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

[Mark Scarberry]

No, I am absolutely not suggesting that the inclusion of the question is permissible if it was motivated by  racial discrimination. Partisan motivation is a different matter. I can't respond at more length now but will do so later.

Mark

Prof. Mark S. Scarberry
Pepperdine University School of Law
________________________________
From: Jon Sherman <jsherman at fairelectionscenter.org>
Sent: Thursday, May 30, 2019 3:00 PM
To: Mark Scarberry
Cc: Election Law Listserv
Subject: Re: [EL] Link to actual blockbuster revelation census-question documents, and some comments -- Re: census bombshell; more news

APA and Enumeration Clause questions are before SCOTUS now, but this bombshell is even more helpful to the consolidated Maryland cases which have 5th Amendment discrimination and Section 1985 claims. The district court has issued a ruling, rejecting those claims, and DOJ has filed a Notice of Appeal: https://www.brennancenter.org/legal-work/kravitz-v-united-states-dept-commerce. I'm sure those litigants wish this info had come to light a bit sooner, but someone at some point soon is bringing a 5th Amendment claim based on this evidence to the Supreme Court. That seems inevitable, though not sure in what posture or in which case.

To that end, are you suggesting that if racial or partisan discrimination motivated the citizenship question for the further purpose of changing the baseline for apportionment, but not (at least not as expressly stated or as documented by the evidence) for the purpose of deterring and suppressing Latino participation in the Census, then that's not a violation of the Fifth Amendment's guarantee of equal protection? You may have just been talking about the current APA claims, but if you were suggesting something about the pending 5th Amendment claims in other cases, I'd ask why that is. Seems to me if plaintiffs can establish that racial discrimination was a substantial motivating factor behind the citizenship question, then that's the end of the story. Even if no disparate impact is shown, even if there are other race-neutral, constitutional motivating factors, and even if the intended use of the citizenship question is for something other than what plaintiffs have proffered (to date) as their theory of why the citizenship question was included. I.e. even if the particular way in which this citizenship question were intended to dilute the minority/Democratic vote were other than through the means plaintiffs have (to date) identified (deterring and suppressing participation), it's still motivated by racial and partisan discrimination and therefore unconstitutional, no? This assumes a trier of fact resolves the disputed factual issues in plaintiffs' favor, so I'm just considering the legal standard here. [Caveat: I haven't followed these cases closely, and I'm mostly writing here out of piqued interest. Here to learn.]


On Thu, May 30, 2019 at 2:43 PM Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>> wrote:
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<mailto: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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