[EL] The Trump (Second) Cave on the Citizenship Question is a Double Victory for the Rule of Law

Thu Jul 11 16:47:52 PDT 2019

Yes.  And so did the U.S. in its brief in *Evenwel*--and the *Evenwel *Court
did, as well:  "[A]s the Court recognized in *Wesberry*, this theory [of
equal representation of *residents*] underlies not just the method of
allocating House seats to States; *it applies as well to the method of
apportioning legislative seats within States*."  136 S. Ct. at 1128–29.

On Thu, Jul 11, 2019 at 7:31 PM Rick Hasen <rhasen at law.uci.edu> wrote:

> Do you take that as a holding of Wesberry?
>
> Rick Hasen
> Sent from my iPhone. Please excuse typos.
> ------------------------------
> *From:* Marty Lederman <Martin.Lederman at law.georgetown.edu>
> *Sent:* Thursday, July 11, 2019 4:16:27 PM
> *To:* Rick Hasen
> *Cc:* Election Law Listserv
> *Subject:* Re: [EL] The Trump (Second) Cave on the Citizenship Question
> is a Double Victory for the Rule of Law
>
> Note, by the way, that Trump was careful to say that some states "may want
> to draw *state and local *legislative districts, based upon the voter
> eligible population."
>
> I take that to be an implicit concession that states can't do so for
> congressional districts--as the Court held in *Wesberry*, 376 U.S. at 8-9.
>
> On Thu, Jul 11, 2019 at 6:15 PM Rick Hasen <rhasen at law.uci.edu> wrote:
>
>> The Trump (Second) Cave on the Citizenship Question is a Double Victory
>> for the Rule of Law <https://electionlawblog.org/?p=106194>
>>
>> Posted on July 11, 2019 3:08 pm <https://electionlawblog.org/?p=106194>
>> by *Rick Hasen* <https://electionlawblog.org/?author=3>
>>
>> President Trump’s Speech this afternoon in which he said that the
>> Administration would give up on efforts to add a citizenship question to
>> the census is a victory for the rule of law. Many people were predicting
>> that Trump would use an Executive Order in an effort to force people in the
>> Census Bureau to ignore multiple court orders which barred the inclusion of
>> the question. I had been saying to wait and see, and fortunately, the
>> Administration did not provoke a constitutional crisis by ignoring the
>> judiciary and judicial review.
>>
>> This is the second victory for the rule of law. The first was that the
>> Supreme Court, likely thanks to the Hofeller files,
>> <https://slate.com/news-and-politics/2019/05/census-memo-supreme-court-conservatives-white-voters-alito.html> refused
>> to go along with the charade that the government wanted to add the census
>> question to help Hispanic voters in Voting Rights Act lawsuits. In fact, it
>> was quite the opposite: it was an attempt to maximize, in Hofeller’s terms,
>> white Republican voting power at the expense of Hispanics and Democrats.
>> The pretext was too much for even Chief Justice Roberts to handle.
>>
>> Sure it is not all good news. Four Justices were willing to go along with
>> this charade. Roberts’ majority opinion created an easy path for inclusion
>> of the citizenship question in future decades, so long as the government
>> learns to lie better. The government will still collect citizenship data to
>> give Republican states a way to draw districts with equal numbers of voter
>> eligible citizens <https://electionlawblog.org/?p=105998>, rather than
>> all persons, thereby diminishing Hispanic (and Democratic) voting power.
>> (The question of whether that is permissible will have to be decided by the
>> Supreme Court, where the odds are good that drawing such discriminatory
>> district would be allowed.) And attorney general William Barr further lied
>> when he said that the Administration would have won its lawsuits, if only
>> they had more time. (Not only would they have had a difficult time
>> manufacturing a new pretext; the were amateurs in trying to fix things, and
>> had no good explanation for why they could extend the deadline for printing
>> after telling the Supreme Court it had to take the case on an expedited
>> basis and skip the Court of Appeals given the time crunch.)
>>
>> So it is not all good news. But it is good news for the census (where the
>> real work of getting people to answer the survey is just beginning, given
>> all of the dirt Trump has thrown up in the air, and all the intimidation of
>> non-citizens to participate).
>>
>> And it is good news for the rule of law. Even the Trump Administration
>> listened to the courts. We shouldn’t lose sight of that significant victory.
>>
>> [image: Share]
>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106194&title=The%20Trump%20(Second)%20Cave%20on%20the%20Citizenship%20Question%20is%20a%20Double%20Victory%20for%20the%20Rule%20of%20Law>
>>
>> Posted in census litigation <https://electionlawblog.org/?cat=125>, Supreme
>> Court <https://electionlawblog.org/?cat=29>
>>
>>
>>
>>
>>
>> --
>>
>> Rick Hasen
>>
>> Chancellor's Professor of Law and Political Science
>>
>> UC Irvine School of Law
>>
>> 401 E. Peltason Dr., Suite 1000
>>
>> Irvine, CA 92697-8000
>>
>> 949.824.3072 - office
>>
>> rhasen at law.uci.edu
>>
>> http://www.law.uci.edu/faculty/full-time/hasen/
>>
>> http://electionlawblog.org
>>
>> [image: signature_1204228785]
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>
>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
>

-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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