[EL] The Census Decision and the MD case

Fri Jun 28 09:43:37 PDT 2019

The DJ in MD has reportedly taken one initial step in response to the Supreme Court decision, as reported here<https://electionlawblog.org/?p=105829>.  There is some ambiguity to me about exactly what he’s done, so I would break down my analysis into these points – point 5 is probably the most interesting of these:

1.       The DJ has suspended discovery at least until the administration determines whether it wants to add the citizenship question based on a new justification.  In my view, as expressed yesterday, that suspension of discovery is correct.

2.      It is unclear to me whether the DJ is requiring the administration to report on Monday where it is in the process of resolving the question of whether to add the citizenship question or whether the DJ is ordering the government to announce a final decision by Monday.

3.      But if it’s the latter, I do not think the DJ has the power to order the government to make a final decision by Monday.  A final decision or what?  Put another way, if the government comes back on Monday and says we need more time to deliberate about this, engage in more inter-agency consultation etc., I do not know what the DJ would have the lawful authority to do.  The government will not “lost” whatever power it has to add the question if it doesn’t give the DJ an answer by Monday.  The DJ seems to hanging the sword of opening discovery on the initial citizenship question if there is no final decision by Monday.  That’s the “sanction” he seems to have in mind if the government were to say we haven’t resolved the issue.  But I do not think the DJ would be acting within his lawful authority to do that – if the administration has not decided to re-commit to the citizenship question, there is still no basis for ordering discovery on the prior action.

4.      If the government does announce on Monday that it will indeed be recommitting to the citizenship question, then it would be proper to let discovery go forward on the initial question.  Surely the complete context for the adoption of the new question would be relevant.

5.      For the plaintiffs challenging the citizenship question, I think the DJ’s order is actually – from a strategic or litigation perspective – counterproductive.  If the administration is going to recommit to the citizenship question, it’s going to want to present itself as having gone through a careful deliberative process, resulting in a thorough written analysis and justification.  That puts the administration in a bind:  the longer it takes to go through such a process, the more it bumps against the deadline for printing the Census forms.  If the DJ is indeed insisting that the government make a final decision by Monday, that gives the government an excuse and a justification for a more rushed decisional process – which could well make the higher-level courts, particularly the Supreme Court, more sympathetic to a more truncated process.  In other words, the government might be happy to have a justification for having had to make this decision so quickly.  And those inside the government pushing for a quicker decision will be able to use this court-imposed deadline as a cudgel against those who are urging more time for the process.

6.      Again, I am not clear what exactly the DJ did or did not “order” the government to do on Monday.

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Sq. So.
NYC, NY 10012
212 998-6377

From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Nicholas Stephanopoulos
Sent: Friday, June 28, 2019 11:44 AM
To: Levitt, Justin <justin.levitt at lls.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] symmetry really got short shrift in Rucho

He clearly understood; see all his passages in Whitford last year discussing symmetry. But that was a concept in which Kennedy was interested, not Roberts. So with Kennedy off the Court, Roberts could just return to calling everything proportionality if it involved seats and votes (much like Scalia did in Vieth).

---------------------

Relevant to this case, an amicus brief in support of the LULAC plaintiffs proposed a “symmetry standard” to “measure partisan bias” by comparing how the two major political parties “would fare hypothetically if they each . . . received a given percentage of the vote.” 548 U. S., at 419 (opinion of KENNEDY, J.). JUSTICE KENNEDY noted some wariness at the prospect of “adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.” Id., at 420. Aside from that problem, he wrote,the partisan bias standard shed no light on “how much partisan dominance is too much.” Ibid. JUSTICE KENNEDY therefore concluded that “asymmetry alone is not a reliable measure of unconstitutional partisanship.” Ibid.

Justice Stevens would have found that the Texas map was a partisan gerrymander based in part on the asymmetric advantage it conferred on Republicans in converting votes to seats. Id., at 466–467, 471–473 (opinion concurring in part and dissenting in part). Justice Souter, writing for himself and JUSTICE GINSBURG, noted that he would not “rule out the utility of a criterion of symmetry,” and that “further attention could be devoted to the administrability of such a criterion at all levels of redistricting and its review.” Id., at 483–484 (opinion concurring in part and dissenting in part).

Third, the plaintiffs offered evidence concerning the impact that Act 43 had in skewing Wisconsin’s statewide political map in favor of Republicans. This evidence, which made up the heart of the plaintiffs’ case, was derived from partisan-asymmetry studies similar to those discussed in LULAC. The plaintiffs contend that these studies measure deviations from “partisan symmetry,” which they describe as the “social scientific tenet that [districting] maps should treat parties symmetrically.” Brief for Appellees 37.

We need not doubt the plaintiffs’ math. The difficulty for standing purposes is that these calculations are an average measure. They do not address the effect that a gerrymander has on the votes of particular citizens. Partisan-asymmetry metrics such as the efficiency gap measure something else en- tirely: the effect that a gerrymander has on the fortunes of political parties.

On Thu, Jun 27, 2019 at 11:50 PM Levitt, Justin <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>> wrote:
A vote for willful misrepresentation.  Claiming “the Constitution doesn’t require proportionality” is a handy strawman.

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Rick Hasen
Sent: Thursday, June 27, 2019 9:46 PM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] symmetry really got short shrift in Rucho

It is like a reprise of the Gill oral argument and sociological gobbledygook: does the Chief Justice not understand the difference between proportional representation arguments and symmetry arguments, or did he just willfully misrepresent the position of many of the plaintiffs? They couldn’t have made it clearer.

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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--
Nicholas O. Stephanopoulos
Professor of Law
Herbert and Marjorie Fried Research Scholar
University of Chicago Law School
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