//  6/5/19  //  Quick Reactions

The recent revelation that a long-time Republican redistricting specialist played a hand in the Trump administration’s addition of the citizenship question to the 2020 census has clear implications for Department of Commerce v. New York, the Supreme Court case challenging the addition of the citizenship question. (It’s not clear what legal implications the evidence has given that the Court is likely to confine its review to the administrative record, but it’s clear how the evidence is relevant in a colloquial sense.)

But the plaintiff’s letter in the census case also has implications for another, equally important Supreme Court case—Rucho v. Common Cause, which will determine whether federal courts can hear partisan gerrymandering claims.

The letter filed by the challengers in the census case is a reminder that racial gerrymandering (drawing legislative districts to dilute the power of racial minorities) often overlaps with partisan gerrymandering (drawing legislative districts to dilute the power of a political party). And it underscores commentators and litigants’ oft-expressed concern that if the Court does not allow federal courts to address partisan gerrymanders, then legislatures may be able to get away with hiding racial gerrymanders in partisan gerrymander clothing. Even if a legislature has not single-mindedly attempted to disenfranchise racial minorities, holding partisan gerrymandering claims not justiciable would insulate from review countless laws whose effect is to disenfranchise and under-represent racial minorities. Indeed, that is partially what is at stake in Common Cause.

On the census case itself, the letter further bolsters the challengers’ claim that the Trump administration added a citizenship question to the census in order to give an advantage to Republicans and whites in the political process. State legislatures use the census to draw districts, and adding a citizenship question would deter responses in immigrant-heavy urban districts, and therefore provide comparatively more political power to rural, white areas. (You can read my doom and gloom op-ed in the LA Times or Josh Geltzer’s in The New York Times or Rick Hasen’s essay in Slate or myriad other pieces on this point. Adam Serwer had an amazing piece in The Atlantic yesterday.)

But the letter in census case also bolsters the challengers’ position in Rucho v. Common Cause. Common Cause is the latest challenge to North Carolina’s congressional districts. The plaintiffs in Common Cause are arguing that North Carolina drew its congressional districts to dilute the voting power of Democrats and give Republicans an advantage in congressional seats. North Carolina does not dispute that it did so.

In Common Cause, the Court will decide if partisan gerrymandering claims like these are justiciable—that is, whether a federal court can invalidate partisan gerrymanders. If the claims are justiciable, federal courts can order legislatures to redraw districts that do not dilute voting power; if the claims are not, there will be no way to challenge even the most extreme partisan gerrymanders in federal court.

One concern with holding partisan gerrymanders not justiciable is that legislatures can disguise racial gerrymanders as partisan gerrymanders, and therefore prevent any judicial remedy for legislative districts that dilute the voting power of racial minorities. And even if that’s not what a legislature is purposefully trying to do—disenfranchise racial minorities—that’s what partisan gerrymanders have the effect of doing, since voting is highly racially polarized. (My colleague Rick Hasen has written about this here, among other places.) Political party is not a bad proxy for certain racial groups.

That is arguably what happened in Common Cause. North Carolina first attempted to redraw its congressional districts in 2011. In Cooper v. Harris, the Supreme Court held that two of North Carolina’s districts were unconstitutional because legislatures drew the districts to dilute the voting power of racial minorities.

After the Court invalidated North Carolina’s 2011 districting plan as racial gerrymanders, North Carolina tried again. This time, the North Carolina legislature stated that its goal was to secure a “partisan advantage” for Republicans and lock in a congressional delegation of 10 Republicans and 3 Democrats. The 2016 plan implementing that goal resembled the 2011 plan. But North Carolina has maintained that the 2016 plan seeks to advantage one political party, and that by focusing on partisan advantage, North Carolina ensured that it did not draw districts with race in mind.

But race and political party are often connected. Voting in the United States is racially polarized; the majority of certain racial minorities, including African Americans and the Latinx community, identify as Democrats and vote for Democratic candidates. So diluting the voting power of Democrats dilutes the power of racial minorities; it just uses another name for doing so. And it doesn’t matter whether legislatures targeted the group because of their race or because of their party; the effect of the policy is the same either way—a group’s political power will be seriously diluted and their representation will be dramatically diminished. That’s still a problem; a legislature’s purpose shouldn’t matter as much if we’re talking about policies with the effect of disenfranchising particular groups.

The letter in the census case underscores that Republican districting specialists understand that diluting the political power of Democrats also dilutes the political power of racial minorities. (It’s not clear if that’s an added bonus of the policy for its proponents, one of the policy’s purposes, or something else, but that awareness is out there.) In the letter, the plaintiffs in the census case lay out why Dr. Thomas Hofeller, a Republican redistricting specialist, proposed adding a citizenship question to the census. Hofeller apparently assisted some personnel at the Department of Justice in formulating a draft request to the Department of Commerce seeking the addition of the citizenship question.

When Dr. Hofeller came up with the idea of adding a question about citizenship to the census, he wrote that it “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.” Hofeller explained that the proposal would “provoke a high degree of resistance from Democrats and the major minority groups in the nation.” In other words, Hofeller understood that an electoral policy that disadvantaged Democrats would also disadvantage racial minorities.

The Republican redistricting specialist behind North Carolina’s 2016 redistricting understood that fact too. His name? Dr. Thomas Hofeller—the same specialist from the census.


Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Legal Challenges, Plus The Post Office Case

11/8/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the (frivolous) legal challenges to come. They are then joined by Public Citizen's Matthew Seligman to learn what happened with all those last-minute ballots, and what might happen in ongoing litigation in the Supreme Court.

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP