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

Thu Jun 27 10:13:35 PDT 2019

I recall a recent DOJ filing suggested that post-Evenwell interest in
redistricting may have been involved in the decision. The Secretary could
say that states post-Evenwell expressed an interest in changing their laws
to permit citizen-based redistricting, and in order to consider that
option, they'd like citizen-level data. I don't know that you would need
existing legislation.
---------------------------------------------------------------------------
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 12:09 PM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> 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>
>>> >>
>>> >> _______________________________________________
>>> >> Law-election mailing list
>>> >> Law-election at department-lists.uci.edu
>>> >> https://department-lists.uci.edu/mailman/listinfo/law-election
>>> >
>>> > _______________________________________________
>>> > Law-election mailing list
>>> > Law-election at department-lists.uci.edu
>>> > https://department-lists.uci.edu/mailman/listinfo/law-election
>>> >
>>> > _______________________________________________
>>> > Law-election mailing list
>>> > Law-election at department-lists.uci.edu
>>> > https://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>>
>>>
>>> --
>>> Dr. Carl Klarner
>>> Klarnerpolitics.org
>>> Former Associate Professor of Political Science
>>> Academic & Consultant
>>> Carl.Klarner at gmail.com
>>> Cell: 812-514-9060
>>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> https://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190627/91d58ae5/attachment.html>