[EL] Link to actual blockbuster revelation census-question documents, and some comments -- Re: census bombshell; more news

[Mark Scarberry]

The first link contained on this page will take you to the documents:

https://www.commoncause.org/press-release/new-evidence-from-common-cause-partisan-gerrymandering-case-reveals-plot-to-add-citizenship-question-to-2020-census-for-republican-and-white-redistricting-advantage/

I think the new documents (the documents themselves as opposed to analyses
of them or previously disclosed deposition transcripts) are exhibits C, D,
and G. Someone can correct me if I'm wrong.

Rick says in his Slate piece that:

"Those newly reveal[ed] documents show that the Trump administration’s
purpose in putting the citizenship question on the upcoming census was not
its stated one to help Hispanic voters under the Voting Rights Act, but
rather to create policy that would be 'a disadvantage to the Democrats' and
'advantageous to Republicans and non-Hispanic Whites.' It’s difficult to
produce a greater smoking gun than explicitly saying you are hoping to help
the GOP by increasing white voting power."

On a quick read, it seems fair to say that the administration had been told
that effects of adding the citizenship question would include the effects
described by Rick. The documents may also show (as was suggested prior to
release of these documents) that the purpose (or the main purpose) of the
administration's request was to obtain political advantage. (That doesn't
seem to be in serious question; does anyone disagree?)

One question is whether the political advantage was designed to be gained
by discouraging Hispanic voters from answering the census -- and thereby to
reduce the count of persons/citizens in largely Hispanic communities. If
the documents support an affirmative answer to that question, then they are
truly blockbuster documents. If so, can anyone give us a citation to the
relevant portions of the documents? Is this the key objection to inclusion
of the question so that the documents are only blockbuster documents if
they support such a conclusion?

It seems fairly obvious that use of number of citizens rather than
residents for reapportionment would benefit Republicans. In part this will
be true because many non-citizen residents are Hispanic, and because there
is a correlation between ethnicity and voting. Is that sufficient to render
improper a count of citizens rather than residents?

Or perhaps data derived from current census questions would allow an
estimation of the number of citizens in a particular district, so that the
new question would not be needed for purposes of an attempted
reapportionment by citizen population. Is estimation sufficient for
reapportionment purposes, or is an actual count required?

One question may be whether a false or incomplete statement of reasons for
including a census question is sufficient to justify exclusion of the
question. Maybe that's an administrative law question. Or maybe it
justifies a presumption of some sort that racial discrimination was
intended.

It may be obvious -- to list members who know more about this than I do --
that my questions are off-the-mark (so to speak). Or that there are easy
answers.

It does seem to me that a claim that documents are blockbuster revelations
that should lead to an easy and clear result need to be backed up by
specifics.

Mark

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


On Thu, May 30, 2019 at 9:12 AM Rick Hasen <rhasen at law.uci.edu> wrote:

> “New Memo Reveals the Census Question Was Added to Boost White Voting
> Power; Why it won’t matter to the Supreme Court’s conservatives.”
> <https://electionlawblog.org/?p=105357>
>
> Posted on May 30, 2019 9:07 am <https://electionlawblog.org/?p=105357> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> I have written this piece
> <https://slate.com/news-and-politics/2019/05/census-memo-supreme-court-conservatives-white-voters-alito.html> for
> Slate. It begins:
>
> *If we had a fair Supreme Court not driven by partisanship in its most
> political cases, Thursday’s blockbuster revelation
> <https://www.nytimes.com/2019/05/30/us/census-citizenship-question-hofeller.html?action=click&module=Top%20Stories&pgtype=Homepage> in
> the census case would lead the court to unanimously rule in Department of
> Commerce v. New York
> <https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-966.html> to
> exclude the controversial citizenship question from the decennial survey.
> Those newly reveal documents show that the Trump administration’s purpose
> in putting the citizenship question on the upcoming census was not its
> stated one to help Hispanic voters under the Voting Rights Act, but rather
> to create policy that would be “a disadvantage to the Democrats” and
> “advantageous to Republicans and non-Hispanic Whites.” It’s difficult to
> produce a greater smoking gun than explicitly saying you are hoping to help
> the GOP by increasing white voting power. But this revelation, coming from
> the hard drive of a deceased Republican political operative and made
> available to Common Cause by his estranged daughter, is ironically more
> likely to lead the Republican-appointed conservative justices on the
> Supreme Court to allow the administration to include the question that
> would help states dilute the power of Hispanic voters.*
>
> It concludes:
>
> *The question whether it is permissible to draw districts in the way
> Hofeller wanted is an open one. Ed Blum
> <https://www.aclu.org/blog/racial-justice/affirmative-action/meet-edward-blum-man-who-wants-kill-affirmative-action-higher> brought
> a 2016 case, Evenwel v. Abbott
> <https://scholar.google.com/scholar_case?case=1873699076724766700&hl=en&as_sdt=6&as_vis=1&oi=scholarr>,
> in which the court unanimously rejected Blum’s argument that the state of
> Texas was constitutionally required to draw districts with equal numbers of
> eligible voters. But the majority opinion by Justice Ruth Bader Ginsburg
> did not go further and reach the question whether drawing districts in this
> way—which would exclude not just noncitizens but also children and felons
> from the count—violates the Constitution’s equal protection clause.
> “Because history, precedent, and practice suffice to reveal the infirmity
> of appellants’ claims, we need not and do not resolve whether, as Texas now
> argues, States may draw districts to equalize voter-eligible population
> rather than total population,” Ginsburg concluded.*
>
>
> * Justices Clarence Thomas and Samuel Alito, however, wrote concurrences
> affirming their belief that states have the right to draw districts in this
> way. There is good reason to believe that the other conservative justices
> would come along should they have to decide the issue.*
>
>
>
>
> * The newly revealed census documents may now give them the opportunity to
> do just that. All of that means that the Supreme Court will likely go along
> with Ross’ true purpose in including the citizenship question on the
> census: to allow states to draw districts with equal numbers of
> voter-eligible persons rather than total persons. The smoking-gun evidence
> showing that government officials lied in offering the Voting Rights Act
> excuse for including the question likely will be seen by these justices as
> irrelevant if the real reason is a permissible one.*
>
>
> * This is not how the census case should be decided. The government should
> have to offer its real reasons for taking government actions and defend its
> actions on those terms. And even if it is otherwise constitutionally
> permissible to experiment with different understandings of how to draw
> districts with equal populations under the equal protection clause, the
> government should not be able to do so if the purpose is to dilute the
> power of political adversaries and minority voters, as demonstrated in this
> case by the new revelations.*
>
>
> * Thursday’s revelations should be damning. The ACLU is already seeking
> sanctions <https://www.aclu.org/legal-document/census-sanctions-motion> in
> the trial court in the census case for government officials lying about the
> real reason for including the citizenship question. But instead the
> revelations may help to prop up a case that should embarrass government
> lawyers to argue.*
>
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