[EL] Politico article and Census counting citizens

Thu Jun 4 11:18:46 PDT 2015

Nate,

Both in your response to Doug Johnson and in your Politico piece, you
emphasize that states should have discretion in deciding the basis for
districting.  But I assume we all agree that the Court should impose *some*
limitations (otherwise, it would be remarkably easy to circumvent 1P/1V).
The only question is what those limitations should be.  I read the excerpt
below from your piece as supporting an argument that states should not be
allowed to use CVAP, determined based on ACS data, as a basis for
districting.  Would you agree with such an argument?  Is that what you
meant by saying that states should be free "to draw their districts using
the most accurate data available" in your last graf?  I will say that such
an argument makes a lot of sense to me -- even if a state has some
discretion to decide what statistics to use, ACS citizenship numbers maybe
lie outside the permissible scope of that discretion.  But do you endorse
that argument?  (Apologies if the answer is in your Cardozo piece.)

Best,

Sam

==========

As appealing as the logic may be, that transformation in constitutional law
would be based on data that simply doesn’t exist. Of course, the census
does make available certain *estimates* of the total number of citizens and
noncitizens for states and localities — just as it also estimates the size
of the labor force or the total number of bathrooms per household. *But the
high court is mistaken if it believes these numbers can be used for
redistricting.*

*These census citizenship estimates come from one survey — the American
Community Survey — that is based on reporting from just 2 percent of
American households. The census releases these estimates for each year,
plus averages for the preceding three- and five-year periods. Sometimes the
surveys dating from these different years contradict one another, revealing
quite different citizenship rates — either because of population migration,
or because the survey design isn’t fine-tuned enough to accurately count
citizens at the local level. And even when the ACS data remain consistent,
they are accompanied sometimes by a large margin of error, just like any
public opinion poll based on a small sample set.*

Read more:
http://www.politico.com/magazine/story/2015/06/the-supreme-courts-big-data-problem-118568.html#ixzz3c7OQa8Nt

On Thu, Jun 4, 2015 at 1:49 PM, Nate Persily <nate at persily.com> wrote:

> I am answering on my phone so must keep it short.  The argument in the
> politico piece is laid out in greater detail in my Cardozo law review
> article, The Law of the Census.
>
> Of course, the short form includes race questions.  I was referring (as
> you know) to the types of general population data that could be used to
> comply with one person one vote.  The short form also includes gender and
> owner/renter status but, as i think you realize, providing a complete guide
> to the questionnaire was not my main point. The Constitution did
> contemplate counting race, by the way, which is why the 3/5ths clause and
> the reference to Indians not taxed led even the earliest censuses to have
> race questions.  Now, of course, we need such data to comply with the VRA.
>
> And yes, congress could add a citizenship question to the short form, as
> it had for the long form asked of one sixth of the population until the
> 2010 census. (Just as it could ask people's height  and weight.) But the
> constitution does not require it and on what constitutional basis should
> (or could) the Court force congress to add such a question to the census?
> Leave aside, for the moment, the obvious point that adding a citizenship
> question would undoubtedly chill participation in the census from some
> communities.  It would certainly be strange for the court to say that the
> constitution's specification of an  actual enumeration of persons (i.e. the
> census clause)  requires an actual enumeration of citizens.
>
> But on the larger point i think some would agree with you that the court
> should put its foot down and adopt a uniform standard: whether people,
> voters, citizens or whatever.   I am not in that camp.  And the prisoner
> issue highlights the reason why i am not.  If we go down this road of
> redistricting on the basis of eligible voters, then we will next be dealing
> with whether the court should now somehow force adjustments (or perhaps
> even a new kind of census) for prisoners, children, disfranchised felons
> and other communities without the vote.  I think states should have
> discretion to do what NY, MD and Delaware did, and adjust census data to
> reassign prisoners to their preincarceration address (or even to delete
> prison census blocks from the data).  But i dont think the constitution
> demands it, and in many states the representational disparities caused by
> counting prisoners in prison would not exist.
>
> So, yes, if a state wants to create its own dataset and use it for
> redistricting,  it can do so.  That is what i take  Burns v Richardson to
> mean.  But if the Court now takes on the role of editing the census form
> and redistricting dataset, i think it will find that the decision will not
> be so easily cabined to citizenship.
>
>
>
>
>
> Nate Persily
> James B. McClatchy Professor of Law
> Stanford Law School
> Crown Quadrangle
> Stanford, CA 94305-8610
> (917) 570-3223
> nate at persily.com
> www.persily.com
>
>
> -------- Original message --------
> From: Douglas Johnson <djohnson at ndcresearch.com>
> Date: 06/04/2015 9:43 AM (GMT-08:00)
> To: 'Rick Hasen' <rhasen at law.uci.edu>, law-election at uci.edu
> Subject: Re: [EL] Politico article and Census counting citizens
>
> The “big data problem” part of Dr. Persily’s article seems incorrect. For
> one thing, the column opens with a factually incorrect statement about the
> current Census: “[T]hat data set counts just two things: the total number
> of people, and the number of people over the age of 18.”  As Dr. Persily no
> doubt knows, the current Census short form also counts the members of
> various ethnic groups [I suspect deleting a reference to that was an
> editor’s error].
>
>
>
> But that’s a secondary issue. The heart of the article’s headline-focused
> argument is near the end:
>
> “The fact that no accurate count of citizens exists should be the end of
> the matter. Unless the justices are prepared to mandate a new kind of
> citizen census — one never contemplated by the Constitution — then they
> should leave it to the states to draw their districts using the most
> accurate data available. “
>
> The Constitution, however, also did not contemplate counting voting age
> population nor ethnicity, and both of those questions have been a part of
> the Census short form for decades. I see no reason why adding a citizenship
> question is more of a constitutional question than adding age and ethnicity
> questions were when they were added.
>
>
>
> As Dr. Persily’s article lays out well, districting rules are (somewhat
> oddly) separated from apportionment rules, and the definition of “one
> person, one vote” is remarkably unspecified by the court.
>
>
>
> But I would rebut the article’s main point by saying such an important
> policy question should not be by whether or not a question is included or
> excluded from the Census short form. The questions on the form have already
> ventured far from the Constitutionally mandated count of “persons,” and
> adding or excluding a citizenship question is a policy decision, not be a
> process nor legal challenge.
>
>
>
> While I have not taken a position either way, I believe that since the
> Court made this decision justiciable, it would be good for the Court to
> answer what it meant when it said ‘one person, one vote,’ either
>
> a)      Each elected official in a given elected body should represent an
> equal number of people?
>
> or
>
> b)      Each eligible voter should have equal voting power over the
> decision of who is elected?
>
>
>
> Think of it this way: if a decision is made to add citizenship to the
> Census form, would proponents of answer (a) still want the decision left to
> the individual jurisdictions?
>
>
>
> -          Doug
>
>
>
> Douglas Johnson, Fellow
>
> Rose Institute of State and Local Government
>
> at Claremont McKenna College
>
> douglas.johnson at cmc.edu
>
> 310-200-2058
>
>
>
>
>
>
> Nate Persily on The Supreme Court’s Big Data Problem in Evenwel
> <http://electionlawblog.org/?p=73106>
>
> Posted on June 3, 2015 7:16 am <http://electionlawblog.org/?p=73106> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Politico
> <http://www.politico.com/magazine/story/2015/06/the-supreme-courts-big-data-problem-118568.html#.VW8MBlxVhHx>
> :
>
> *Legitimate philosophical arguments can be made in favor of using one set
> of statistics over another — just as one could argue that some concerns in
> redistricting, such as keeping counties or communities intact, should
> override the concern for precise equality. A redistricting plan based on
> equal numbers of people, the system we have now, also ensures that the
> workload and constituent-related burdens of representatives are roughly
> equal. In effect, equal representation may be more important than equal
> voting power itself.*
>
> *But the question that confronts the court as it prepares to hear
> the Evenwel case in the fall is whether the Constitution mandates the use
> of one statistic to the exclusion of all else. The fact that no accurate
> count of citizens exists should be the end of the matter. Unless the
> justices are prepared to mandate a new kind of citizen census — one never
> contemplated by the Constitution — then they should leave it to the states
> to draw their districts using the most accurate data available. The one
> person, one vote rule isn’t broken, and the Supreme Court shouldn’t try to
> fix it.*
>
>
>
>
>
>
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>

-- 
Samuel Bagenstos
Frank G. Millard Professor of Law
University of Michigan Law School
https://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
Twitter: @sbagen
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