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

Thu Jun 27 10:09:38 PDT 2019

Is that permitted under any state laws today (i.e., before 2020)?  (I
genuinely don't know.)

On Thu, Jun 27, 2019 at 1:02 PM Josh Blackman <joshblackman at gmail.com>
wrote:

> The Secretary could say:
>
> States have asked us to provide citizen data to allow them to redistrict
> based on citizenship, rather than total population. We added the question
> to assist the states.
>
> Would Roberts reject that theory?
> ---------------------------------------------------------------------------
> 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 11:58 AM Carl Klarner <carl.klarner at gmail.com>
> wrote:
>
>> Is anyone aware of public opinion surveys pertaining to the issue of
>> whether the public thinks non-citizens should be excluded from
>> population counts for the purposes of redistricting?  (I say this
>> aware of the difficulty of gauging the public's attitudes about things
>> that they don't think about often.)
>>
>> If the argument was framed as "we, the Republicans, are at an unfair
>> disadvantage because non-citizens are counted in redistricting counts,
>> and it's unfair to citizens to count them, and we need to count how
>> many people are non-citizens to get rid of this unfair advantage, and
>> yes, that would cause some complications with the under-count in the
>> census, but not much after corrections," the public (or swing voters,
>> for that matter, all of whom are citizens) may not react negatively.
>>
>>
>> On Thu, Jun 27, 2019 at 12:50 PM Ilya Shapiro <IShapiro at cato.org> wrote:
>> >
>> > In other words, given the broad discretion given by the operative
>> statute, a “bad” reason is ok (or nonjusticiable) even if a “fake” one is
>> not. I could see that getting five votes—if there’s time to get back before
>> the Court.
>> >
>> > Ilya Shapiro
>> > Director
>> > Robert A. Levy Center for Constitutional Studies
>> > Cato Institute
>> > 1000 Mass. Ave. NW
>> > Washington, DC 20001
>> > (o) 202-218-4600
>> > (c) 202-577-1134
>> > Twitter: @ishapiro
>> >
>> > http://www.cato.org/people/shapiro.html
>> >
>> >
>> > On 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
>> > Unraveled: Obamacare, Religious Liberty, & Executive Power
>> >
>> >
>> > 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”
>> >>
>> >> Posted on June 27, 2019 9:37 am by Rick Hasen
>> >>
>> >> I have posted this piece 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 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 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.)
>> >>
>> >>
>> >> 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 case,
>> may give them yet another tool to solidify their grasp on power despite
>> demographic forces moving against them.
>> >>
>> >> <image001.png>
>> >>
>> >> Posted in Uncategorized
>> >>
>> >>
>> >>
>> >>
>> >>
>> >> --
>> >>
>> >> 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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>>
>>
>> --
>> Dr. Carl Klarner
>> Klarnerpolitics.org
>> Former Associate Professor of Political Science
>> Academic & Consultant
>> Carl.Klarner at gmail.com
>> Cell: 812-514-9060
>>
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