The 2020 Census Citizenship Question and Gerrymandering

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Lawyer 2 Lawyer – Law News and Legal Topics

The 2020 Census Citizenship Question and Gerrymandering

07/12/2019

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Nicholas Stephanopoulos: So we don’t draw squares on a map, just because we are politicians drawing lines and squares aren’t as good for the politicians as distorted districts that serve their various nefarious purposes.

Dale Ho: The lead opinion found that — that was contrived and a distraction from the administration’s true purposes. For now anyway, the courts are holding as a check against government malfeasance.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from Southern California. I write a legal blog called May it Please the Court and have a book out titled ‘The Sled’.

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The last month the Supreme Court of United States ruled in two highly watched cases Rucho v. Common Cause and Lamone v. Benisek. The High Court ruled Federal Courts do not have a role in deciding partisan gerrymandering claims. And in the Department of Commerce v. New York SCOTUSblog, the Trump Administration’s request to add a controversial citizenship question to the US Census.

So what kind of legal implications could these two rulings have on the legal and political landscape of the United States?

Well, today on Lawyer 2 Lawyer we’re going to discuss these two cases, take a look at gerrymandering the 2020 Census Citizenship Question, President Trump’s fight, how the census affects gerrymandering and what next steps are up.

We have a great show for you today to do that and our first guest is Nicholas Stephanopoulos, he is the Professor of Law at the University of Chicago School of Law. He has been involved in several litigation efforts as well, including the first successful partisan gerrymandering lawsuit in more than thirty years.

Welcome to the show Nick.

Nicholas Stephanopoulos: Thanks for having me.

J. Craig Williams: And our next guest is Dale Ho. Dale is the Director of the ACLU’s Voting Rights Project. He supervises the ACLU’s voting rights litigation and advocacy work nationwide. One of Dale’s cases includes the Department of Commerce v. New York case that we have talked about, and he argued before the Supreme Court and we will be discussing that today. Welcome to the show Dale.

Dale Ho: Thank you so much for having me on.

J. Craig Williams: Well Dale, let’s start with you, and can you give us a little bit of background about the Department of Commerce case so that we have the context?

Dale Ho: Sure the Department of Commerce case is about the Trump Administration’s effort to put a question about citizenship on the 2020 Census. It would be the first time since 1950 that the census questionnaire that goes to every household in America would have a citizenship question.

And the concern here is that the census which is a population count of every living person in the United States and is the basis for apportioning political representation, seats in the House of Representatives, votes in the Electoral College, and the allocation of 900 billion dollars in Federal funds annually. The concern is that, that critically important population count would be rendered inaccurate because a citizenship question all experts including the Census Bureau, believe would cause millions of people not to respond to the census.

We get an inaccurate count, the people who don’t respond would be clustered in particular states, states like California, Florida, Texas, New York, which would all be at risk of losing a seat in Congress. And so we challenged it and the Supreme Court recently ruled that the question couldn’t be on.

J. Craig Williams: Nick let’s talk a little bit about the other case and give a little background on that please?

Nicholas Stephanopoulos: Yeah sure. So there are really three issues in the partisan gerrymandering case. Number one is partisan gerrymandering, it kind of claimed that the Federal Courts can hear in the first place, i.e. is it a non- justiciable or a justiciable issue.

Second issue is, if the Federal Courts can hear partisan gerrymandering cases, what’s the right test for distinguishing valid from invalid district maps. And then third, once we have a test is the North Carolina Congressional Map that was at issue in Rucho and the Maryland District that was also at issue in a twin case, are those district to district maps constitutional or not.

(00:05:06)

So there is a whole set of issues that were presented in the partisan gerrymandering case.

J. Craig Williams: Dale how do we get to this point. I mean what is the — well, obviously the purpose is to win elections, but how is it that we just don’t draw squares on a map and how did gerrymandering come about?

Dale Ho: I should probably defer to Nick on that one.

Nicholas Stephanopoulos: Yeah I can, I can hop in there. A lot of folks argue we should just draw squares on a map, but for essentially all of American history we’ve had a norm that politicians get to draw district maps, that we districting is legislation just like any other. And so because politicians are self-interested, there’s always been the risk that they will draw district lines not for the public good, but instead for one problematic purpose or another, entrenching of incumbents is a possibility, the disadvantage of a racial or ethnic group is a possibility.

And so it’s a disadvantage of the opposing party and that’s the kind of scenario that presented itself in these cases, you know have the district lines been drawn in such a way as to significantly and durably disadvantage the opposing side. So we don’t draw squares on a map just because we are politicians drawing lines and squares aren’t as good for the politicians as distorted districts that serve their various nefarious purposes.

J. Craig Williams: So Dale, well how did the Supreme Court look at this when you argued the case, what were the responses that you got from the justices?

Dale Ho: Well, the Census case didn’t directly involves the issue of how the district lines are drawn, but it did involve the number of representatives that every state gets in Congress and then obviously the number of districts. And I think our concern has long been that this was an effort to sort of turbocharged gerrymandering efforts that if you don’t get an accurate population count and particularly you get an undercount of Latinx communities, immigrant communities, then you’re going to end up with districts that while on paper look like they have equal numbers of people are actually quite malapportioned.

And we were also concerned that this might be an effort to try to facilitate, redistricting that’s done not on the basis of total population numbers but on the basis of citizens only and remarkably after the oral argument in this case some documents came to light that had not been produced to us in Discovery but suggested that, that was precisely the purpose of putting this question on the census to aid Republican gerrymandering efforts. Sorry, go ahead.

J. Craig Williams: I was just going to say wouldn’t it make more sense to put the list of voters into that equation instead of the citizens, because they’re not contemporaneous?

Dale Ho: Well, sure I mean, if your goal is to have equal numbers of voters in every district and I think that has not actually been the goal with the one-person, one-vote doctrine pretty much throughout its existence, then you’re right. Putting the total number of citizens or equalizing the total number of citizens in every district wouldn’t do that. A lot of citizens themselves either can’t or don’t vote, they can’t vote because they’re under the age of 18 or they’re disqualified because of a criminal conviction or aren’t registered to vote or are registered but simply don’t vote.

So the notion that you’re going to sort of equalize the number of voters in every district by equalizing citizens doesn’t really make a whole lot of sense, but I think the fundamental point here is that, one person one vote is never actually meant what it seems to suggest, we’ve never tried to equalize districts based on numbers of voters but rather based on numbers of people.

Reflecting a recognition that representatives should all represent an equal number of constituents rather than compete for an equal number of votes.

J. Craig Williams: What is the basis for the Census Question come into this, I mean what — I understand that we want to get, we want to know who our citizens, but given that they don’t really match up, Nick what’s your thought?

Nicholas Stephanopoulos: I mean this might be better for Dale, but the whole debate has been over what the rationale of the administration was in wanting to add the Citizenship Question. They asserted that their goal was better enforcing the Federal Voting Rights Act, except there’s no actual need for fine-grained citizenship data in order to enforce the VRA.

(00:09:43)

And so because the professed motive is so improbable, that’s why everyone suspect the motives that the Dale was referring to namely trying to deter certain people, probably Latino people from filling out the census, and then also giving line drawers in the next redistricting cycle, the ability to turbocharge gerrymandering by switching to new forms of district drawing where the goal is not to equalize the number of persons across districts, but instead it’s equalize the number of eligible voters or citizens over 18 or something like that.

J. Craig Williams: You know Dale, the one-person one-vote thing sounds like a nice cliché and perhaps it is, but where’s the genesis of that? Is there a provision in the Constitution that guarantees every person a vote?

Dale Ho: Well, the one-person one-vote doctrine emerged in the 1960s. I think probably the most significant case is Reynolds v. Sims, which found that under the Fourteenth Amendment, states when they draw state legislative districts have to have equal numbers of people, roughly equal numbers of people in those districts.

And this was a time when there was dramatic variance in state legislative districts in terms of the number of people in them. California, I think at the time, gave a State Senate seat to every County and you had Los Angeles County with over a million people and you had some counties in California with under 20,000 people.

And the Supreme Court found that’s not consistent with the equal protection guarantees of the Fourteenth Amendment and the notion that everyone’s entitled to some kind of equality of representation.

You go back to the founding and there’s a recognition that representation in the House should at some level, maybe not perfectly proportionally, but at some level should reflect the number of inhabitants of each state and that included just to get to an earlier point we were talking about, that included non voters, right.

Women at the founding couldn’t vote in any state other than New Jersey and of course were counted. People who couldn’t meet property requirements in states couldn’t vote and they were counted as well and so were children. So there’s this notion that representation should derive from the people, not the voters, but the people.

Government of the people, by the people, and for the people requires some understanding of how many people there are and some equalization of each person’s individual dignity in the representative process.

J. Craig Williams: That almost argues in favor of everybody being able to vote regardless of their age or their qualifications.

Dale Ho: Well, there’s this notion of — it’s funny. Sometimes we talk about this idea of virtual representation, people who are represented in a system of government but don’t actually have voting power and part of what the American Revolution was about was rejecting the notion that Americans were virtually represented in the British Government.

But it’s — we’ve never been able to escape that idea entirely, there’s always been some notion that voting should be limited to a particular group of people and that group has broadened considerably since the founding, but it hasn’t — it’s never been extended to include everyone say including minors, right, children, but there’s this notion that even if people can’t vote, they ought to still have their interests represented in a Republican form of government. And we’ve never rejected that idea.

J. Craig Williams: Well Nick, not to go off-topic, but Citizens United and the ability of corporations to be able to donate the political action campaigns is that something that that will become an issue in the future, is that we play into that in this part of this conversation?

Nicholas Stephanopoulos: I mean that’s yet another threat. So vibrant democracy that represents everybody effectively, right, like our democracy is under threat from a number of different forces, a bad census count is one of those forces, partisan gerrymandering is another force, voter disenfranchisement is another threat. And so is unlimited corporate spending and spending by the richest individuals in our country too.

The fear with unlimited corporate and affluent individual spending is that then politicians, candidates will do what the spenders want. They won’t do what the people want and will end up having policies and laws and governance that don’t reflect the will of the electorate, but rather reflect the will of the huge donors and spenders.

And so, a lot of the fears that we have about gerrymandering also apply to campaign finance. In the same way that gerrymandering enables districts to not reflect what the people want, unlimited spending in elections can have some similar consequences.

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But sadly courtesy of Citizens United, we have to live with the unlimited corporate spending at least until the composition of the Supreme Court changes, and now because of Rucho, we also have to live with partisan gerrymandering.

So the court over the last decade has green-lighted both of these abuses that are undermining a vibrant representative democracy in the country.

J. Craig Williams: Well gentlemen, before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsor. We’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Nicholas Stephanopoulos, Professor of Law at the University of Chicago’s Law School and Dale Ho, the Director of the ACLU’s Voting Rights Progress. We’ve been discussing gerrymandering in the 2020 Citizenship Question recently ruled on by the Supreme Court.

So Dale, how is the — one of the things that we’ve talked about on Lawyer 2 Lawyer is the stacking of the Supreme Court with conservative justices as has President Trump’s recent appointments had an effect on the outcome of these cases?

Dale Ho: Well, in the Census case both of President Trump’s appointees sided with the Administration. The decision still was 5-4 in favor of the plaintiffs. So neither of them were able to cast a decisive vote. Chief Justice Roberts sided with the liberal members of the court and what I think is pretty remarkable 00:17:10 is that this case was under the Federal Administrative Procedure Act.

And generally there’s a presumption of regularity of the government’s actions that we take the government basically at its word, even when the government doesn’t necessarily substantiate what it’s doing with evidence or like affidavits or declarations or something like that.

Here Chief Justice Roberts found that there were enough irregularities here to not simply doubt, but disbelieve the government’s stated reason for wanting to put a citizenship question on the census, which as Nick said earlier, was to enforce the Voting Rights Act.

The lead opinion found that that was contrived and a distraction from the Administration’s true purposes. So for now anyway the courts are holding as a check against government malfeasance.

J. Craig Williams: One of the shows that we did earlier was on the Kelo v. New London, City of New London, the eminent domain case where the town condemned a woman’s home to give it over to a real estate developer, and we learned from that interview that I believe it was the Southern Law Center that did a significant public relations campaign about the power of eminent domain as part of the appeal and it was a groundwork laid across the country through articles that were published, opinions that were written for various large city newspapers.

And just a general grassroots campaign that’s kind of surprised me, but the lawyers that were in that case thought that it benefited their case and kind of turned the tide about the power of eminent domain and the government. Has anything occurred like that that you’ve seen in either the citizenship question or the gerrymandering question?

I mean I’ve seen a lot of articles on gerrymandering as a consequence of this, but they seem to have come out afterward, not before.

Nicholas Stephanopoulos: I mean I can chime in there. Yeah, there’s been a lot of attention on gerrymandering over the last two to three years, because even before the Supreme Court’s decision in Rucho, a couple weeks ago, there had been a whole series of successful lower court decisions.

So lower courts had struck down maps on partisan gerrymandering grounds in Michigan and Ohio and North Carolina and Maryland and Wisconsin, and every one of those cases generated its own little burst of publicity. And so, there had been a pretty effective public relations campaign geared off of the litigation victories.

(00:19:53)

But the trouble is that no matter how good your PR campaign is, ultimately you’ve got to have a receptive audience on the Supreme Court and on the issue of partisan

gerrymandering, Justice Kennedy who stepped down a year ago, may well have been a receptive audience. Justice Kavanaugh is not, Chief Justice Roberts is not a receptive audience.

And so it didn’t matter that the media attention was 20-1 against partisan gerrymandering, it ultimately didn’t matter that if you look at the amicus briefs filed with the court, again, they are maybe five times more filed on the anti-gerrymandering side rather than on the pro side, but again if you don’t have justices who are swing voters, who are looking to the pulse of the community, none of that ultimately matters. And it didn’t ultimately matter in Rucho.

J. Craig Williams: Well Nick, it seems like not be kind of be kind of bane about it but in the sense that the gerrymandering just doesn’t smell right, it just doesn’t sound as if the people that are in power can redraw the lines to keep themselves in power by simply shifting boundaries, and by adjusting the boundaries of their districts according to the number of voters that are on their same party. That law school kind of thing where it doesn’t pass the smell test, the basic review of it.

How is it that the Supreme Court can get past this kind of ugly almost cronyism or nepotism, I’m not really sure the right adjective to describe it, but it just doesn’t sound right. How does these justices that cited on behalf of the partisan gerrymandering, what do they use to justify their opinions?

Nicholas Stephanopoulos: Yeah, you’re right that the partisan gerrymandering isn’t ought to be unjustifiable and a court that cares about the state of American democracy should not be able to find a way to green light gerrymandering indefinitely and in as extreme a form as map makers can possibly come up with.

So how did Robert do it? His main move was to say that some pursuit of partisan advantage is permissible in redistricting and so, because some partisanship is okay, Robert says, there’s no way to distinguish too much partisanship which is not okay from some partisanship which is okay.

That’s his main argument that even though partisan gerrymandering is undemocratic and can be unconstitutional, there’s simply no way for the federal courts to draw a clear consistent line between permissible relatively low levels of partisanship and impermissible higher levels of partisanship. That’s the whole move, that’s, that’s how the court rationalizes to itself why it’s going to step back and do nothing in the face of this blatantly undemocratic practice.

J. Craig Williams: And we know that Congress has the right to overrule the Supreme Court and pass a contrary law. Dale how does the FAIR Map Act to play into this? And we’ll get to Trump’s end run in just a minute. I can’t wait to talk about that.

Dale Ho: Right. I mean this wouldn’t really be a situation where this — where Congress would be say overruling a Supreme Court decision, but maybe creating a legal barrier where the Supreme Court found there isn’t one currently existing.

So the court found the Constitution doesn’t prohibit partisan gerrymandering, but there’s nothing to stop Congress from passing a law that does precisely that and that’s one of the things that Chief Justice Roberts noted in his opinion that this is an issue that, in his view anyway, can be resolved best through the political process, through something like legislation.

Now query whether or not that’s a realistic hypothesis given that Congress is elected from districts which themselves may be gerrymandered and I’m sure Nick has some thoughts there as well, but this is at least I think one situation where notwithstanding the Supreme Court’s decision, there is at least in theory a congressional remedy.

J. Craig Williams: Well, let’s talk about what Trump is trying to do with the citizenship question, he says, heck with the Supreme Court, I’m just going to issue an executive order and do an end run, can he do that?

Dale Ho: Well here I think he can’t, and the differences are multitude. The Supreme Court didn’t find that it needed more guidance here from one of the political branches before it could act which is I think one way of reading the suggestion and Chief Justice Roberts’ opinion on the partisan gerrymandering cases that Congress could pass a law banning partisan gerrymandering.

Here, the Supreme Court’s decision said basically two things. One we took this case when we did and heard it when we did and decided it when we did because the government told us it needed to be decided by June 30^th.

(00:25:00)

And two, we decide against the government, because we find that the government was not truthful about the reasons why it wanted this question on the census and that’s one of the requirements of the Federal Administrative Procedures Act that you have to be honest and candid about the reasons for a federal agency making the decision that it’s making.

That I think really puts the administration in a box in numerous ways. First the case was heard before June 30^th because the government insisted that no changes to the Census Questionnaire could be made after that date. It’s now too late under the government’s own asserted timeline to make any further changes to the Census Questionnaire.

Second, the court said that the government had lied about why it was wanting the question on the census, the government can’t now spend days or weeks coming up with a new reason to put the question on, that’s just another form of after the fact post hoc finding a reason for a decision that was already made, which is the definition of pretext and unlawful under the Supreme Court’s opinion.

So I think the opinion has been misread a little bit. There was some media commentary suggesting that Chief Justice Roberts had invited commerce to come back with a new decision and new reasoning, and I think that’s just not an accurate reading of the opinion.

J. Craig Williams: Well gentlemen, this has been a fantastic discussion and tremendously interesting. We’ve come to the end of the show, it’s time to wrap up and get your final thoughts along with your contact information.

So Nick, let’s go with you first.

Nicholas Stephanopoulos: Great, thanks. So in terms of final thoughts I would just say that Rucho and the partisan gerrymandering decision is really a dark day for American democracy. It means that in the next redistricting cycle, there is literally no gerrymander so extreme that a federal court will strike it down. And so we’re likely to see more aggressive gerrymandering techniques than that we’ve ever witnessed before.

The use of computer algorithms, redistricting, tweaking district wise every couple years to make sure the districts don’t flip against the desires of the line drawers, maybe even non contiguous districts joining a cluster of voters over here with a cluster of voters over there without any attempt to geographically connect the two clusters.

All of those techniques and more are now permissible and are not going to be policed by the federal courts.

So I think that if democracy means the will of the people ultimately prevails, the Supreme Court has now given the green light for democracy to not prevail, to be distorted in the next decade, and that’s a real tragedy for people who care about the state of democracy in this country.

J. Craig Williams: Great, and your contact information.

Nicholas Stephanopoulos: Sure. So my email address is [email protected]. I can also be reached by phone. My office number is 773-702-4226.

J. Craig Williams: Great, thank you very much. And Dale, your final thoughts and contact information.

Dale Ho: Sure, I share Nick’s profound sadness about the partisan gerrymandering decisions. I think it’s very unfortunate and a real problem in a way that wouldn’t necessarily have been true to the same extent 20 or 30 years ago before the development of the very sophisticated tools that exist today to gerrymander with a great degree of precision and it’s a really, really unfortunate decision.

The Census Decision is I think however cause for some optimism about the judiciary continuing to serve as a check on malfeasance by the executive branch, the Trump administration tried to get away with doing something that would have been very, very damaging to our democracy and to Fair Representation.

They did it with I think a pretty straight face lie, I don’t think there was anyone in the courtroom the day that I argued the case that believed that the Trump administration was interested in enforcing the Voting Rights Act which is what their stated reason was for putting the question on the census and Chief Justice Roberts called him out, said that the court is not required to exhibit naiveté that ordinary people don’t have and that’s a good thing going forward as a host of Administration actions.

(00:29:54)

Everything from ending DACA to child separation policy to conditions at the border are all being justified by the government by reasons that simply don’t pass the laugh test and hopefully the courts will continue to be a check on all of those human rights and civil rights violations.

If folks want to reach me, you can reach me via email at [email protected] or follow me on Twitter @dale_e_ho.

J. Craig Williams: Great. And that’s Ho, right?

Dale Ho: That’s right.

J. Craig Williams: Great. Thank you very much. It’s interesting to see the Supreme Court finally acknowledged what almost all lawyers admit after they graduate from law school that we are no longer reasonable people.

Well, it looks like we’ve reached the end of our program. If you’d like what you heard today, please rate us in Apple podcasts, Google podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can leave a comment on today’s show and sign up for our newsletter.

I’m Craig Williams. Thanks for listening. Join us next time for another great legal topic, when you want legal think Lawyer 2 Lawyer.

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