The media is focused on the obvious: Trump backs away from census citizenship question, direct agencies to hand over citizenship information to Commerce:
President Donald Trump issued an executive order Thursday directing the Commerce Department to obtain citizenship data through means other than the US census, dropping a controversial plan to include a citizenship question on the 2020 census after the Supreme Court blocked it.
Trump repeatedly said in Rose Garden remarks that he’s not backing away from attempting a count of US citizens, but acknowledged legal setbacks in inserting a citizenship question on the nationwide population survey.
“We are not backing down on our effort to determine the citizenship status of the US population,” Trump said in laying out a plan to issue an executive order asking US departments and agencies to find ways to determine a head-count of citizens.
Trump said agencies would be required to provide the Commerce Department with documents and records of citizens and non-citizens, which he said would help provide an accurate picture of US citizenship.
Newsflash: the Census Bureau already does this. This is nothing new.
The Census Bureau, which falls under the Commerce Department, has long favored using administrative records — including data from the Social Security Administration, IRS, US Citizenship and Immigration Services and the State Department — to gather citizenship data, rather than asking individuals to self-report their status on the census itself.
But the Associated Press caught the one part of this dog and pony show that caught my attention:
President Donald Trump is giving an important endorsement to a change in the way electoral districts are drawn that would increase Republican political power.
Trump says citizenship data would help states that “may want to draw state and local legislative districts based upon the voter-eligible population.”
That would mark a change from how districts are drawn currently, based on the entire population.
Excluding children and non-citizens could shift political power from urban areas, where immigrants tend to cluster and Democrats are typically favored, to whiter, more rural Republican strongholds.
The issue is an open one at the Supreme Court and is likely to wind up there if states pursue it in the next round of redistricting after the census.
Donald Trump and Bill Barr are channeling Ed Blum, the director of the Project on Fair Representation, who argues that districts should be drawn based on voter eligible population, not total population.
The U.S. Supreme Court rejected this argument in the 2016 case of Evenwel v. Abbott, holding the “one person, one vote” principle of the Equal Protection Clause of the 14th Amendment allows a state to design its legislative districts based on total population, but left open the possibility for voter eligible population redistricting. SCOTUS Rules Districts Be Drawn by Total Population, Not Voter Numbers:
The U.S. Supreme Court clarified in its April 4 Evenwel v. Abbott ruling that legislative districts should be drawn inclusive of all the people living within them, as has been the standard for at least the past five decades. Texas resident Sue Evenwel challenged that standard last year with the help of Voting Rights Act-foe Ed Blum, the director of the Project on Fair Representation, charging that districts should be drawn based on eligible voters, not total population. This would effectively exclude the interests of children, immigrants, the incarcerated, and many Latinos and African Americans who’ve been disenfranchised. It would also shift considerable political advantage to older, rural, white voters, who tend to vote Republican.
SCOTUS rejected Evenwel’s challenge, however, by a unanimous vote. Wrote Justice Ruth Bader Ginsburg:
Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.
The Harvard political science professor Carl E. Klarner found in his study last December that, “utilizing [voting age population] for districting would result in a 12% reduction in Latino state legislators and a 13% reduction in Latino U.S. Representatives,” and that “Latino voting power in the mass public would decline by 4.6% in the U.S. House, 5.2% in state senates and 6.2% in state houses.” Another study that month found that Latinos in Texas, Florida, and across the Southwest would lose the most political representation in a voter-based redistricting scheme.
In addition, some 75 million children—including 13 million African-American children—would have been discounted in Evenwel’s redistricting proposal, according to the NAACP Legal Defense and Educational Fund (LDF). As the civil rights organization said in a public statement about Monday’s ruling:
Indeed, appellants’ case threatened to take America’s redistricting process back to nefarious periods in our democracy similar to when Black people were counted as 3/5ths of a person for redistricting purposes and expressly excluded from the body politic.
The “Three-Fifths Compromise” LDF references was a deal passed during the Constitutional Convention of 1787 to determine how to craft congressional districts for the U.S. House of Representatives. The Evenwel v. Abbott case was strictly about state and local district lines, not congressional ones, but the case shares the argument of the 1787 convention about who counts when creating districts.
* * *
The majority opinion in Evenwel v. Abbott , written by Ginsberg, grapples with this history, noting:
Concerned that Southern States would not willingly enfranchise freed slaves, and aware that “a slave’s freedom could swell his state’s population for purposes of representation in the House by one person, rather than only three-fifths,” the Framers of the Fourteenth Amendment considered at length the possibility of allocating House seats to States on the basis of voter population.
Almost a century later, Thaddeus Stevens, leader of the abolitionist Radical Republicans in Congress, introduced a constitutional amendment in December of 1865 that would have drawn districts “according to their respective legal voters.” Stevens’ proposition lost, however, which meant that a total-population formula would abide.
These agreements did not settle the question of whether certain jurisdictions could also draw districts based on formulas other than total population, though. SCOTUS Justices Samuel Alito and Clarence Thomas pointed out in their own separate written opinions Monday that states can still use a different standard, like a voter-based one, if they want to. Alito argued that the 1787 “Three-Fifths Compromise” was not about establishing a norm on representational equality, but was really a play to reduce the power of Southern states. Meaning that, while Alito acknowledges that the Constitution’s framers settled on a total-population formula, that may have only been within the context of what to do about the nation’s enslaved population.
Monday’s majority opinion and ruling does not defy Alito’s and Thomas’ assertions that voter-based formulas are not out of the question for states today. It simply doesn’t address the issue. The written opinion concludes by stating that SCOTUS “need not and do not resolve whether … States may draw districts to equalize voter-eligible population rather than total population.”
Trump is signaling that this is where the GOP intends to go with redistricting in 2020 after the U.S. Supreme Court recently green-lighted partisan gerrymandering by holding that it is a political question beyond the capabilities of the court to review in Rucho v. Common Cause. As Benjamin Battles writes at SCOTUSblog, “Federal courts are now powerless to stop state officials from drawing electoral maps designed to keep themselves and their parties in power, at least so long as the districts created meet basic apportionment standards and can be justified on non-racist grounds.” Gerrymandering symposium: Court to foxes — Please guard henhouse.
Rucho makes it possible for Republicans to argue that their “Red Map” extreme gerrymandering is just partisan, not racist, even though Democrats are the racially diverse political party, and Republicans have become the white identity party. “We don’t see color, we see Democrats.” There are currently five votes on the U.S. Supreme Court willing to accept this charade.
And two of the foxes guarding the henhouse, Justices Thomas and Alito, have already signaled that they will uphold a state using voter eligible population rather than total population, even if it reduces minority representation.
So the option is out there, if any state, county, or city ever decides to draw districts this way. That kind of redistricting has been extremely rare over the nation’s history, though, practiced mainly in certain parts of Hawaii.
The battle over redistricting in 2020 has just been revealed by Donald Trump and William Barr. This is where Republicans are going next. In order to preserve their white supremacy, they will stop counting large portions of the population who will be “disappeared” from representation. This is not America.
The 2020 election just became a “must win it all” election to stop this Republican authoritarianism and tyranny.