[EL] ELB News and Commentary 7/7/19

Sat Jul 6 20:26:44 PDT 2019

Just 16 Days Ago, Trump Administration Solicitor General Told Supreme Court Census Form Had to Be Finalized by June 30 or Congress Would Have to Appropriate More Money<https://electionlawblog.org/?p=106104>
Posted on July 6, 2019 3:19 pm<https://electionlawblog.org/?p=106104> by Rick Hasen<https://electionlawblog.org/?author=3>

Marty Lederman<https://twitter.com/marty_lederman/status/1147555236766244865> on the strong grounds for applying estoppel against the government in the census case:
[https://pbs.twimg.com/profile_images/753695042712264704/l7BQS76M_bigger.jpg]<https://twitter.com/marty_lederman>
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Marty Lederman at marty_lederman<https://twitter.com/marty_lederman>

<https://twitter.com/marty_lederman/status/1147555236766244865>

1/ UPDATE on OSG representations w/r/t the census form deadline (h/t @hansilowang<https://twitter.com/hansilowang>):

Just 16 days ago, mere days before the Court was to decide the case, the SG opposed plaintiffs' motion for a partial remand by claiming . . . https://www.supremecourt.gov/DocketPDF/18/18-966/103606/20190620144127047_18-966%20Govt%20opp%20to%20Mot%20for%20Limited%20Remand.pdf#page=22 …<https://t.co/plzZzBYaQj>@rickhasen<https://twitter.com/rickhasen> @gtconway3d<https://twitter.com/gtconway3d>
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Leah Litman<https://twitter.com/LeahLitman/status/1147304511045812224>:
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Leah Litman<https://twitter.com/LeahLitman>
✔@LeahLitman<https://twitter.com/LeahLitman>

<https://twitter.com/LeahLitman/status/1147304511045812224>

It is absolutely stunning to read all of DOJ’s (apparently mis?)representations about the June 30 deadline for printing the census—representations DOJ repeatedly used to its tactical advantage— in this absolutely baller filing.

kudos @dale_e_ho<https://twitter.com/dale_e_ho> et al! https://www.aclu.org/legal-document/motion-amend …<https://t.co/h6CqmHGNeZ>
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Motion to Amend<https://t.co/h6CqmHGNeZ>
aclu.org<https://t.co/h6CqmHGNeZ>

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Posted in census litigation<https://electionlawblog.org/?cat=125>

Election Law Academics Update<https://electionlawblog.org/?p=106102>
Posted on July 6, 2019 2:44 pm<https://electionlawblog.org/?p=106102> by Rick Hasen<https://electionlawblog.org/?author=3>

Here’s my yearly roundup of election law academic hires, promotions moves, visits, accolades:

Yasmin Dawood<https://www.law.utoronto.ca/faculty-staff/full-time-faculty/yasmin-dawood> was named a Member of the Royal Society of Canada College.

Derek Muller was promoted to full professor and will be visiting at Notre Dame Law School in Spring 2020.

Franita Tolson<https://gould.usc.edu/faculty/?id=73521> now Vice Dean for Faculty and Academic Affairs at USC Gould School of Law.

Ciara Torres-Spelliscy<https://www.stetson.edu/law/faculty/torres-spelliscy-ciara/> was awarded the Homer & Dolly Hand Award for Excellence in Faculty Research by Stetson University.

Congratulations all!
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Posted in election law biz<https://electionlawblog.org/?cat=51>

Josh Marshall: Trump Reelection Campaign Suggests Real Purpose of Adding Citizenship Question to Census is To Redistrict on Basis of Citizenship (Hurting Hispanic Voting Power)<https://electionlawblog.org/?p=106100>
Posted on July 6, 2019 10:17 am<https://electionlawblog.org/?p=106100> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Marshall:<https://twitter.com/joshtpm/status/1147487674829365249>
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Josh Marshall<https://twitter.com/joshtpm>
✔@joshtpm<https://twitter.com/joshtpm>

 · 14h<https://twitter.com/joshtpm/status/1147486527817224192>
<https://twitter.com/joshtpm/status/1147486527817224192>

This is a communications official for the Trump re-elect campaign. https://twitter.com/mattwolking/status/1147478033651159040 …<https://t.co/C1NnrsUaTI>
<https://twitter.com/MattWolking/status/1147478033651159040>
Matt Wolking<https://twitter.com/MattWolking/status/1147478033651159040>
✔@MattWolking<https://twitter.com/MattWolking/status/1147478033651159040>

If you want to know why Democrats are desperate to help as many illegals as possible get into our country, look no further than this thread.

Democrats are literally colluding with foreign actors to hack our democracy. https://twitter.com/joshtpm/status/1147284882139353093 …<https://twitter.com/MattWolking/status/1147478033651159040>

[https://pbs.twimg.com/profile_images/1134693728759820288/rsdMM78-_bigger.jpg]<https://twitter.com/joshtpm>
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Josh Marshall<https://twitter.com/joshtpm>
✔@joshtpm<https://twitter.com/joshtpm>

2/ So it seems the Trump re-elect campaign is also saying now that the point of adding a citizenship question to the Census is to make Census less accurate and redistrict on the basis of citizenship rather than residents. cc:@dale_e_ho<https://twitter.com/dale_e_ho> @rickhasen<https://twitter.com/rickhasen>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

The Evenwel Gambit<https://electionlawblog.org/?p=106098>
Posted on July 6, 2019 10:14 am<https://electionlawblog.org/?p=106098> by Rick Hasen<https://electionlawblog.org/?author=3>

Joey Fishkin<https://balkin.blogspot.com/2019/07/the-evenwel-gambit.html>:

So that leaves what I’d call the Evenwel Gambit: fess up, selectively, to Real Reason 2. Claim that you want to add the citizenship question to the Census in order to enable the CVAP-based drawing of district lines in 2021. In the last round of fighting over switching from total population to CVAP—the Evenwel<https://www.scotusblog.com/case-files/cases/evenwel-v-abbott/> case from 2016, one significant issue was that the data<https://www.scotusblog.com/wp-content/uploads/2015/10/Evenwel-PersilyBrief092515.pdf> we have about citizenship, although fairly accurate, is not that granular—it doesn’t measure small enough units, like census blocks—that one would ideally want in order to comply with the exacting jurisprudence of one-person-one-vote.  (The data we have comes from the American Communities Survey (ACS), which has one interesting advantage over the Census: it uses statistical sampling, which the Census does not, and which can be essential for curing problems of nonresponse.)

I predict that the government may well conclude that the Evenwel Gambit is the best they can do: it has the great virtue of being true enough that it cannot be dismissed as post hoc pretext, yet it is not nearly so blatant in its disregard for basic norms of impartiality in governance as Real Reason 1. The case they would make is simple: CVAP and total population are two rival approaches to drawing district lines.  Each has its virtues, they would argue, with total population providing equal representation for equal numbers of people, while CVAP provides more of an equally weighted vote (an argument that collapses under close scrutiny<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1981002>, but that might be good enough for this purpose).  They would ask the Court to allow the Census question in order to give jurisdictions the option of choosing equally weighted votes over equal representation.

This is in line with I wrote at Slate back in May<https://slate.com/news-and-politics/2019/05/census-memo-supreme-court-conservatives-white-voters-alito.html>:

The question whether it is permissible to draw districts in the way Hofeller wanted is an open one. Ed Blum<https://www.aclu.org/blog/racial-justice/affirmative-action/meet-edward-blum-man-who-wants-kill-affirmative-action-higher> brought a 2016 case, Evenwel v. Abbott<https://scholar.google.com/scholar_case?case=1873699076724766700&hl=en&as_sdt=6&as_vis=1&oi=scholarr>, in which the court unanimously rejected Blum’s argument that the state of Texas was constitutionally required to draw districts with equal numbers of eligible voters. But the majority opinion by Justice Ruth Bader Ginsburg did not go further and reach the question whether drawing districts in this way—which would exclude not just noncitizens but also children and felons from the count—violates the Constitution’s equal protection clause. “Because history, precedent, and practice suffice to reveal the infirmity of appellants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population,” Ginsburg concluded.

Justices Clarence Thomas and Samuel Alito, however, wrote concurrences affirming their belief that states have the right to draw districts in this way. There is good reason to believe that the other conservative justices would come along should they have to decide the issue. The newly revealed census documents may now give them the opportunity to do just that.
All of that means that the Supreme Court will likely go along with Ross’ true purpose in including the citizenship question on the census: to allow states to draw districts with equal numbers of voter-eligible persons rather than total persons. The smoking-gun evidence showing that government officials lied in offering the Voting Rights Act excuse for including the question likely will be seen by these justices as irrelevant if the real reason is a permissible one.

See also my post from earlier this week, All’s Well That Ends Well, or All’s Well That Evenwel? How the Commerce Department May Still Help States to Draw Districts with Equal Numbers of Voter Eligible Persons to Minimize Hispanic (and Democratic) Voting Strength<https://electionlawblog.org/?p=105998>.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

ACLU Asks District Court in New York Census Case to Amend the Judgment to Prevent Any Steps by Trump Administration to Modify the 2020 Census Questionnaire<https://electionlawblog.org/?p=106096>
Posted on July 5, 2019 4:35 pm<https://electionlawblog.org/?p=106096> by Rick Hasen<https://electionlawblog.org/?author=3>

Read the motion<https://www.aclu.org/legal-document/motion-amend>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Breaking: Federal Judge in Census Citizenship Question Case Orders Discovery to Continue on Whether Government Acted with Discriminatory Intent<https://electionlawblog.org/?p=106093>
Posted on July 5, 2019 12:48 pm<https://electionlawblog.org/?p=106093> by Rick Hasen<https://electionlawblog.org/?author=3>

Judge Hazel order<https://electionlawblog.org/wp-content/uploads/hazel-order.pdf>, rejecting the DOJ gambit<https://electionlawblog.org/?p=106089>:

The Court has received and appreciates the discovery plans submitted by both sides. It appears that while the parties agree to the parameters of the proposed schedule, Defendants take the view that discovery on the remaining equal protection and Section 1985 claims should be put on hold pending a “new” decision being reached by the Commerce Secretary. While there is some degree of logic to Defendants’ position, the Court disagrees based on the unique circumstances of this case.

Plaintiffs’ remaining claims are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive. The discovery contemplated by the Court related to the recently discovered evidence in this case goes directly to that issue. Regardless of the justification Defendants may now find for a “new” decision, discovery related to the origins of the question will remain relevant. Given that time is of the essence, therefore, the prudent course is to proceed with discovery. As both sides acknowledge, the schedule may be adjusted as circumstances warrant.
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Posted in census litigation<https://electionlawblog.org/?cat=125>

Breaking: DOJ Tells Federal Court It May Have New Rationale Later for Including the Census Question, Wants to Stop Discovery Now Because a New Decision Would Be Cleaned of Animus (Citing Travel Ban Case)<https://electionlawblog.org/?p=106089>
Posted on July 5, 2019 11:08 am<https://electionlawblog.org/?p=106089> by Rick Hasen<https://electionlawblog.org/?author=3>

In a new filing<https://www.justsecurity.org/wp-content/uploads/2019/07/DOJ.StatusReport.MD_.census.pdf>, the Department of Justice has told the federal district court in Maryland considering whether the addition of the citizenship question on the census was done for reasons of racial animus that the government may still come forward with a reason for including the question. Further, the government argues that any new reason would have to be judged by its own terms, as the courts did in the travel ban case. It wants to stop all discovery of bad motives for the original decision as no longer relevant.

This is quite an act of political chutzpah. To begin with, one doesn’t start from a decision and then reserve engineer a rationale to support it. Either there is a reason for including the citizenship question or there is not.

Second, and more importantly, DOJ is arguing for what Joshua Matz has termed “animus cleansing<https://takecareblog.com/blog/thoughts-on-the-chief-s-strategy-in-the-census-case>.” Forget if we had discriminatory racial intent before in adding a question, DOJ argues, because any new decision would be fresh and pure. And because of this purity, there’s no need to look whether the government had discriminatory intent to start with. Presto! Nothing to see here court, please move on.

As I wrote earlier today,<https://electionlawblog.org/?p=106084> I don’t expect the lower courts to buy it. And I think this case is likely to proceed in the trial court on the question of discriminatory animus. If DOJ keeps pressing forward, this entire mess will be back in Chief Justice Roberts’ lap over the summer.

[This post has been updated.]
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Pennsylvania Governor Vetoes Bill That Would Have Ended Straight-Ticket Voting as Price for Voting Machine Upgrades<https://electionlawblog.org/?p=106087>
Posted on July 5, 2019 7:59 am<https://electionlawblog.org/?p=106087> by Rick Hasen<https://electionlawblog.org/?author=3>

Governor statement<https://www.governor.pa.gov/newsroom/governor-wolf-vetoes-senate-bill-48/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

--
Rick Hasen
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UC Irvine School of Law
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