[EL] census developments/more news 7/3/19

Wed Jul 3 13:44:04 PDT 2019

Federal Court in Maryland Census Case Gives Trump DOJ Until 2 PM Friday to Stipulate that Census Question Is Off the Census or the Case Goes Forward<https://electionlawblog.org/?p=106035>
Posted on July 3, 2019 1:38 pm<https://electionlawblog.org/?p=106035> by Rick Hasen<https://electionlawblog.org/?author=3>

Hansi Lo Wang:<https://twitter.com/hansilowang/status/1146517341649457154>
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Hansi Lo Wang<https://twitter.com/hansilowang>
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UPDATE: US District Judge George Hazel is moving up deadline to Friday, July 5, at 2 p.m. ET for Trump admin to enter written agreement that confirms it’s no longer pursuing #CitizenshipQuestion<https://twitter.com/hashtag/CitizenshipQuestion?src=hash> on #2020Census<https://twitter.com/hashtag/2020Census?src=hash>, @MALDEF<https://twitter.com/MALDEF>’s Denise Hulett & @CovingtonLLP<https://twitter.com/CovingtonLLP>’s Shankar Duraiswamy tell me.
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Hansi Lo Wang<https://twitter.com/hansilowang>
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2. If Trump administration does not enter into written agreement to not pursue a #CitizenshipQuestion<https://twitter.com/hashtag/CitizenshipQuestion?src=hash> by Friday 2 p.m. ET hearing, Judge Hazel is ready to move forward with reconsidering recently resurrected discrimination and conspiracy allegations against the question.
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WSJ<https://www.wsj.com/articles/trump-tweet-sows-confusion-on-census-11562175122?shareToken=st844fa54eb2974a479756a294fb0e39eb&reflink=share_mobilewebshare>: “Nobody has any f—ing idea,” one of the people said, asked what the president’s tweet was referencing. The person described the tweet as “meaningless.”

That DOJ lawyers could not do this today is a sign that things are still unsettled in the Trump Administration on this issue, despite yesterday’s champagne popping.
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Posted in census litigation<https://electionlawblog.org/?cat=125>

“To Gerrymander Or Not To Gerrymander? That’s The Question For Democrats”<https://electionlawblog.org/?p=106032>
Posted on July 3, 2019 12:59 pm<https://electionlawblog.org/?p=106032> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR<https://www.npr.org/2019/07/03/737754949/to-gerrymander-or-not-to-gerrymander-thats-the-question-for-democrats> reports.
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Am I misreading this, or is Scott Walker complaining that Democrats draw "unfair" maps because they have more supporters than Republicans do and so they can redistrict to capture seats reflecting their popularity? https://www.npr.org/2019/07/03/737754949/to-gerrymander-or-not-to-gerrymander-thats-the-question-for-democrats …<https://t.co/FOL3pKAYmK>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Linda Greenhouse Believes Roberts Changed His Position in Census Case After First Draft Favored the Government<https://electionlawblog.org/?p=106030>
Posted on July 3, 2019 11:52 am<https://electionlawblog.org/?p=106030> by Rick Hasen<https://electionlawblog.org/?author=3>

Linda in the NYT<https://www.nytimes.com/2019/07/03/opinion/trump-supreme-court-census.html>:

But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.

I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.

To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”

Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one….

There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief<https://www.nytimes.com/2019/06/25/us/census-citizenship-question.html?searchResultPosition=4&module=inline> with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“Clock is Ticking to Fix Prison Gerrymandering”<https://electionlawblog.org/?p=106026>
Posted on July 3, 2019 9:39 am<https://electionlawblog.org/?p=106026> by Rick Hasen<https://electionlawblog.org/?author=3>

Daniel Nichanian<https://www.appealpolitics.org/2019/prison-gerrymandering-clock-ticking/> for The Appeal.
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Posted in felon voting<https://electionlawblog.org/?cat=66>, redistricting<https://electionlawblog.org/?cat=6>

Rick Pildes: What Do Voters Think Independent Redistricting Commissions Should Do? (Rucho Symposium)<https://electionlawblog.org/?p=106024>
Posted on July 3, 2019 9:35 am<https://electionlawblog.org/?p=106024> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Rick Pildes<https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=20200>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:

Now that the Supreme Court’s decision means that limits on partisan gerrymandering will have to come from venues such as Independent Redistricting Commissions (IRC) created by voter initiatives in states that permit such initiatives, it is worth keeping in mind that merely moving districting to IRCs does not resolve the underlying substantive questions that must be confronted about what makes a districting system “fair” or appropriate.  Indeed, in the four states that this fall adopted ballot-measures to create IRCs or other non-partisan processes to draw districts, we actually see four different approaches.

In light of Rucho, it’s worth paying more attention to the specific differences between how voter initiatives define the constraints and obligations of an IRC.  I’ll summarize here the differences just in the four measures approved this fall.  Conceptually, the biggest difference is between what I call more “process-oriented” approaches and more “outcome-oriented” ones.   The basic difference is between a focus on “fair criteria” that do not define those in terms of some measure of seats/votes outcomes and ones that do.  Here is a brief description of the differences in recent voter initiatives, from a piece I did on this for the Harvard Law Review blog<https://blog.harvardlawreview.org/redistricting-reform-and-the-2018-elections/>:

The Missouri measure<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.sos.mo.gov_CMSImages_Elections_Petitions_2018-2D048.pdf&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=Zh4AjZmTmHwS2ktgWj5xt16kjRrDiOC5ul-kGYpnOk4&s=J9Z9p_y4BM0-ih31DKrhupllO_57Y9tmCbF-Mnj4meg&e=>, for example, which affects only state (not congressional) legislative districts, endorses the most extreme outcome-oriented approach of any statute or ballot measure I’ve seen. This measure provides standards that a non-partisan demographer, who designs the maps in the first instance, is required to use. After specifying that maps should be based on equal population, comply with federal law, and meet certain racial fairness requirements, the initiative then states that the demographer is to do the following:

Districts shall be designed in a manner that achieves both partisan fairness and, secondarily, competitiveness. Partisan fairness means that parties shall be able to translate their popular support into legislative representation with approximately equal efficiency. Competitiveness means that parties’ legislative representation shall be substantially and similarly responsive to shifts in the electorate’s preferences. . . .

In any plan of apportionment and map of the proposed districts submitted to the respective apportionment commission, the non-partisan state demographer shall ensure the difference between the two parties’ total wasted votes, divided by the total votes cast for the two parties, is as close to zero as practicable.

The initiative, which proceeds to enact a type of efficiency gap<https://urldefense.proofpoint.com/v2/url?u=https-3A__lawreview.uchicago.edu_publication_partisan-2Dgerrymandering-2Dand-2Defficiency-2Dgap-2D0&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=Zh4AjZmTmHwS2ktgWj5xt16kjRrDiOC5ul-kGYpnOk4&s=8yuKbe01VPOVSGBy1mu8FNzuGSgXcd4lYRVje3ThL_I&e=> test, requires that these outcome-oriented objectives take priority over making sure that districts are contiguous, compact, or keep towns and other units together (I don’t actually believe a demographer would in fact ignore contiguity for the purposes of ensuring fair partisan outcomes, but that’s how the initiative reads.)

Meanwhile, the Utah initiative<https://urldefense.proofpoint.com/v2/url?u=https-3A__elections.utah.gov_Media_Default_2018-2520Election_Issues-2520on-2520the-2520Ballot_Postings_Proposition-25204.pdf&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=Zh4AjZmTmHwS2ktgWj5xt16kjRrDiOC5ul-kGYpnOk4&s=eVhvRGsrGgYemNEokNDsG2hu0MNhsZUcgdqIdwlizKs&e=> appears to take a process-oriented approach, or perhaps to try to merge process and outcome approaches, but in a way likely to foster confusion. Thus, the commission is told that it must meet, to the greatest extent practical and in a specific order of priority, seven process-oriented criteria, which include the usual factors, along with ones such as “following natural and geographic features, boundaries, and barriers.” But then, after this specific list of rank-ordered priorities that must be followed to the greatest extent practical, the next provision tells the commission not to “divide districts in a manner that purposefully or unduly favors or disfavors … any political party.” Utah’s commission would be only advisory. The legislature can reject the commission’s map and enact its own plan. However, it would be bound by the same criteria as the commission and would have to issue a report explaining why its plan did better at satisfying these criteria.

To tell the commission to follow process-based criteria and not engage in purposeful partisan gerrymandering is one thing. Both of those objectives can be accomplished together. But what does it mean to tell it both to follow these criteria and also not to “unduly favor or disfavor” a political party? The “unduly favor” standard sounds like an effects-based or outcomes-based measure that applies even if the commission acts without any partisan intent. So if the commission first follows all the process-based criteria, but the map that results would then favor one party or the other – in terms of how many seats that party gets compared to its statewide vote – what is the commission supposed to do? Sacrifice some of the process criteria? Or not pay attention to the outcomes after all? If the process-oriented criteria are supposed to have priority, how much room does that leave to adjust the map to avoid “unduly” favoring or disfavoring a political party?

Michigan’s initiative<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.michigan.gov_documents_sos_Voters-5FNot-5FPol-5Fp-5F598255-5F7.pdf&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=Zh4AjZmTmHwS2ktgWj5xt16kjRrDiOC5ul-kGYpnOk4&s=2MIH5Vd6MG-8E46yXWSkFyEUNiy2gxZzM5Rxcy1pLqs&e=>, which applies to both Congress and state districts, is similar to Utah’s in trying to blend process and outcome criteria, but with a different set of priorities. Thus, Michigan’s proposal first requires compliance with federal law, contiguity, and then respect for communities of interest. But the next requirement, in order of priority, is that the “districts shall not provide a disproportionate advantage to any political party,” using “accepted measures of partisan fairness.” Only after that requirement is met is the commission then required to reflect pre-existing boundaries of towns, cities, and counties and to be reasonably compact.

Because the commission’s plans cannot provide a disproportionate advantage to a party, this requirement goes beyond ensuring that the commission not act with partisan intent. The effects of its plan must still not advantage any party. In addition, since this requirement is given priority over drawing compact districts or keeping towns and the like together, the Michigan initiative might be read to require that districters use bizarrely shaped districts and break up towns, cities, and counties whenever necessary to ensure that the map produces fair partisan outcomes, in the sense that a party’s proportion of seats corresponds to its proportion of statewide votes.

Finally, Colorado‘s dual initiatives (one for Congress<https://urldefense.proofpoint.com/v2/url?u=http-3A__leg.colorado.gov_sites_default_files_initiative-252520referendum-5Fyfinal.pdf&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=Zh4AjZmTmHwS2ktgWj5xt16kjRrDiOC5ul-kGYpnOk4&s=HqLVbyXZQtmV6zJpvkiMVGPfZCDJ9z9cCXOQhUS-7ZI&e=> and one for state districts<https://urldefense.proofpoint.com/v2/url?u=http-3A__leg.colorado.gov_sites_default_files_initiative-252520referendum-5Fzfinal.pdf&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=Zh4AjZmTmHwS2ktgWj5xt16kjRrDiOC5ul-kGYpnOk4&s=l8krUqNwM008n4_Q5QbYpq6m2LGIPW7Am0alyR_EUuk&e=>), take another approach altogether. They also try to blend process and outcome approaches, but the outcomes that the commission is required to pursue are competitive elections, not partisan fairness. By their terms, these initiatives start with the standard requirements of population equality and compliance with federal law, then require preservation of communities of interest and compact districts. After that, the initiatives require that map drawers, “to the extent possible, maximize the number of politically competitive districts.”

There can be a significant difference between maximizing competitiveness and maximizing “fair” partisan outcomes. A plan in which all districts are designed to be 53% Party A voters and 47% Party B voters (based on past voting patterns) would be one in which all districts are competitive. But it might be that Party A would then win all the seats. Depending on precisely how “competitiveness” is interpreted, then, the Colorado commission might operate with a very different sense of “fair districts” than that in Missouri or Michigan or Utah.

To the extent reform shifts to IRCs, this illustrates the kind of choices that will have to be made in instructing the IRCs about exactly what they are supposed to do.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

“The Human Cost of the Partisan Gerrymandering Decision”<https://electionlawblog.org/?p=106022>
Posted on July 3, 2019 9:02 am<https://electionlawblog.org/?p=106022> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Ruth Greenwood in the Fulcrum<https://thefulcrum.us/redistricting/supreme-court-partisan-gerrymander>:

Last year the court told us in Whitford that it wanted us to develop further evidence to explain the harms to individual voters of the Wisconsin gerrymander. Consequently, my team has spent the last 12 months hearing the tragic stories of Wisconsin voters who were harmed by the extreme gerrymander and now feel left out, left behind and totally ignored by their legislators. At the least it is depressing; in many cases it brings me to tears.

On Thursday afternoon, I spoke with Donald Winter, of Neenah, Wis. Winter has lived all of his 83 years in Wisconsin, except when he was deployed overseas with the Marine Corps in the 1950s. He found time, in addition to his work in a local foundry, to serve as an alderman on his local council for over 20 years. I explained the Supreme Court’s decision to him. “Oh ….” he said. Then he took a deep breath and asked in a genuinely searching way: “Do they just not care about us?” My eyes welled with tears. “I care about you, Mr. Winter, and there are millions of Americans who do, but … well … a majority of those in power, those at the Supreme Court and those in your state legislature, I guess they don’t.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Trump Calls Reports About His Administration Dropping Citizenship Question from the Census Form “FAKE!,” But His Lawyers Yesterday Said the Battle Was Over<https://electionlawblog.org/?p=106020>
Posted on July 3, 2019 8:09 am<https://electionlawblog.org/?p=106020> by Rick Hasen<https://electionlawblog.org/?author=3>

Well let’s see where things go from here<https://twitter.com/realDonaldTrump/status/1146435093491277824>:
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Donald J. Trump<https://twitter.com/realDonaldTrump>
✔@realDonaldTrump<https://twitter.com/realDonaldTrump>

<https://twitter.com/realDonaldTrump/status/1146435093491277824>

The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the answer to this question.
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Posted in census litigation<https://electionlawblog.org/?cat=125>

“A Day of Sorrow for American Democracy”<https://electionlawblog.org/?p=106018>
Posted on July 3, 2019 7:55 am<https://electionlawblog.org/?p=106018> by Rick Hasen<https://electionlawblog.org/?author=3>

Charles Fried <https://www.theatlantic.com/ideas/archive/2019/07/rucho-v-common-cause-occasion-sorrow/593227/> on Rucho for The Atlantic.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

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