Nina Perales is the vice president of litigation at the Mexican American Legal Defense and Educational Fund, an organization that opposed the Evenwel plaintiffs. She called their effort "an attempt to cut back on growing Latino political strength in [Texas] by packing Latinos into a smaller number of districts."

There is a lot to unpack in this case, in terms of constitutionality and legal principles. Although the issues are complex, the aforementioned Hasen nonetheless characterized the Court's decision to take it "a surprise move." He added that he had "considered the issue fairly settled by the Supreme Court that states have the power to decide whether to use total population or another measure for drawing district lines." At this point, nothing surprises me when it comes to conservative attempts to win elections by changing the rules of the voting process rather than actually trying to, you know, win votes.

On the matter of it sounding familiar, one thing that stuck in my mind as I was reading about this case was how much it reminded me of something from the time of America's founding, a morally suspect deal struck in order to keep slave-owning states in the union as the Constitution came together.



The specific circumstances of the Evenwel case certainly differ from those surrounding the Three-Fifths Compromise. However, the fundamental parallel remains. Even leaving aside the question of undocumented immigrants, if the conservative plaintiffs in Evenwel triumph, some Americans will count and others will not in determining the very same question at the heart of that debate from over two centuries ago, namely how to draw legislative districts of equal size.

Ultimately, the Three-Fifths Compromise allowed Southern white conservatives to gain greater representation in the House of Representatives than they deserved, at least so long as they denied citizenship, freedom, and equal rights to those Americans of African descent whom they enslaved in such large numbers. After slavery was outlawed, the South got an even greater unearned benefit in representation because—under Jim Crow—they denied black men the right to vote while counting 100 percent (as opposed to three-fifths) of Southern blacks in their states' population. This discrepancy only grew wider after women won the right to vote in 1920—except in the South, where, until 1965, whites continued to disenfranchise black women as well as men while happily counting their numbers for purposes of representation.

This case is by no means the equivalent of slavery, or of Jim Crow. But that is a very low bar to clear in 2015. The Evenwel case is, without question, part of a long-term, multi-pronged effort by conservative activists and Republican officials to alter election and voting rules in a way that enhances their electoral prospects. In other words, they want to fix the game. Having already achieved much, they certainly aren't going to allow something like counting a person as a person stand in their way.

Will the Supreme Court see this scheme for what it is and rule in favor of not counting some Americans more than others? Or, on the other hand, will the five conservatives on the Court see it for what it is and give the conservative plaintiffs exactly what they want, knowing full well the purpose behind their push? Given how the court ruled on the Voting Rights Act, we need to be prepared for the worst. If that indeed comes to pass, the next question will be: What are we who believe that voting rights and equality are sacrosanct going to do about it?