Fox senior judicial analyst Andrew Napolitano falsely claimed that the Supreme Court's unanimous April 4 decision upholding the ability of states to count all residents, eligible to vote or not, in drawing election districts was unprecedented and could allow undocumented immigrants to vote. Napolitano characterized the decision as a “radical departure” from previous legal doctrine and said it “may very well lead us into the direction of people who are not citizens voting.” In reality, the decision noted that nonvoters have a right to constituent-services and “have an important stake in many policy debates,” but did not grant non-eligible voters the right to vote. CNN explained that “all states currently draw lines based on general population,” and as law professor Rick Hasen noted, the decision relies on “constitutional history, the Court's own decisions, and longstanding practice.” From the April 5 edition of Fox News' Fox & Friends:
STEVE DOOCY (HOST): And yesterday the U.S. Supreme Court upheld Texas' one person, one vote law, meaning districts are drawn based on the total population, not the number of voters in that district. That means if a district has a lot of illegals or a lot of kids, they are counted when drawing basic congressional districts. So what does that mean for your vote?
ANDREW NAPOLITANO: It's a bit of a head scratcher because it came from Texas. It was enacted by a Republican legislature and signed by a Republican governor. And it will succeed in diluting votes of people who live in districts where there are a lot of legal aliens and illegal aliens because those people will be counted. What do I mean? We're talking about the legislature apportioning the districts, the borders of legislative districts both for state house offices and for Congress. And most states count just the voters, not the people who will vote, but the people who are registered. Texas decided to count everybody, even people who can't vote, children, convicted felons who are now no longer in jail, legal aliens, illegal aliens, as well as voters.
DOOCY: And they did that because they wanted more districts.
NAPOLITANO: Correct. But the unintended consequence of this is that people who live in districts with a lot of illegal aliens, fewer voters, they'll have more say in choosing their representatives. People who live in districts with fewer illegal aliens, where more people are voters, will have less say because there's more voters there.
DOOCY: So let me get this straight. Under this new guidance from the Supreme Court, if you are in this country illegally, let's say you're from -- let's say Mexico. So you not only have representation in your home country of Mexico, but now you've got representation in Washington, D.C., as well?
NAPOLITANO: Yes, yes. Yes, you do. And in the state house. Now, look, the Supreme Court didn't say Texas must do this. It said Texas may do this. And therefore, any one of the other 49 states may do this. It's a bit of a radical departure, both by Texas and by the Supreme Court, and it's a stunner because it was unanimous.
DOOCY: Well I was going to say that. You said it was a headscratcher and yet everybody on the Supreme Court said, “yep, you got to do it this way.”
NAPOLITANO: Even the conservative justices without Justice Scalia ... Justice Alito wrote a concurring opinion, Justice Thomas wrote a concurring opinion. But the final vote is 8 to nothing on this decision by Justice Ruth Bader Ginsburg, which is about the most expansive I have seen and may very well lead us into the direction of people who are not citizens voting. Not sure that that's going to happen, but it's a step in that direction.
DOOCY: You mentioned Ruth Bader Ginsburg. Here's part of the opinion. She said “representatives serve all residents, not just those eligible or registered to vote. Nonvoters have an important stake in many policy debates and in receiving constituent services, such as help navigating public-benefit bureaucracy.”
NAPOLITANO: She's right that nonvoters, it's part of the problem, that nonvoters, people ineligible to vote, do receive government benefits, but of course have no say in choosing the people that decide on those benefits.
DOOCY: But I mean if Washington, D.C. is going to let a lot of illegals in, they're going to -- the general, the various districts across the country are going to need help from Washington to pay for them.
NAPOLITANO: Do you see the trend, do you see the way this is going? Which again, why I'm -- right. Which is why I'm stunned that this is eight zip.