A Slap to Trump’s Census Policy

Terry H. Schwadron

June 28, 2019

The U.S. Supreme Court delivered sunshine and storms on the same day, slapping the Trump government down about adding a citizenship question to the decennial Census, and striking down challenges over partisan drawing of election districts by state Legislatures.

As a result, in my reading, America will be able to juggle the number congressional districts to reflect growing populations of undocumented individuals, but then turn the keys over to majority partisan political parties to draw districts to their own advantage. That helps politicians more than people — and more Republicans than Democrats across the country, but did underscore the need for the Trump White House to tell the truth.

To me, it seems that Fairness took a back seat at the court to the careful assembly of majorities to draw decisions as narrow as possible. The two gerrymandering cases were decided by 5–4 votes, with Chief Justice John G. Roberts leading the conservative majority. The census decision was 5–3, again led by Roberts and the liberals, with Justice Brett Kavanaugh sitting it out because he thought the decision answered the wrong question.

The Census case has been closely watched because it has been backed so strongly by Donald Trump and his administration as a tool in attacking illegal immigration. But in its zeal, Secretary of Commerce Wilbur Ross, whose department oversees the Census, lied publicly about the reasons for adding a question about citizenship. He had said the question had been requested by the Justice Department to help in enforcement of voting rights, but documents showed that to be a lie.

Indeed, after this case was argued in the Supreme Court, yet more documents arose that showed the basis for the original request was basically a voter suppression effort linked to population of states where undocumented populations are growing.

And Trump himself has said it would be ridiculous to hold a Census and not be able to ask the citizenship question, putting the question squarely in the realm of immigration politics.

Since the decision formally put a court delay on a final decision, by sending it for more review, the issue is not over. After the decision, Trump asked his administration to determine if a delay is possible, again labeling the reasoning ridiculous.

The opinion by Chief Justice John G. Roberts Jr. said the explanation offered by the Trump administration for adding the question — asking whether a person is a citizen — was inadequate and “contrived.”

The court sent the case back to lower courts for further review, but as a practical matter, it is too late to wait on printing Census documents.

“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” the chief justice wrote. “Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

In court talk, that sounds like a strong denunciation.

The Census matters, of course, because its 10-year findings govern the number and placement of congressional districts and the distribution of federal monies for health and benefits programs as well as other shared expenses.

There is widespread belief that the citizenship question would depress an accurate count of individuals by the Census out of fear by undocumented people. That undercount would be reflected in loss of congressional seats. One such case is New York state, which faces losing seats.

Gerrymandering. One way or another, following the Census, state legislatures adjust their state congressional district lines. And the new decision seems to give legislatures more authority to reflect electoral majorities. Some of the state districts across the country are so gerrymandered as to reflect weird geometries that break up neighborhoods or cut campuses in half and the like.

One explanation about gerrymandering used an example of an evenly populated street with a Republican household next to a Democrat next to a Republican, and so forth, evenly distributed. But the legislative drawn district might be a figure eight to count only the favorable households.

In the gerrymandering cases — these two were from North Carolina, which was redistricted in favor of Republican candidates, and Maryland, which was rigged for better Democratic outcome –Roberts wrote that the drafters of the Constitution understood that politics would play a role in drawing election districts when they gave the task to state legislatures, and that federal judges are not entitled to second-guess lawmakers’ judgments. “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” the chief justice wrote.

Justice Elena Kagan dissented for the court’s more liberal judges. “For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” she wrote.

Federal courts in five states have struck down maps as overly rigged through partisan gerrymanders. Voters in Michigan, Ohio, Colorado, Missouri and Utah either took redistricting away from politicians or limited their power.

What is unclear here is what happens if a claim is about unfair racial makeup of districts, for example.

It reminds us that we need to solve these problems at the ballot box, of course, and not depend on the courts.

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