Taking cues from the Fourteenth Amendment, every state uses total population rather than voter population for drawing state legislative districts. If the Court required states to use voter population, immigrants who have not yet established citizenship and all children would be ignored for redistricting. At argument, Justice Breyer raised his concern that children might not be adequately represented if they are not counted. Consovoy argued that children’s interests are captured by their parents’ votes and also noted that children are not considered in Section 2 of the Voting Rights Act of 1965—unsurprising since Congress enacted Section 2 for the very different purpose of ensuring that voters did not face discrimination on the basis of race or language.

Later in the argument, Justice Breyer sounded skeptical about the idea that children could be represented through their voting parents.