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

[John Tanner]

I feel certain that we’ll see more on that after 2020.  

Sent from my iPhone

> On Jul 11, 2019, at 7:47 PM, Marty Lederman <Martin.Lederman at law.georgetown.edu> wrote:
> 
> 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
>>> Posted on July 11, 2019 3:08 pm by Rick Hasen
>>> 
>>> 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, 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, 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.
>>> 
>>> <image001.png>
>>> 
>>> Posted in census litigation, Supreme Court
>>> 
>>>  
>>> 
>>>  
>>> 
>>> -- 
>>> 
>>> 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
>>> 
>>> <image002.png>
>>> 
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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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