[EL] “How John Roberts Might Allow Trump to Resurrect the Census Question”

Thu Jun 27 09:55:00 PDT 2019

Did the Court hold in Rucho that it's *constitutional *for officials to
draw districts for partisan gain (as opposed to simply that it's
nonjusticiable)?  I don't think so.  And I doubt even the Trump
Administration would publicly assert hat partisan advantage is a factor the
statute allows (or could constitutionally allow) Ross to consider--or that
DOJ would argue that it is.  Naive?

On Thu, Jun 27, 2019 at 12:44 PM Josh Blackman <joshblackman at gmail.com>
wrote:

> Rick,
>
> Roberts's most important statement is the fact that Ross made up his mind
> at the outset is not dispositive. In other words, that fact does not
> "forever taint" the action. It could be cured by additional justifications.
> Perhaps, as you note, that additional justification could be for political
> gain. It would be a brazen argument, but could work.
>
> I summarize the thought here:
>
> https://twitter.com/JoshMBlackman/status/1144283664991301632
> ---------------------------------------------------------------------------
> Josh Blackman
> http://JoshBlackman.com
> *Unprecedented: The Constitutional Challenge to Obamacare
> <http://www.amazon.com/gp/product/1610393287/ref=as_li_tf_tl?ie=UTF8&camp=1789&creative=9325&creativeASIN=1610393287&linkCode=as2&tag=joshblaccom-20>*
> *Unraveled: Obamacare, Religious Liberty, & Executive Power*
> <http://amzn.to/2aqbDwy>
>
>
> On Thu, Jun 27, 2019 at 11:39 AM Rick Hasen <rhasen at law.uci.edu> wrote:
>
>> “How John Roberts Might Allow Trump to Resurrect the Census Question”
>> <https://electionlawblog.org/?p=105807>
>>
>> Posted on June 27, 2019 9:37 am <https://electionlawblog.org/?p=105807>
>> by *Rick Hasen* <https://electionlawblog.org/?author=3>
>>
>> I have posted this piece
>> <https://slate.com/news-and-politics/2019/06/john-roberts-trump-census-question-supreme-court-october.html> at
>> Slate. It begins:
>>
>> *Despite a favorable ruling for opponents of the census citizenship
>> question on Thursday, the Supreme Court did not definitively decide to
>> exclude citizenship question from the 2020 census. Indeed, I expect that
>> the Trump administration’s Commerce Department and Department of Justice
>> could well be back before the Supreme Court’s next term begins in October
>> arguing for the question’s inclusion, and they could well win and include
>> the question.*
>>
>> It concludes:
>>
>>
>> *The majority opinion and the separate conservative opinions, however,
>> have given the agency plenty of non-pretextual things to say about why it
>> would want to include the citizenship question. Administrative law
>> professor Jennifer Nou even ponders
>> <https://twitter.com/Jennifer_Nou/status/1144259250899816448> that they
>> could argue they were doing it for partisan reasons, following the decision
>> in Thursday’s partisan gerrymandering case giving such conduct the green
>> light. But whatever the reason, the agency will likely act quickly to
>> rehabilitate its pretexual ruling. The agency has said that printing had to
>> begin in July, but plaintiffs challenging inclusion of the question have
>> long claimed the real deadline is October. The government will surely
>> concede now that October is doable. The agency could come back with new
>> reasons, and the part of Roberts’ opinion joined by the conservatives which
>> recognizes the broad agency discretion to include the question for
>> non-pretextual reasons will be front and center.*
>>
>>
>>
>>
>> * If the agency moves to include the question again, the case will be
>> back before the Supreme Court. It would likely be joined by the other case
>> coming out of the Fourth Circuit arguing that the inclusion of the question
>> violated the Equal Protection Clause because it was based on a racially
>> discriminatory purpose. The court did not address the equal protection
>> holding Thursday, despite the outrageous urging
>> <https://slate.com/news-and-politics/2019/06/census-case-john-roberts-bush-v-gore-tragedy.html> of
>> the Solicitor General for the Court do to so without briefing. Assuming the
>> Commerce Department moves forward with trying to include the question on
>> the 2020 census, the Fourth Circuit could well keep this case alive to
>> create a record of the racial motivations for inclusion of the original
>> question. On this question, I expect that any new agency decision to
>> include the citizenship question would be found by the court’s
>> conservatives to have cleansed the decision of any racial animus. (The
>> court made just such a finding last year in a Voting Rights Act
>> redistricting case from Texas, Abbott v. Perez
>> <https://www.supremecourt.gov/opinions/17pdf/17-586_o7kq.pdf>.)*
>>
>>
>> * So we may see a rare September argument where these issues will be back
>> before the Supreme Court, and John Roberts, who gave the Republicans a
>> green light to gerrymander to their hearts content in today’s Rucho
>> <https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf> case, may
>> give them yet another tool to solidify their grasp on power despite
>> demographic forces moving against them.*
>>
>> [image: Share]
>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105807&title=%E2%80%9CHow%20John%20Roberts%20Might%20Allow%20Trump%20to%20Resurrect%20the%20Census%20Question%E2%80%9D>
>>
>> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>>
>>
>>
>>
>>
>> --
>>
>> 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
>>
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