-uphold-valuable-immigration-policy/ [https://perma.cc/V3VW-NNKL] (highlighting a similar trend in Venezuela and Nicaragua). For recent developments, see Daniel Allott & Jordan Allott, Inside the Great Cuban Exodus, Wash. Exam’r (June 23, 2023, 5:53 AM), https://www.washingtonexaminer.com/news/inside-great-cuban-exodus [https://perma.cc/C98E-FGX9] (describing in detail the recent Cuban exodus and the heightened repression causing it).

  45. See Vanessa Buschschlüter, Venezuela Crisis: 7.1m Leave Country Since 2015, BBC (Oct. 17, 2022), https://www.bbc.com/news/world-latin-america-63279800 [https://perma.cc/Q7S4-JDZF]; Betilde Muñoz-Pogossian & Alexandra Winkler, The Persistence of the Venezuelan Migrant and Refugee Crisis, Ctr. for Strategic & Int’l Stud. (Nov. 27, 2023), https://www.csis.org/analysis/persistence-venezuelan-migrant-and-refugee-crisis [https://perma.cc/F56Y-YEDC].

  46. Bernd Debusmann, Jr., US Immigration: ‘They’d Rather Die than Return to Nicaragua,’ Brit. Broad. Corp. (Dec. 12, 2022), https://www.bbc.com/news/world-us-canada-61735603 [https://perma.cc/36CA-YZAY].

  47. On recent developments in Haiti that have stimulated increased outmigration, see, e.g., Roseval Supreme, This Is the Worst Crisis I’ve Seen in Haiti, Newsweek (Nov. 1, 2022, 7:00 AM), https://www.newsweek.com/this-worst-crisis-ive-seen-haiti-opinion-1755890 [https://perma.cc/4ZAV-J2SK] (documenting widespread violence and suffering); Vanda Felbab-Brown, Haiti in 2023: Political Abyss and Vicious Gangs, Brookings Inst. (Feb. 3, 2023), https://www.brookings.edu/articles/haiti-in-2023-political-abyss-and-vicious-gangs/ [https://perma.cc/7BG3-7YSG].

  48. See, e.g., Felipe Fernández-Armesto, Our America: A Hispanic History of the United States 247–48 (2014).

  49. See Ran Abramitzky & Leah Boustan, Streets of Gold: America’s Untold Story of Immigrant Success 87–88 (2022).

  50. See, e.g., Tova Andrea Wang, Expanding Citizenship: Immigrants and the Vote, Democracy: J. Ideas (2013), https://democracyjournal.org/magazine/28/expanding-citizenship-immigrants-and-the-vote/ [https://perma.cc/X5TR-UP9M]; Bryan Caplan, Why Should We Restrict Immigration?, 32 Cato J. 5, 13–14 (2012) (summarizing relevant studies on this point).

  51. See generally Heather K. Gerken, Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4 (2010); Heather K. Gerken, A New Progressive Federalism, Democracy: J. Ideas (2012), http://www.democracyjournal.org/24/a-new-progressive-federalism.php?page=1 [https://perma.cc/6CE9-6CXJ]; Heather K. Gerken, Dissenting by Deciding, 57 Stan. L. Rev. 1745 (2005).

  52. See Hispanic Population by State, World Population Rev., https://worldpopulationreview.com/state-rankings/hispanic-population-by-state [https://perma.cc/Y8MX-BA4Y] (last visited Jan. 7, 2024); Jeffrey S. Passel et al., U.S. Hispanic Population Continued Its Geographic Spread in the 2010s, Pew Rsch. Ctr. (Feb. 3, 2022), https://www.pewresearch.org/short-reads/2022/02/03/u-s-hispanic-population-continued-its-geographic-spread-in-the-2010s/ [https://perma.cc/FB2E-VLXW].

  53. Passel et al., supra note 52.

  54. Rafael Bernal, Despite Growth, Hispanic Representation Still Minuscule, Hill (Jan. 12, 2022, 9:00 AM), https://thehill.com/latino/589335-despite-growth-hispanic-representation-still-minuscule/ [https://perma.cc/L4TN-NHEJ].

  55. See, e.g., Jens Manuel Krogstad, Most Cuban American Voters Identify as Republican in 2020, Pew Rsch. Ctr. (Oct. 2, 2020), https://www.pewresearch.org/short-reads/2020/10/02/most-cuban-american-voters-identify-as-republican-in-2020/ [https://perma.cc/4KJL-G2VU]; Jens Manuel Krogstad et al., Most Latinos Say Democrats Care About Them and Work Hard for Their Vote, Far Fewer Say So of GOP, Pew Rsch. Ctr. (Sept. 29, 2022), https://www.pewresearch.org/race-ethnicity/2022/09/29/hispanics-views-of-the-u-s-political-parties/ [https://perma.cc/3HKC-SB4D].

  56. See Bernstein, supra note 9, at ch. 2.

  57. See Somin, supra note 4, at 514 (discussing this point in more detail).

  58. See Somin, supra note 2, at 60–62 (summarizing evidence).

  59. I review the relevant evidence in detail in Ilya Somin, Immigration and the Economic Freedom of Natives, 37 Pub. Affs. Q. 226 (2023) (symposium on immigration).

  60. María D. Suárez, An Assessment of Hispanic Entrepreneurship in the United States, J. Multidisciplinary Rsch., Fall 2016, at 67.

  61. President Barack Obama, Remarks by President Obama to the People of Cuba (Mar. 22, 2016) (transcript available at https://obamawhitehouse.archives.gov/the-press-office/2016/03/22/remarks-president-obama-people-Cuba) [https://perma.cc/3694-4CGD].

  62. Moran, supra note 1, at 733–34.

  63. Evin Millet & Jacquelyn Pavilon, Demographic Profile of Undocumented Hispanic Immigrants in the United States, Ctr. for Migration Stud. (Oct. 14, 2022), https://cmsny.org/publications/hispanic-undocumented-immigrants-millet-pavilon-101722/ [https://perma.cc/LD8T-BRNT].

  64. See generally Sarah R. Coleman, The Walls Within: The Politics of Immigration in Modern America (2021) (surveying a wide range of policies constraining undocumented immigrants).

  65. Moran emphasizes this latter point. See Moran, supra note 1, at 734.

  66. For discussion of various options, see Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law 244–45 (2020).

  67. Deferred Action for Childhood Arrivals (DACA) Data Tools, Migration Pol’y Inst. (Mar. 31, 2023), https://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles [https://perma.cc/M73W-NTB2].

  68. Cf. Giovanni Peri & Reem Zaiour, Citizenship for Undocumented Immigrants Would Boost U.S. Economic Growth, Ctr. Am. Progress (June 14, 2021), https://www.americanprogress.org/article/citizenship-undocumented-immigrants-boost-u-s-economic-growth/ [https://perma.cc/N6DY-DF7U].

  69. Somin, supra note 2, at chs. 3, 5–6. For other arguments along similar lines, see, generally Joseph H. Carens, The Ethics of Immigration (2013); Bryan Caplan & Zack Weinersmith, Open Borders: The Science and Ethics of Immigration (Calista Brill & Rachel Stark, eds., 2019).

  70. 8 U.S.C. § 1101(a)(42)(A) (defining “refugee”); § 1158(b)(1)(A) (requiring refugee status for a grant of asylum).

  71. See supra Part III for a discussion of these countries. On the idea of “equal opportunity” oppression, see Ilya Somin, The Case for Expanding the Legal Definition of “Refugee,” Reason: Volokh Conspiracy (June 20, 2022, 4:12 PM), https://reason.com/volokh/2022/06/20/the-case-for-expanding-the-legal-definition-of-refugee/ [https://perma.cc/477N-3PNE].

  72. For a discussion of Haiti and other Latin American countries, see supra Part III.

  73. Somin, supra note 2, at 183–88.

  74. Id. at 185.

  75. Id. at 184–85.

  76. See Biden-⁠Harris Administration Announces New Border Enforcement Actions, White House (Jan. 5, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/05/fact-sheet-biden-harris-administration-announces-new-border-enforcement-actions/ [https://perma.cc/AH4A-C76R]. On the connections between the CVNH program and Uniting for Ukraine, see Ilya Somin, We Sponsored Refugees Under a New Biden Program. The Results Were Astonishing, Wash. Post (Jan. 3, 2023, 8:00 AM), https://www.washingtonpost.com/opinions/2023/01/03/ukraine-refugees-biden-administration-program/ [https://perma.cc/A649-TGLZ].

  77. Somin, supra note 44.

  78. Id.; Fact Sheet: Data from First Six Months of Parole Processes for Cubans, Haitians, Nicaraguans, and Venezuelans Shows that Lawful Pathways Work, Dep’t. Homeland Sec. (July 25, 2023), https://www.dhs.gov/news/2023/07/25/fact-sheet-data-first-six-months-parole-processes-cubans-haitians-nicaraguans-and [https://perma.cc/MDB5-WXPB].

  79. Under Uniting for Ukraine, approvals come as fast as within just a few days. See Somin, supra note 76 (recounting my experience as a sponsor in the program).

  80. See Camilo Montoya-Galvez, 1.5 Million Apply for U.S. Migrant Sponsorship Program with 30,000 Monthly Cap, CBS News (May 22, 2023, 9:56 PM), https://www.cbsnews.com/amp/news/us-migrant-sponsorship-program-cuba-haiti-nicaragua-venezuela-applications/ [https://perma.cc/5KG8-Y79H]; see also David Bier & Ilya Somin, Biden Has the Right Border Plan, but Arbitrary Caps Have Actually Blocked Legal Migration, USA Today (Dec. 13, 2023, 6:00 PM), https://www.usatoday.com/story/opinion/2023/11/26/biden-border-plan-caps-migrants-asylum-seekers/71659363007/ [https://perma.cc/XU22-2AMZ].

  81. 8 U.S.C. § 1182(d)(5)(A)–(B). This authority was originally granted to the Attorney General. Id. It was later transferred to the Secretary of the Department of Homeland Security (DHS). See 6 U.S.C. § 202(4).

  82. Ilya Somin, Twenty Red States File Badly Flawed Lawsuit Seeking to Terminate Private Sponsorship Program for People Fleeing Socialism and Oppression in Four Latin American Nations, Reason: Volokh Conspiracy (Jan. 25, 2023, 4:15 PM), https://reason.com/volokh/2023/01/25/twenty-red-states-file-badly-flawed-lawsuit-seeking-to-terminate-private-sponsorship-program-for-people-fleeing-socialism-and-oppression-in-four-latin-american-nations [https://perma.cc/J72Q-S2W4]. For a discussion of the issues involved, see Somin, supra note 2. I have authored an amicus brief in the case outlining why the suit is without merit. See Brief of Amici Curiae Professor Ilya Somin et al., in Support of Defendants, Texas v. Dep’t of Homeland Sec., No. 6:23-cv-00007, https://www.cato.org/sites/cato.org/files/2023-07/TX-v-DHS_Motion-Brief.pdf [https://perma.cc/J6CF-HLMC].

  83. See Brief of Amici Curiae Professor Ilya Somin et al., supra note 82, at 3–5.

  84. See generally Texas v. Dep’t. of Homeland Sec., No. 6:23-CV-00007 (S.D. Tex. Mar. 8, 2024).

  85. I make the case for this step in greater detail in Ilya Somin, US Needs to Protect Ukrainian Refugees in the United States, Bos. Globe (Apr. 21, 2023, 11:38 AM), https://www.bostonglobe.com/2023/04/21/opinion/ukrainian-migrants-permanent-residency-work-permits/ [https://perma.cc/RM8X-PMH6].

  86. Id.

  87. For an overview, see Charlie Savage et al., Sweeping Raids, Giant Camps and Mass Deportations: Inside Trump’s 2025 Immigration Plans, N.Y. Times (Nov. 11, 2023), https://www.nytimes.com/2023/11/11/us/politics/trump-2025-immigration-agenda.html [https://perma.cc/P3YT-2ZL5].

  88. See discussion supra Section IV.A.

  89. See discussion supra Section IV.A.

  90. See Somin, supra note 2, at 80–83. See generally Chandran Kukathas, Immigration and Freedom (2021) (detailing the ways in which natives’ liberty and mobility are constrained by immigration restrictions).

  91. . Matt Apuzzo & Michael S. Schmidt, U.S. to Continue Racial, Ethnic Profiling in Border Policy, N.Y. Times (Dec. 5, 2014), https://www.nytimes.com/2014/12/06/us/politics/obama-to-impose-racial-profiling-curbs-with-exceptions.html [https://perma.cc/PL8Q-7TY2]; Somin, supra note 2, at 81–82.

  92. Somin, supra note 2, at 81.

  93. See, e.g., Richard D. Kahlenberg, Excluded: How Snob Zoning, NIMBYism, and Class Bias Build the Walls We Don’t See (2023); David Schleicher, Stuck! The Law and Economics of Residential Stagnation, 127 Yale L.J. 78 (2017). For recent overviews of the evidence, see Council of Economic Advisers, Economic Report of the President, at ch. 4 (2024); Joseph Gyourko et al., The Local Residential Land Use Regulatory Environment Across U.S. Housing Markets: Evidence from a New Wharton Index, 124 J. Urban Econ., July 2021, at 9–12, https://www.sciencedirect.com/science/article/pii/S009411902100019X [https://perma.cc/NYP6-29YW]; Edward Glaeser, Reforming Land Use Regulations, Brookings Inst. (Apr. 24, 2017), https://www.brookings.edu/research/reforming-land-use-regulations/ [https://perma.cc/JQ9D-TAMN].

  94. For overviews of the evidence, see Joseph Gyourko et al., supra note 93, at 7–8; Glaeser, supra note 93.

  95. Gilles Duranton & Diego Puga, Urban Growth and Its Aggregate Implications, 91 J. Econometric Soc’y 2219, 2222 (Nov. 2023).

  96. See, e.g., Jessica Trounstine, Segregation by Design: Local Politics and Inequality in American Cities 91–98 (2018) (discussing racially exclusionary zoning practices in U.S. history and reasons for them). See generally Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017) (detailing the history of exclusionary zoning practices in the United States being used for discriminatory purposes).

  97. Fatima Sierra-Vargas, Rethinking Policy: The Effect of Zoning Laws and Land-Use Regulations on Hispanic Homeownership Rates, in Congressional Hispanic Caucus Institute Policy Briefs & White Papers 1, 2–3 (2022), https://chci.org/postgraduate-fellow-policy-briefs/ [https://perma.cc/4CJ9-UBGM] (scroll to “2022 Postgraduate Fellows Policy Briefs”; then click on “Housing”).

  98. Id. at 1.

  99. Id. at 3.

  100. For an overview of recent efforts, see Eli Kahn & Salim Furth, Breaking Ground: An Examination of Effective State Housing Reforms in 2023, Mercatus Ctr. 2–5 (Aug. 1, 2023), https://www.mercatus.org/research/policy-briefs/breaking-ground-examination-effective-state-housing-reforms-2023 [https://perma.cc/3VY5-SLYQ]; see also Council of Econ. Advisers, supra note 93, at 166–67 (describing reform efforts).

  101. See, e.g., id. at 3–6 (describing failures in several states).

  102. Joshua Braver & Ilya Somin, The Constitutional Case Against Exclusionary Zoning, Tex. L. Rev. (forthcoming) (manuscript at 7–8) (on file with author), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4728312 [https://perma.cc/CKF9-USYB]; Ilya Somin, Essay, The Case for Expanding the Anticanon of Constitutional Law, 2023 Wis. L. Rev. 575, 592–97 (2023) (symposium on “Controlling the Supreme Court: Now and ‘Far into the Future’”).

  103. Village of Euclid v. Amber Realty Co., 272 U.S. 365, 368, 374, 395–96 (1926). However, Euclid can be interpreted as a purely Due Process Clause case, and therefore, inapplicable to the Takings Clause of the Fifth Amendment. See U.S. Const. amend. V; Braver & Somin, supra note 102, at 28; cf. Lingle v. Chevron, 544 U.S. 528, 540–41 (2005) (describing Euclid as “a historic decision holding that a municipal zoning ordinance would survive a substantive due process challenge so long as it was not ‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare’” (quoting Euclid, 272 U.S. at 395) (emphasis omitted)).

  104. See Braver & Somin, supra note 102, at 48–51.

  105. For a recent study, see Keith Ihlanfeldt & Cynthia Fan Yang, Political and Racial Neighborhood Sorting: How Is It Changing?, Pub. Choice (Oct. 18, 2023), https://link.springer.com/article/10.1007/s11127-023-01120-6 [https://perma.cc/W4FL-X3RQ].

  106. Geoffrey Skelley et al., Why the Suburbs Have Shifted Blue, FiveThirtyEight (Dec. 16, 2020), https://fivethirtyeight.com/features/why-the-suburbs-have-shifted-blue/ [https://perma.cc/BK8N-LZG7].

  107. For many examples, see Somin, supra note 2, at chs. 2, 4, 7.

  108. See id. at ch. 4.

  109. For overviews of the evidence indicating significant gains for poor and minority students, including those who remain in public schools facing greater competition, see, e.g., Dennis Epple et al., School Vouchers: A Survey of the Economics Literature, 55 J. Econ. Literature 441, 466–67, 478 (2017) (finding benefits for both those who move and those who remain); Anna J. Egalite, Measuring Competitive Effects from School Voucher Programs: A Systematic Review, 7 J. Sch. Choice 443, 452 (2013) (finding such effects in all but one of twenty-one studies reviewed); Christopher Campos & Caitlin Kearns, The Impact of Public School Choice: Evidence from Los Angeles’s Zones of Choice, Q.J. Econ. (forthcoming 2024) (manuscript at 25–26), https://academic.oup.com/qje/advance-article-abstract/doi/10.1093/qje/qjad052/7304429?redirectedFrom=fulltext [https://perma.cc/5FPK-XRZE] (reporting similar findings with respect to public school choice).

  110. Moran, supra note 1, at 740–45, 751–52. The latter effect would arise if the formula was based on the population of eligible voters, which would exclude minors. See id. at 728.

  111. Evenwel v. Abbott, 578 U.S. 54, 68 (2016).

  112. For a brief statement of my thoughts, see Ilya Somin, Thoughts on Today’s “One Person, One Vote” Decision, Wash. Post: Volokh Conspiracy (Apr. 4, 2016, 2:21 PM), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/04/thoughts-on-todays-one-person-one-vote-decision/ [https://perma.cc/7SCS-FUEW].

  113. Ilya Somin, Why Every Person, Regardless of Citizenship, Counts in Apportioning House Seats, L.A. Times (Oct. 23, 2020, 4:00 AM), https://www.latimes.com/opinion/story/2020-10-23/census-house-apportionment-immigrants [https://perma.cc/A2GV-LEZG]. Professor Sanford Levinson and I filed an amicus brief on this point when the issue came before the Supreme Court in 2020. See Brief of Amici Curiae Ilya Somin & Sanford Levinson in Support of Appellees at 7, Trump v. New York, 141 S. Ct. 530 (2022) (No. 20–366), https://www.brennancenter.org/sites/default/files/2020-11/AmicusBrief_Somin and Levinson.pdf [https://perma.cc/KEM2-ZDUV].

  114. Moran, supra note 1, at 724.

  115. See generally Trump, 141 S. Ct.

  116. Moran, supra note 1, at 725.

  117. See discussion supra Part II.