On June 27, 2019, the Supreme Court of the United States (“SCOTUS”) released two major decisions dealing with partisan politics that will shape America’s democratic elections for years to come. In short, the proposed citizenship question on the 2020 national census is a ‘no’ and partisan gerrymandering is a ‘go’. For those interested in preserving the country’s democratic foundations, this day will seem marginally hopeful with quite the bitter aftertaste.
The census case, Department of Commerce v. New York, was decided by a 5–4 liberal majority with the opinion delivered by Chief Justice Roberts. It revolved around Secretary of Commerce Wilbur Ross’s March 2018 decision to add a question about citizenship on the upcoming 2020 US Census. The Secretary claims he was acting in response to a Department of Justice (“DOJ”) request for more accurate data about voting-age population to be used for enforcement of the Voting Rights Act (“VRA”). Critics, however, claim the question would result in an undercount of noncitizen households, particularly Latino families. An undercount (predicted at 5%) would mean fewer Congressional representatives and less federal funds are apportioned to urban centers with a higher proportion of noncitizens.
A coalition of states and NGOs filed suit in the Federal District Court in New York, which held that the Secretary’s action was “arbitrary and capricious [and] based on a pretextual rationale”.1 The plaintiffs failed to prove a violation of the Equal Protection Clause as the decision was not motivated by discriminatory animus. Upon appeal, SCOTUS held that in light of the broad authority over the census conferred to Congress by the Enumeration Clause and delegated to the Secretary of Commerce by the Census Act, Ross’s decision was not “arbitrary and capricious”. He examined the relevant data and census options before him and made a reasonable decision that adding a citizenship question was the best way to gather accurate and complete citizenship data. However, the administrative record shows the Secretary took steps to reinstate the question from the start of his tenure and carefully elicited the DOJ request, which proves the VRA enforcement rationale was contrived. Since the Secretary did not meet the reasoned explanation requirement in the Administrative Procedure Act, which “ensure[s] that agencies offer genuine justifications for important decisions…that can be scrutinized by courts and the interested public”, the case was remanded back to the agency.2
Despite the public controversy swirling the issue today, a citizenship question has been included in every census from 1820 to 1950 and asked of a subset of households between 1960 and 2000. Major democracies such as Canada, Australia, the UK, France, Germany, and Spain also collect census-based citizenship information, as per the UN’s recommendation. What differentiates the 2020 US Census is President Trump’s ongoing “zero tolerance” immigration policy, which has undocumented immigrants reasonably fearing for their family’s future in the nation. While democratic implications took a backseat in the Court’s legal analysis, their logic was accurate and their deferral to administrative decision-making appropriate. The White House and DOJ are currently examining their legal options to get the question back on the census in time for distribution.
The issue of “gerrymandering” (i.e. partisan redistricting) litigated in Rucho v. Common Cause, which involves representatives redrawing electoral districts in a way that favors their political party and cements their position in office, is a far more insidious one. Republican state legislators in North Carolina self-admittedly drew the 2016 district map to entrench a 10–3 Republican majority in Congress. A district court ruled this map violated the Art. I, s. 2 of the Constitution, the Elections Clause, the First Amendment, and the Equal Protections Clause. Similarly, Democratic state legislators in Maryland created a 7–1 representative advantage in 2012 by increasing the number of registered Democrats and decreasing the number of registered Republicans in one Congressional district by 24,000 and 66,000, respectively. At trial, this was found to diminish voters’ “ability to elect their candidate of choice” and associational rights, thereby violating the First Amendment.3
On appeal, SCOTUS refused to act on the issue of partisan gerrymandering as it was deemed a “nonjusticiable political question”.4 In a 5–4 conservative majority decision authored by Chief Justice Roberts, the Court reversed and held that as per Art. I, s. 4, cl. 1 of the Constitution, the regulation of electoral districts lies with state legislatures and Congress. While SCOTUS has previously ruled population inequality between voting districts and racially discriminatory districting to be unconstitutional, the Court reasons that there is “a lack of judicially discoverable and manageable standards” to use in adjudicating claims of political gerrymandering.5 Such standards must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral,” but “fairness” escapes the mark and is poorly equipped to rank different types of districting (proportional representation along party lines; using geographical boundaries; competitive).6
A vociferous dissent from the Court’s liberal Justices rebuked the concept of partisan gerrymandering and the majority’s complacency in the eyes of an injustice that “debased and dishonored our democracy” by encouraging “a politics of polarization and dysfunction.”7 Kagan is right to argue that the Court need not devise a districting system in place of Congress. A solution well within their means would be to undo the more egregious gerrymanders that clearly deny citizens the right to participate equally in the political process and to select their representatives. If America is to maintain a working democracy of the people, by the people, for the people, we need to ensure voters are choosing their politicians, not the other way around.
This blog post was written by a CCLA summer law student. Views expressed do not necessarily reflect the views of the CCLA.
1 Department of Commerce v New York, 588 US ___ at 8 (2019).
2 Ibid at 28.
3 Rucho v Common Cause, 588 US ___ at 6 (2019).
4 Ibid at 7.
5 Ibid at 11.
6 Ibid at 15–19.
7 Ibid at 1–2 (Kagan, J., dissenting).