On June 27, the last day of the 2018–2019 session, the Supreme Court announced two rulings affecting matters of concern to us: one to do with partisan gerrymandering and the other to do with the proposed citizenship question on the upcoming census.
In Vieth v. Jubelirer (2004), the Supreme Court split 4-4 on the question of whether partisan gerrymandering was justiciable, i.e., whether there was a role for the courts at all to intervene in cases of partisan gerrymandering. The court did not rule on that case at the time, but the partial dissent by Justice Kennedy left open the possibility for a role for the courts if an appropriate standard could be developed to apply in such cases. (Such standards have evolved for racial gerrymandering since the Voting Rights Act of 1965.) Since then, much of the research and advocacy regarding redistricting has been essentially to convince Justice Kennedy that such a standard was possible. With Justice Kennedy’s retirement last year, the question of justiciability has been on shakier ground. The 4-4 split remained among the other eight justices, and it was not yet clear where Justice Kavanaugh would come down.
Now we know. In Rucho v. Common Cause et al., the North Carolina (and Maryland) redistricting case, a 5-4 majority of the court, led by Chief Justice Roberts, ruled that partisan gerrymandering was not justiciable by federal courts. The Chief Justice’s opinion ruled that, while partisan gerrymandering poses a significant threat to election fairness, it was not possible to develop an applicable standard for assessing the extent of partisan gerrymandering. This, despite the fact that a number of lower courts did find that several proposed standards and measures provided clear evidence that it had taken place.
The Chief Justice’s opinion suggested that there are other routes to pursue to mitigate the danger of runaway partisan gerrymandering. His opinion cites successful state court challenges—such as in Pennsylvania—and the creation of independent redistricting commissions via citizen initiatives. That is a reversal of Roberts’s earlier view, expressed in his dissent in the 2014 case, Arizona State Legislature v. Arizona Independent Redistricting Commission. In that case, Roberts decried Arizona’s initiative-established independent commission as an unconstitutional userpation of legislative authority to determine the “Times, Places and Manner of holding Elections,” as specified in the Constitution. Roberts also failed to note the recent attempts by the Michigan legislature to undermine the voter-approved independent commission in that state. Roberts also noted the possibility of Congressional action, without mentioning that this year’s HR1, the For the People Act, which requires states to implement independent commissions, has passed the House, but is unlikely to be considered in the Senate.
In South Carolina and 23 other states, there is no process for bringing citizen initiatives to a vote. So absent Congressional action, our next realistic recourse is legislative.
Chief Justice Roberts was also the author of the majority opinion that the administration’s attempt to add a citizenship question to the 2020 Census was unconstitutional because the rationale offered for the question (that it was needed to aid enforcing the Voting Rights Act of 1965) was “contrived.” The opinion did seem to leave open the possibility that the administration could return to the lower court to have the decision reconsidered with a different justification, and since then, we’ve been on a wild ride as the president and the Justice Department attorneys on the case tried to determine how to proceed.
At first, the Justice Department announced that the administration would not pursue the question. Then President Trump tweeted that the administration would indeed continue to pursue adding the question. The administration attorneys appeared before the lower court judge and admitted that they did not have official guidance. The judge demanded a decision in short order on how the administration would proceed. Attorneys responded that they would be pursuing the question, but it was certainly not clear how any new justification could be considered “not contrived,” especially in light of the recent discovery of documents in North Carolina proposing the question as a way of enhancing the voting power of “Republicans and non-Hispanic whites.” The administration announced that they would be replacing the entire team of attorneys. The judge denied the administration’s request. The Census forms were sent to the printer and printing commenced. Finally, on Thursday, President Trump and Attorney General Barr announced that they would not pursue the question for the 2020 Census, but that they would gather the information from other sources and they would revisit the question for the 2030 Census.
So the 2020 Census will not have the citizenship question. But it is not yet clear how much damage the debate may have done to the response rate. Our task going forward has to be to actively promote responding, especially in areas that might have been vulnerable to intimidation.