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

Thu Jun 27 10:45:04 PDT 2019

It seems to me that the Court recognized the constitutionality of at least
some degree of political gerrymandering. This may not be a holding, but the
Court does say that "a jurisdiction may engage in constitutional political
gerrymandering."

>From page 12 of the slip opinion:

"Partisan gerrymandering claims have proved far more
difficult to adjudicate. The basic reason is that, while it is
illegal for a jurisdiction to depart from the one-person,
one-vote rule, or to engage in racial discrimination in
districting, 'a jurisdiction may engage in constitutional
political gerrymandering.' Hunt v. Cromartie, 526 U. S.
541, 551 (1999) (citing Bush v. Vera, 517 U. S. 952, 968
(1996); Shaw v. Hunt, 517 U. S. 899, 905 (1996) (Shaw II );
Miller v. Johnson, 515 U. S. 900, 916 (1995); Shaw I, 509
U. S., at 646). See also Gaffney v. Cummings, 412 U. S.
735, 753 (1973) (recognizing that '[p]olitics and political
considerations are inseparable from districting and
apportionment')."

Legislators must refuse to engage in actions that they, in their own
judgment, believe would violate the Constitution, whether or not a court
would or could make that determination. Their oath of office requires no
less. So this recognition by the Court that at least some degree of
political gerrymandering is constitutional is not determinative of whether
a legislator should refuse on constitutional grounds to engage in it. The
Court's statement does provide a basis for a legislator to conclude in good
faith that he or she does not violate the oath of office by engaging in
political gerrymandering.

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law

On Thu, Jun 27, 2019 at 9:56 AM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> 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
>>>
>>> [image: signature_1703242246]
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>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
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