[EL] If Trump’s Executive Order Ends Up Creating Better Citizenship Data, Could It Be Used by States to Draw CONGRESSIONAL Districts with Equal Numbers of Voter Eligible Persons (and Not Total Population)? Would It Allow for Use in State and Local Distr...

Fri Jul 12 10:05:53 PDT 2019

This is a very good point Derek.
It is certainly now how I read it, or what the commentary read like, when Evenwel came out.

From: Derek Muller <derek.muller at gmail.com>
Date: Friday, July 12, 2019 at 9:10 AM
To: Rick Hasen <rhasen at law.uci.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: If Trump’s Executive Order Ends Up Creating Better Citizenship Data, Could It Be Used by States to Draw CONGRESSIONAL Districts with Equal Numbers of Voter Eligible Persons (and Not Total Population)? Would It Allow for Use in State and Local Districts...

I continue to remain confused by these overreadings of Evenwel--the claim that "language in Evenwel itself requires the use of total population for Congressional districts." Setting aside the fact it's a strained reading of the opinion, Justice Ginsburg herself has publicly said she tried to include such language in a first draft of the opinion but failed to secure a majority for that proposition: http://electionlawblog.org/?p=84146 It could be, I suppose, that she managed to accidentally include such language, but I think it's not a terribly strong omen for future interpretations of ambiguous language in Evenwel to claim that such a construction has the Court's majority.

Derek

Derek T. Muller
Associate Professor of Law
Pepperdine University School of Law
24255 Pacific Coast Hwy
Malibu, CA 90263
+1 310-506-7058<tel:+13105067058>
SSRN: http://papers.ssrn.com/author=464341
Twitter: http://twitter.com/derektmuller

On Fri, Jul 12, 2019, 11:40 AM Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Reminder: Justin Levitt Guest Blogging July 13-20<https://electionlawblog.org/?p=106166>
Posted on July 12, 2019 8:32 am<https://electionlawblog.org/?p=106166> by Rick Hasen<https://electionlawblog.org/?author=3>

I hope to be as off the grid as I can from this Saturday through the next (though maybe I won’t be able to resist something on the census or Mueller).

I leave you in the excellent hands of Justin Levitt<https://www.lls.edu/faculty/facultylistl-r/levittjustin/>. Please direct all of your tips and suggestions to him.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106166&title=Reminder%3A%20Justin%20Levitt%20Guest%20Blogging%20July%2013-20>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

If Trump’s Executive Order Ends Up Creating Better Citizenship Data, Could It Be Used by States to Draw CONGRESSIONAL Districts with Equal Numbers of Voter Eligible Persons (and Not Total Population)? Would It Allow for Use in State and Local Districts?<https://electionlawblog.org/?p=106205>
Posted on July 12, 2019 8:29 am<https://electionlawblog.org/?p=106205> by Rick Hasen<https://electionlawblog.org/?author=3>

In earlier <https://electionlawblog.org/?p=105998> posts<https://electionlawblog.org/?p=106190>, and in a Slate piece<https://slate.com/news-and-politics/2019/05/census-memo-supreme-court-conservatives-white-voters-alito.html>, I explained that both the original reason for trying to include the citizenship question on the census and Trump’s executive order<https://big.assets.huffingtonpost.com/athena/files/2019/07/12/5d27ec0ce4b02a5a5d586403.pdf> issued yesterday was to allow states to try to draw districts with equal numbers of voter-eligible persons, rather than equal numbers of all people. As the Hofeller memo explains, drawing districts in this way would increase white, non-Hispanic Republican voting power. Trump pointed to this as one of the reasons for his alternative approach of gathering better citizenship data:

Fourth, it may be open to States to design State and local
legislative districts based on the population of voter-eligible
citizens. In Evenwel v. Abbott, 136 S. Ct. 1120 (2016), the Supreme
Court left open the question whether “States may draw districts to
equalize voter-eligible population rather than total population.”
Some States, such as Texas, have argued that “jurisdictions may,
consistent with the Equal Protection Clause, design districts using
any population baseline — including total population and
voter-eligible population — so long as the choice is rational and
not invidiously discriminatory”. Some courts, based on Supreme Court
precedent, have agreed that State districting plans may exclude
individuals who are ineligible to vote. Whether that approach is
permissible will be resolved when a State actually proposes a
districting plan based on the voter-eligible population. But because
eligibility to vote depends in part on citizenship, States could more
effectively exercise this option with a more accurate and complete
count of the citizen population.

The approach raises two questions.

First, would the data on citizenship that government agencies will now collect be granular enough to allow for the drawing of voter-eligible equal districts? It seems to me this is an open question. GivenEvenwel<https://scholar.google.com/scholar_case?case=1873699076724766700&hl=en&as_sdt=6&as_vis=1&oi=scholarr> and what we know about the position of the Justices, there are at least three Justices (Alito, Gorsuch, and Thomas) who would have no problem accepting redistricting with less data (or perhaps no data at all—it is not clear whether Alito and Gorusch really agree with the one person, one vote standard, and Thomas is a no). For those Justices who would care about whether the data is good enough, I think this would need to be determined by the courts.

Second, Assuming drawing districts with voter eligible persons is allowed, and assuming the data are good enough, could the lines be drawn for use in creating new congressional districts? (Note that Trump’s executive order speaks only about using them for state and local districts.) I have always taken this to be an open question following Evenwel, but others, including Marty Lederman, believe that the 1964 case Wesberry v. Sa<https://supreme.justia.com/cases/federal/us/376/1/>nders and language in Evenwel itself requires the use of total population for Congressional districts. (The part of Evenwel at issue reads: “Appellants ask us to find in the Fourteenth Amendment’s Equal Protection Clause a rule inconsistent with this “theory of the Constitution.” But, as the Court recognized in Wesberry, this theory underlies not just the method of allocating House seats to States; it applies as well to the method of apportioning legislative seats within States.”).

I’m not sure I agree with this view, and would have to do more research on whether I think Wesberryand Evenwel settle this question. This could end up in the courts after the 2020 round of redistricting.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

“F.E.C. Allows Security Company to Help 2020 Candidates Defend Campaigns”<https://electionlawblog.org/?p=106203>
Posted on July 12, 2019 8:04 am<https://electionlawblog.org/?p=106203> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/07/11/technology/2020-campaigns-election-security.html>:

The Federal Election Commission said on Thursday that a Silicon Valley security company could immediately start helping 2020 presidential candidates defend their campaigns from the kinds of malicious email attacks that Russian hackers exploited in the 2016 election.

The F.E.C. made its advisory opinion one month after lawyers for the commission advised it to block a<https://www.nytimes.com/2019/06/06/technology/ftc-rules-cyberattacks.html?module=inline> request by the company, Area 1 Security, which had sought to provide services to 2020 presidential candidates at a discount. The F.E.C. lawyers said that Area 1 would be violating campaign finance laws that prohibit corporations from offering free or discounted services to federal candidates. The same law also prevents political parties from offering candidates cybersecurity assistance because it is considered an “in-kind donation.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106203&title=%E2%80%9CF.E.C.%20Allows%20Security%20Company%20to%20Help%202020%20Candidates%20Defend%20Campaigns%E2%80%9D>
Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>, federal election commission<https://electionlawblog.org/?cat=24>

Roundup of Stories on Trump’s Census Cave at How Appealing<https://electionlawblog.org/?p=106201>
Posted on July 12, 2019 8:00 am<https://electionlawblog.org/?p=106201> by Rick Hasen<https://electionlawblog.org/?author=3>

Thanks<https://howappealing.abovethelaw.com/2019/07/11/#96950> Howard!
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106201&title=Roundup%20of%20Stories%20on%20Trump%E2%80%99s%20Census%20Cave%20at%20How%20Appealing>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Roberts’ Next Thicket?: The Coming One-Person, One-Vote Battle Over “How Much is Too Much”<https://electionlawblog.org/?p=106199>
Posted on July 12, 2019 7:43 am<https://electionlawblog.org/?p=106199> by Rick Hasen<https://electionlawblog.org/?author=3>

Mike Parsons blogs.<https://moderndemocracyblog.com/2019/07/11/roberts-next-thicket-the-coming-one-person-one-vote-battle-over-how-much-is-too-much/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106199&title=%E2%80%9CRoberts%E2%80%99%20Next%20Thicket%3F%3A%20The%20Coming%20One-Person%2C%20One-Vote%20Battle%20Over%20%E2%80%9CHow%20Much%20is%20Too%20Much%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Axios: Leonard Leo and Federalist Society Stalwarts “Shocked and Floored” By Trump’s Census Cave<https://electionlawblog.org/?p=106197>
Posted on July 12, 2019 7:40 am<https://electionlawblog.org/?p=106197> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios’s Jonathan Swan<https://www.axios.com/donald-trump-census-citizenship-question-conservative-reaction-5a2d3a27-ed8e-4a75-96ca-c89f68379a82.html>:

Top figures in the conservative legal community are stunned and depressed by President Trump’s cave in his fight for a citizenship question on the 2020 Census.
The state of play: Sources say Leonard Leo and other Federalist Society stalwarts were shocked and floored by how weak the decision was. “What was the dance … all about if this was going to be the end result?” a conservative leader asked.
“A total waste of everyone’s time. … It’s certainly going to give people pause the next time one has to decide how far to stick one’s neck out.”
One GOP strategist called it a “punch in the gut.”

Still not clear to me why the “conservative legal community” cared so much about this issue. Unless this was the reason<https://slate.com/news-and-politics/2019/05/census-memo-supreme-court-conservatives-white-voters-alito.html>.
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Posted in census litigation<https://electionlawblog.org/?cat=125>

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.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“How a Congressman’s Extramarital Affairs Could Undermine Campaign Spending Rules”<https://electionlawblog.org/?p=106192>
Posted on July 11, 2019 2:11 pm<https://electionlawblog.org/?p=106192> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy blogs<https://www.brennancenter.org/blog/how-congressman-extramarital-affairs-could-undermine-campaign-spending-rules>.

I’d like to see how this squares with treating Trump’s hush money payments to Stormy Daniels as campaign related.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

What Trump is Likely Up to with the Census Case Given the ABC News Report They are Abandoning an Effort to Include the Question: Still An Effort to Diminish Hispanic (and Democratic) Voting Strength<https://electionlawblog.org/?p=106190>
Posted on July 11, 2019 12:24 pm<https://electionlawblog.org/?p=106190> by Rick Hasen<https://electionlawblog.org/?author=3>

See my earlier post:  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>

Scary Norm Ornstein Piece: “What Happens If the 2020 Election Is a Tie?”<https://electionlawblog.org/?p=106188>
Posted on July 11, 2019 9:28 am<https://electionlawblog.org/?p=106188> by Rick Hasen<https://electionlawblog.org/?author=3>

Here<https://www.theatlantic.com/ideas/archive/2019/07/what-happens-if-2020-election-tie/593608/> at the Atlantic.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Breaking: Washington State Supreme Court Unanimously Rejects First Amendment Challenge to Seattle’s Campaign Finance Voucher Program<https://electionlawblog.org/?p=106186>
Posted on July 11, 2019 9:25 am<https://electionlawblog.org/?p=106186> by Rick Hasen<https://electionlawblog.org/?author=3>

This seems quite right<https://www.courts.wa.gov/opinions/pdf/966605.pdf>, and I always thought this challenge was a sure loser.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

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