The Supreme Court handed down two opinions on Thursday which could shape American democracy for decades.
The first, Rucho v. Common Cause, held that suits challenging partisan gerrymanders are entirely beyond the power of the federal courts to adjudicate. Henceforth, state lawmakers may draw the most aggressively partisan gerrymanders they (and their computers) can come up with. They may draw, as Wisconsin did, a gerrymander so impervious to democracy that Republicans win nearly two-thirds of the state assembly seats even in an election where they won 54% of the popular vote.
And the entire federal bench must sit on its hands and allow this to happen.
The second decision, Department of Commerce v. New York, involves a racist conspiracy by the Trump administration to rig the 2020 census in a way that would discourage many immigrants from participating. The apparent goal of this conspiracy, as one Republican map-drawer revealed in files discovered after his death, is to allocate congressional seats in a way that “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.”
New York effectively tells the Trump administration it must come up with a better explanation for why it sought to rig the census.
Rucho, in other words, is a catastrophic loss for democracy. It entrenches the ability of state lawmakers to lock their party into power through creative map-making. And New York is the tiniest of victories for the rule of law. It erects a new road block in front of the Trump administration’s effort to promote white rule, but it isn’t even clear that this road block will prove insurmountable.
Chief Justice John Roberts wrote both opinions. His opinion in Rucho was joined by his Republican colleagues and none of the Supreme Court’s Democrats. The vote breakdown in New York, meanwhile, is a bit of a mess. But on the crucial question of whether the census can be rigged right now, Roberts was joined by the four Democratic justices.
Rucho rests on something known as the “political question doctrine,” which essentially says that there are some acts that may violate the Constitution but are beyond the power of the judiciary to determine whether such a violation occurred. One example of a political question is when there are no “judicially discoverable and manageable standards for resolving” a particular question. In Rucho, Roberts writes that political gerrymanders fall into this category.
The core of Roberts’ reasoning is that it is illegitimate for courts to require states to draw legislative maps where the electoral results are roughly proportional to the will of the voters. “Our cases,” Roberts writes in a passage quoting retired Justice Sandra Day O’Connor, “clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.”
“Partisan gerrymandering claims,” Roberts writes, “invariably sound in a desire for proportional representation.”
This statement is inaccurate. The phrase “proportional representation” suggests that legislative representation should closely track electoral results. So if Democrats win 54% of the vote, they should receive close to 54% of the seats in the legislature. But that’s not at all what many anti-gerrymandering advocates demand.
Rather, many of these advocates developed sophisticated mathematical models that sniff out asymmetric legislative maps. A map is symmetric if it produces roughly the same results regardless of which party performs well in a given election. Thus, a symmetric map may give Democrats 65% of the seats in an election where they win only 54% of the vote, but that’s okay if Republicans would also receive 65% of the seats in an election where they performed just as well.
Fairness in elections, in other words, does not necessarily flow from perfect proportionality. It can flow from maps that simply aren’t rigged to favor one party or the other.
Having botched the math, Roberts also engages in an extraordinarily formalized reading of the Constitution’s text. “There is no ‘Fair Districts Amendment’ to the Federal Constitution,” he writes at one point. So federal courts should not be in the business of deciding which maps are fair.
Roberts is correct that there is no language in the Constitution that speaks with this degree of specificity. But the Constitution does prohibit states from denying anyone “equal protection of the laws,” a passage the Supreme Court’s understood to prevent many unfair redistricting practices for many years.
Likewise, the First Amendment prohibits viewpoint discrimination, and that’s exactly what gerrymandering does. Gerrymandering is a way to ensure that voters who agree with one party receive more favorable treatment than voters who agree with the other party. And it’s worth noting that Roberts is quite willing to read the First Amendment in expansive and ahistorical ways when corporations ask for the right to spend unlimited sums of money to influence elections.
Not long after handing down this crushing blow to opponents of gerrymandering, Roberts handed down a far more parsimonious victory to voting rights advocates fighting Trump’s efforts to rig the census.
The issue in New York is whether the Department of Commerce could add a question to the 2020 census asking whether each respondent is a citizen. Census experts across both political parties warned against including this question because, as top census officials from the Reagan and Bush I administrations warn, asking such a question “could seriously jeopardize the accuracy of the census,” because “people who are undocumented immigrants may either avoid the census altogether or deliberately misreport themselves as legal residents.” Meanwhile, legal residents “may misunderstand or mistrust the census and fail or refuse to respond.”
The Census Bureau itself “calculated in January 2018 that adding a citizenship question to the 2020 census was likely to lead to a 5.1% differential decrease in self-response rates among noncitizen households.”
This matters because the Fourteenth Amendment provides that, “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” Thus, with rare exceptions, every person within a state counts towards that state’s representation in the U.S. House — regardless of that person’s immigration status.
A citizenship question, in other words, would reduce representation in states with many immigrant residents — a population that is disproportionately likely to be Hispanic — and increase representation for non-Hispanic whites. And, of course, non-Hispanic whites are especially likely to vote for Republicans.
Roberts’ New York opinion rejects many legal arguments against Commerce Secretary Wilbur Ross’ decision to overrule his own experts and place the citizenship question on the 2020 census form. The Chief denies, for example, that the question should be removed because Ross failed to comply with a federal law requiring Congress to be given three-years advance notice of “the subjects proposed to be included, and the types of information to be compiled,” in the census.
Nevertheless, in the crucial section of the New York opinion, Roberts holds that there is enough evidence that Ross’ stated reason for adding the citizenship question is a pretext.
As a general rule, when an agency engages in policy-making it must explain the reasoning behind its policies. Here, the Commerce Department claimed it was adding the citizenship question because doing so would help the Justice Department enforce the Voting Rights Act.
Yet, despite this claim, the evidence “showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.” This evidence suggests that “the Secretary had made up his mind to reinstate a citizenship question ‘well before’ receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.”
Ross’ mistake, in other words, is that he almost certainly lied about why he wanted the citizenship question. And that’s enough to invalidate this particular effort to add such a question to the census.
Yet, while that is a victory for voting rights, it is an extraordinarily narrow one. Roberts emphasizes that “we do not hold that the agency decision here was substantively invalid.” Rather New York‘s holding is that “agencies must pursue their goals reasonably,” and “reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action.” Instead, “what was provided here was more of a distraction.”
The result is that the Commerce Department will get another chance to explain its reasoning — though whether it is willing to admit the real reason why it wants a citizenship question is an open matter, as is the question of whether they can do so quickly enough to meet the deadline to print the 2020 forms.
In any event, Rucho and New York both fit within a pattern common to the Roberts Court. When the court’s Republicans wish to move fast and hard on a particular issue, they hand down sweeping opinions that fundamentally remake American law. When they hand victories to liberals, by contrast, their decisions tend to be very narrow and offer little relief to future litigants.
So raise a glass to the 2020 census, which may not be poisoned by a transparently racist effort to rig elections. But today is not a good day for democracy.