[EL] ELB News and Commentary 7/13/19

Sat Jul 13 12:17:57 PDT 2019

Forgive me - I didn't see Rick forward a blog update to the listserv yesterday, so this is going to be a doozy.

Citizenship and the Census: Behind the Bluster<https://electionlawblog.org/?p=106251>
Posted on July 13, 2019 12:12 pm<https://electionlawblog.org/?p=106251> by Justin Levitt<https://electionlawblog.org/?author=4>

Hansi Lo Wang points to<https://twitter.com/hansilowang/status/1150091323657084928?s=20> a July 3 census filing<https://assets.documentcloud.org/documents/6192581/2020-Census-Supporting-Statement-A-Revised-July.pdf> under the Paperwork Reduction Act (the weeds matter, people) in which the Department of Commerce, "having carefully considered the matter, has determined that there is not sufficient time<https://www.documentcloud.org/documents/6192581-2020-Census-Supporting-Statement-A-Revised-July.html#document/p18/a512146> to develop an alternative record to support inclusion of the citizenship question."  That would have been really awkward to explain in another return to the courts.

The same paragraph<https://www.documentcloud.org/documents/6192581-2020-Census-Supporting-Statement-A-Revised-July.html#document/p18/a512146> also says that the Secretary has directed the Census Bureau to "produce citizen voting-age population (CVAP) information prior to April 1, 2021 that states may use in redistricting."
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Posted in census litigation<https://electionlawblog.org/?cat=125>, redistricting<https://electionlawblog.org/?cat=6>
Citizenship and the Census: pivot to the complete count<https://electionlawblog.org/?p=106249>
Posted on July 13, 2019 12:12 pm<https://electionlawblog.org/?p=106249> by Justin Levitt<https://electionlawblog.org/?author=4>

With the legal fight over the content of the 2020 enumeration questionnaire finally settled, commentators and advocates are turning to the fight over getting the count right.  Here's one example<https://www.washingtonpost.com/opinions/2019/07/12/trump-lost-citizenship-question-fight-court-now-real-fight-begins/?utm_term=.6b705f9fccab> from Josh Geltzer and Mary McCord in the WaPo, and another in The Hill<https://thehill.com/regulation/court-battles/452886-trumps-census-opponents-warn-the-fight-isnt-over>.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, redistricting<https://electionlawblog.org/?cat=6>
Citizenship and the Census: pivot to redistricting<https://electionlawblog.org/?p=106247>
Posted on July 13, 2019 12:11 pm<https://electionlawblog.org/?p=106247> by Justin Levitt<https://electionlawblog.org/?author=4>

And here's the other turn Rick's been forecasting<https://electionlawblog.org/?p=105998>: a HuffPost piece<https://www.huffpost.com/entry/trump-redistricting-based-on-citizens_n_5d28f2e0e4b0060b11ec54fb> discussing the potential to use data culled for the President's Executive Order in the redistricting process.  And a WaPo dive<https://www.washingtonpost.com/politics/2019/07/12/heres-how-trump-his-allies-want-centralize-power-by-focusing-citizenship/?utm_term=.ccf9a827c1f0> on the potential consequences.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, redistricting<https://electionlawblog.org/?cat=6>, Voting Rights Act<https://electionlawblog.org/?cat=15>
Citizenship and the Census: it's all about Obama<https://electionlawblog.org/?p=106245>
Posted on July 13, 2019 12:10 pm<https://electionlawblog.org/?p=106245> by Justin Levitt<https://electionlawblog.org/?author=4>

Fact check<https://www.nytimes.com/2019/07/12/us/politics/census-citizenship-obama.html> on the notion that Obama took a citizenship question off of the census.

Spoiler: nope.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, chicanery<https://electionlawblog.org/?cat=12>
Citizenship and the Census: the test is freaking people out<https://electionlawblog.org/?p=106243>
Posted on July 13, 2019 12:10 pm<https://electionlawblog.org/?p=106243> by Justin Levitt<https://electionlawblog.org/?author=4>

There's a Census Bureau test of the 2020 form<https://www.seattletimes.com/nation-world/nation/bureau-preps-census-with-and-without-citizenship-question/> in the field at the moment, with and without the citizenship question, and it's generating a bit of confusion<https://www.krdo.com/news/scam-or-not-census-test-mailed-out-may-seem-fake-but-it-s-legitimate/1094717205>.
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Posted in census litigation<https://electionlawblog.org/?cat=125>
Citizenship and the Census: representation is not the same as voting<https://electionlawblog.org/?p=106240>
Posted on July 13, 2019 12:09 pm<https://electionlawblog.org/?p=106240> by Justin Levitt<https://electionlawblog.org/?author=4>

As Michael Li explains, on All Things Considered<https://www.npr.org/2019/07/12/741237677/why-the-u-s-counts-people-without-documentation-for-congressional-districts>.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, redistricting<https://electionlawblog.org/?cat=6>, The Voting Wars<https://electionlawblog.org/?cat=60>
Hofeller's files in North Carolina<https://electionlawblog.org/?p=106238>
Posted on July 13, 2019 12:09 pm<https://electionlawblog.org/?p=106238> by Justin Levitt<https://electionlawblog.org/?author=4>

The files from Tom Hofeller that Rick keeps mentioning<https://twitter.com/rickhasen/status/1149436056833368064> in the context of the census case were given to advocates in North Carolina primarily for use in a redistricting case in state court (i.e., not affected by the SCOTUS ruling two weeks ago).  Looks like a court just approved<https://www.washingtonpost.com/national/court-gop-mapmakers-files-allowed-in-gerrymandering-trial/2019/07/12/10c04ce6-a507-11e9-a767-d7ab84aef3e9_story.html> the use of a few dozen of those files as evidence in the case.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, political parties<https://electionlawblog.org/?cat=25>, redistricting<https://electionlawblog.org/?cat=6>
"New Election Systems Use Vulnerable Software"<https://electionlawblog.org/?p=106235>
Posted on July 13, 2019 12:08 pm<https://electionlawblog.org/?p=106235> by Justin Levitt<https://electionlawblog.org/?author=4>

New this morning from the AP<https://apnews.com/e5e070c31f3c497fa9e6875f426ccde1>.  A snippet:

An Associated Press analysis has found that like many counties in Pennsylvania, the vast majority of 10,000 election jurisdictions nationwide use Windows 7 or an older operating system to create ballots, program voting machines, tally votes and report counts.

That's significant because Windows 7 reaches its "end of life" on Jan. 14, meaning Microsoft stops providing technical support and producing "patches" to fix software vulnerabilities, which hackers can exploit. In a statement to the AP, Microsoft said Friday it would offer continued Windows 7 security updates for a fee through 2023.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>
Presidential Caucus Voting by Phone<https://electionlawblog.org/?p=106233>
Posted on July 13, 2019 12:07 pm<https://electionlawblog.org/?p=106233> by Justin Levitt<https://electionlawblog.org/?author=4>

On Monday, Rick linked<https://electionlawblog.org/?p=106111> to an AP piece<https://www.apnews.com/9ae9ce3fee6e42bdb29e601cded80810> on 2020 Democratic caucus voting by phone in Iowa and Nevada.

Steve Rosenfeld has some deeper dives today (Iowa<https://www.salon.com/2019/07/13/iowa-2020-democratic-caucuses-are-one-step-closer-to-vote-by-phone_partner/>, Nevada<https://www.dailykos.com/stories/2019/7/12/1871272/-Nevada-Dems-Announce-Telephone-Voting-in-2020-Caucuses-Despite-DNC-Reservations-by-Steven-Rosenfeld>) on what may be brake-pumping at the DNC.
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Posted in political parties<https://electionlawblog.org/?cat=25>, primaries<https://electionlawblog.org/?cat=32>, voting technology<https://electionlawblog.org/?cat=40>
"Who's Behind Voting-Machine Makers? Money of Unclear Origins"<https://electionlawblog.org/?p=106231>
Posted on July 13, 2019 12:06 pm<https://electionlawblog.org/?p=106231> by Justin Levitt<https://electionlawblog.org/?author=4>

More from the AP<https://www.usnews.com/news/politics/articles/2019-07-12/whos-behind-voting-machine-makers-money-of-unclear-origins>.  The subhead: "North Carolina election officials are learning that private equity firms which don't disclose whose money they're investing hold major stakes in voting-machine makers."
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>
"Prosecutors unlikely to charge Trump Org executives, sources say"<https://electionlawblog.org/?p=106229>
Posted on July 13, 2019 12:05 pm<https://electionlawblog.org/?p=106229> by Justin Levitt<https://electionlawblog.org/?author=4>

Reports from CNN<https://www.cnn.com/2019/07/12/politics/trump-organization-federal-prosecutors/index.html> and The Hill<https://thehill.com/regulation/court-battles/452909-feds-unlikely-to-charge-trump-organization-execs-in-campaign-finance> on potential campaign-finance charges against executives in the Trump Organization.

FWIW, I fully believe that the sources are being accurately quoted, but I'm always pretty skeptical about underlying representations of whether prosecutions are or are not coming down the pike, from people who may have an interest in driving a narrative about whether prosecutions are or are not coming down the pike.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>
Partisan Polarization: It's _Less_ Bad Than We Thought?<https://electionlawblog.org/?p=106227>
Posted on July 13, 2019 12:04 pm<https://electionlawblog.org/?p=106227> by Justin Levitt<https://electionlawblog.org/?author=4>

An intriguing new study<https://www.postandcourier.com/politics/many-sc-voters-still-cross-parties-for-down-ballot-races/article_6bace8c8-98e4-11e9-8843-4bd7e0e22e2a.html> finds substantial split-ticket voting for downballot incumbents.
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Posted in political parties<https://electionlawblog.org/?cat=25>, political polarization<https://electionlawblog.org/?cat=68>
"Annexed Boise Neighborhood Left Out of Voting Rolls For Almost Five Years"<https://electionlawblog.org/?p=106225>
Posted on July 13, 2019 12:03 pm<https://electionlawblog.org/?p=106225> by Justin Levitt<https://electionlawblog.org/?author=4>

Fixed now, but a helpful reminder<http://electionlawblog.org/Blue%20Valley%20Mobile%20Home%20Park,%20a%20community%20of%20about%20900%20people%20in%20Boise%E2%80%99s%20far%20southeast%20corner,%20was%20annexed%20into%20the%20city%20in%202014.%20But%20when%20it%20came%20to%20city%20elections,%20Blue%20Valley%20voters%20were%20disenfranchised.> that cities are organic, not static ... and that it helps to let election offices know as they grow or shrink.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, voting<https://electionlawblog.org/?cat=31>
A fight over certifying referenda for signature-gathering<https://electionlawblog.org/?p=106223>
Posted on July 13, 2019 12:03 pm<https://electionlawblog.org/?p=106223> by Justin Levitt<https://electionlawblog.org/?author=4>

When partisan officials control the process for certifying summaries and titles for initiatives and referenda heading onto the ballot, there will be controversy along the way.  This story<https://www.washingtonpost.com/national/aclu-timing-threatens-public-vote-on-missouri-abortion-law/2019/07/12/945b7468-a4e4-11e9-a767-d7ab84aef3e9_story.html> is about alleged foot-dragging on beginning the petitioning process to validate a Missouri referendum on a new abortion law.
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Posted in ballot access<https://electionlawblog.org/?cat=46>, petition signature gathering<https://electionlawblog.org/?cat=39>, referendum<https://electionlawblog.org/?cat=56>
"Libertarian, Green parties sue Texas over ballot requirements"<https://electionlawblog.org/?p=106221>
Posted on July 13, 2019 12:02 pm<https://electionlawblog.org/?p=106221> by Justin Levitt<https://electionlawblog.org/?author=4>

>From the Houston Chronicle<https://www.houstonchronicle.com/news/politics/texas/article/Libertarian-Green-parties-sue-Texas-over-ballot-14089965.php>.
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Posted in ballot access<https://electionlawblog.org/?cat=46>, political parties<https://electionlawblog.org/?cat=25>
New Yorker on the Hofeller Files and More: "A Father, A Daughter, and the Attempt to Change the Census"<https://electionlawblog.org/?p=106219>
Posted on July 12, 2019 3:34 pm<https://electionlawblog.org/?p=106219> by Rick Hasen<https://electionlawblog.org/?author=3>

Fascinating read.<https://www.newyorker.com/news/news-desk/a-father-a-daughter-and-the-attempt-to-change-the-census?mbid=social_twitter&utm_medium=social&utm_social-type=owned&utm_source=twitter&utm_brand=tny>
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Posted in census litigation<https://electionlawblog.org/?cat=125>, chicanery<https://electionlawblog.org/?cat=12>, redistricting<https://electionlawblog.org/?cat=6>
"Pillar of Law Wins Important Free Speech Victory in Voter List Access Case"<https://electionlawblog.org/?p=106217>
Posted on July 12, 2019 1:24 pm<https://electionlawblog.org/?p=106217> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://pillaroflaw.org/2019/07/12/pillar-of-law-wins-important-free-speech-victory-in-voter-list-access-case/>:

A panel of the United States Court of Appeals for the Fourth Circuit unanimously reversed dismissal of the case Fusaro v. Davitt today<https://pillaroflaw.org/wp-content/uploads/2019/07/Fusaro4thCirRuling.pdf>, restoring a challenge to a Maryland law that restricts access to the state's registered voter list to Maryland registered voters. Writing for the panel, Chief Judge Roger Gregory ruled that access to the list implicates First Amendment rights.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Trump's Executive Order on the Census<https://electionlawblog.org/?p=106208>
Posted on July 12, 2019 10:59 am<https://electionlawblog.org/?p=106208> by Justin Levitt<https://electionlawblog.org/?author=4>

Hi. Please don't consider this a preview for the coming week: most of the posts will be a lot shorter. I promise.

Until yesterday, the official government reason for getting citizenship information in connection with the decennial census was the Voting Rights Act. The Supreme Court affirmed that that was a liepretext. Yesterday's Executive Order<https://big.assets.huffingtonpost.com/athena/files/2019/07/12/5d27ec0ce4b02a5a5d586403.pdf> laid out a few more ostensible reasons for getting citizenship information in connection with the census. A few people have asked or wondered aloud why Commerce didn't just offer the reasons now laid out in the EO, when they were hunting for a pretext before the March 2018 decision.

If the Administration's real goal was to put a citizenship question on the decennial enumeration (I offer some thoughts here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3250265> on why that might have been so), and only as a secondary matter to come up with a reason to justify that goal, there's a answer to the question that doesn't depend on incompetence. The EO rationales are only surface-level plausible.  Either they don't actually explain the need for putting the question on the enumeration, or they don't fit the pre-existing OMB preference for uses reflecting strong federal enforcement needs. Or both.

I have no insight into Commerce's actual decision-making process, beyond what's been revealed in litigation.  And so what follows represents the attempt to reverse-engineer a rational search for a purpose to put forward.  YMMV for whether you think this resembles any plausible consideration in the decision making process that actually went on, in whole or in part.
1.       Despite the assertions in yesterday's press conference<https://www.whitehouse.gov/briefings-statements/remarks-president-trump-citizenship-census/>, the Secretary's March 2018 decision was not a decision for the Census Bureau to start collecting information on citizenship rates from the public.  The census's American Community Survey already collects citizenship information from the public on a rolling (and hence regularly updated) and fairly detailed basis (including data like country of birth and year of entry).

Instead, the March 2018 decision was a decision to collect information on citizenship (alone) from the public on the decennial household-to-household 100% enumeration form.

That sort of collection risks fomenting inaccuracy (inaccuracy quantified by Census Bureau experts in what they explicitly designated as an exceptionally conservative estimate<https://poseidon01.ssrn.com/delivery.php?ID=956118003098125000119093088104075091003071050014044044030086067074101081110095101002098056127048117058030005097111069011088092038078036073051123086010088006122120070040087099066125080114118001105028083074099086080116029094029003004090113066086092088&EXT=pdf#page=13>, and undersold<https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf#page=23> by SCOTUS as a predictive figure, without that same caveat).  The size of the inaccuracy was disputed, but not the fact of the inaccuracy.  So the decision to forge ahead despite that inaccuracy required at least some articulable benefit from asking for the information on the enumeration, over and above either administrative records or surveys.  The ostensible benefit Commerce settled on was the illusion of block-by-block precision purportedly needed for Section 2.

Beyond redistricting, none of the other uses in the Executive Order<https://big.assets.huffingtonpost.com/athena/files/2019/07/12/5d27ec0ce4b02a5a5d586403.pdf> (overall national immigration policy, overall national benefits expenditures, various broad legislative purposes concerning the undocumented population) seem to offer a plausible meaningful incremental benefit (over surveys or administrative records) for household-by-household collection of the one incremental citizenship question sufficient to justify the lapse in accuracy.  That is, the other uses beyond redistricting in the EO are pitched at state or national estimates (where the ACS margins of error are really quite small) rather than block-level estimates, and often require information about year of entry, country of origin, or immigration status that the single citizenship question wasn't designed to get.

Or more simply still: except for redistricting, these other applications might explain why the Administration would want ACS data it's already got.  But they don't really purport to explain why they'd need one extra household-by-household question on citizenship.  The VRA pretext offers an excuse for block-level data on citizenship (without the extra questions on year of entry or status or the like).
2.       I don't know offhand the process for reviewing content on the household-to-household enumeration, but there's a rather detailed OMB-fostered process for reviewing content on the ACS<https://www2.census.gov/programs-surveys/acs/operations_admin/2014_content_review/methods_results_report/2014_ACS_Content_Review_Final_Documentation.pdf>.  It privileges information to be used by federal agencies, and particularly privileges with the following priority: 1) data explicitly required by statute to be gleaned from the census, 2) data required by statute or case law and naturally derived from the census, and only thereafter 3) data useful for programmatic planning.  Data without mandatory or required uses by federal agencies, and only programmatic uses at geographic levels larger than counties, were lowest priority, and essentially flagged for likely deletion from the ACS.  And would have been tricky to sell as prime candidates for elevation to the household-to-household enumeration.

This means that in the existing OMB procedure, the gold standard (at least for ACS content) was information needed by a federal agency in small levels of geography in order to perform a function specifically required by statute or caselaw.  (I'm assuming that the process for enumeration content - to the extent there was a process - was at least as restrictive.)  "The statutes/courts make me do it" is the best reason to collect information.

That explains why Commerce first went shopping to federal agencies - DOJ, DHS, DOJ again - for some requested justification, rather than just saying "hey, we're adding the question because this stuff might be useful for someone."  The VRA pretext met that threshold of caselaw requirement for data in small levels of geography needed for federal agency enforcement.

None of the other uses in the EO do the same thing.  The first few have to do with changing laws and appropriations and broad national policies, but not enforcing existing statutes at the local level.  These rationales in the EO seem pitched primarily at helping Congress pass better laws.  But if Congress needs information to inform its policymaking, Congress can add whatever information it wishes to whichever Census instruments it wishes (which may well be why, in the absence of more specific legislation, the OMB process privileges data to assist executive functions).   And the redistricting rationale in the EO isn't a federal agency rationale either - it's entirely dependent on the cited interest of "some State officials."

I'm not suggesting that there aren't other hypothetical pretexts that would both 1) fit the preference for data required for federal agencies to do their existing jobs and 2) make the case for a single question on citizenship collected at the block level, yielding information ostensibly more suitable than the stuff already collected on the ACS.  But in that respect, the VRA nonsense did deliver a two-fer.  (To be clear, the VRA pretext doesn't really hold up on the merits either<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fpapers.ssrn.com%2fsol3%2fpapers.cfm%3fabstract_id%3d3250265&c=E,1,PgvzIv4WldLqnB0xpE148V9u7CHG__N_DCiswvY3VSM4nGV_QTbgjoAwfm0o1TbqwXmwz39qQvLKOoYkxM1s7jZA9iHSs05X6iOBbtoaxQmj3F-p25ti&typo=1>.  But on these two axes, it might hold up a bit better than the EO alternatives.)
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Posted in census litigation<https://electionlawblog.org/?cat=125>, chicanery<https://electionlawblog.org/?cat=12>
"FEC Gets New Internal Watchdog Following Tumultuous Search"<https://electionlawblog.org/?p=106212>
Posted on July 12, 2019 10:49 am<https://electionlawblog.org/?p=106212> by Rick Hasen<https://electionlawblog.org/?author=3>

CPI<https://publicintegrity.org/federal-politics/fec-gets-new-internal-watchdog-following-tumultuous-search/> reports.
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Posted in federal election commission<https://electionlawblog.org/?cat=24>
"Here's (more) evidence Bill Nelson suffered from bad ballot design in 2018"<https://electionlawblog.org/?p=106210>
Posted on July 12, 2019 10:47 am<https://electionlawblog.org/?p=106210> by Rick Hasen<https://electionlawblog.org/?author=3>

Tampa Bay Times<https://www.tampabay.com/florida-politics/buzz/2019/07/12/heres-more-evidence-bill-nelson-suffered-from-bad-ballot-design-in-2018/>:

It was immediately clear<https://www.tampabay.com/florida-politics/buzz/2018/11/08/broward-county-could-decide-floridas-u-s-senate-race/> after the Nov. 6 election that far more voters than expected were leaving the Senate box blank. Many of those voters supported other Democrats, like the losing candidate for Governor, Andrew Gillum.
In a new academic paper presented Thursday at the Election Sciences, Reform, & Administration Conference<http://web.sas.upenn.edu/esra2019/conference-schedule/>, two researchers looked beyond vote totals, drilling down to the individual ballot level.
What they found was this: In Broward County, voters who skipped the Senate race likely did so by accident, rather than purposely avoiding the race....'The academic paper's authors, Marc Meredith at the University of Pennsylvania and Michael Morse at Harvard University, looked at individual "undervoters" - people who voted, but not for senator.
According to the research<https://medium.com/mit-election-lab/learning-about-undervotes-from-ballot-level-data-b1c9e8c87dc7>, "about 33 percent of Senate undervoters in other counties also voted for a third-party or undervoted in the gubernatorial race, consistent with a pattern of more intentional undervoting."
But that wasn't the case in Broward. There, "only about 7 percent of Broward voters who undervoted in the Senate race also voted for a third-party or undervoted again in the gubernatorial race." That indicates they skipped the race unintentionally.

But there's no definitive evidence that the quirk mattered enough to flip the race.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
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.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106205&title=If%20Trump%E2%80%99s%20Executive%20Order%20Ends%20Up%20Creating%20Better%20Citizenship%20Data%2C%20Could%20It%20Be%20Used%20by%20States%20to%20Draw%20CONGRESSIONAL%20Districts%20with%20Equal%20Numbers%20of%20Voter%20Eligible%20Persons%20(and%20Not%20Total%20Population)%3F%20Would%20It%20Allow%20for%20Use%20in%20State%20and%20Local%20Districts%3F>
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."
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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.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106186&title=Breaking%3A%20Washington%20State%20Supreme%20Court%20Unanimously%20Rejects%20First%20Amendment%20Challenge%20to%20Seattle%E2%80%99s%20Campaign%20Finance%20Voucher%20Program>
Posted in campaign finance<https://electionlawblog.org/?cat=10>

Justin Levitt   (he/him/his)
Associate Dean for Research
Professor of Law / Gerald T. McLaughlin Fellow

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Burns 335
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Research on SSRN<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=698321>
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Email
justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>

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