As for representation, Article I requires representatives to be divided among the states “according to their respective numbers,” meaning population. There was no exception for non-citizens, or for children; slaves were also counted, though only as three-fifths of “free persons.”
The Fourteenth Amendment did away with the three-fifths rule, basing House seats on “the whole number of persons in each State”—population again. The amendment makes an exception—when eligible male citizens (women were not guaranteed the right to vote until 1919) are denied the vote on any basis, states were to lose House seats for all members of the denied group. This provision was never applied, but I read it to mean that if, say, adult male voters were denied the ballot because they were African American, the state would lose representation for its entire African American population—men, women, and children.
I find no hint anywhere in the text that the boundaries of political power could or should ignore children, or women (who were then ineligible to vote), or non-citizens. And the debate over the amendment shows a good deal of awareness of the needs of immigrants, as well as citizens, for “the equal protection of the laws.”
The Evenwel “rule,” in other words, has been patched together more or less out of thin air, supplemented by a highly partial reading of a few Warren Court cases. Its result would be a political system even less tethered to the concerns of ordinary people than the present one. That prospect undoubtedly appeals to some Americans at this moment of demographic panic—of a nostalgia for an alternate universe past when America was “greater,” whatever that means. But it makes little sense within the genuine political universe created by the Constitution we actually have. It makes no sense as law.
Victory for the plaintiffs seems unlikely, however. The Court is hearing this case not so much out of choice but because, as a direct appeal from a three-judge court, it can’t just refuse. Whether it heard arguments or not, its decision would set a precedent. And the plaintiffs are on shaky ground. They are in essence asking the Court to open itself up to a decade or more of hell adjudicating its new rule. Consider this soothing phrase from their brief: “This appeal need not resolve every implementation issue.” Indeed. A rule basing districts on “eligible voters” would be a nightmare to administer, with district courts around the country required to find information about eligible voters—information that’s not available anywhere.
As an amicus brief for a group of former directors of the Census explains, “there is no actual count of the number of voting age citizens.” The Census counts the number of people in the country. The only systematic information about citizen population is a sample, like a voter poll in other words, taken by the Census. And that sample is too small to produce a reliable estimate of citizens in a given district, the former officials warn: “Adequate data to support Appellants’ positions simply do not exist.”