As the Supreme Court wraps up the 2018 term, it issued June 27 rulings in two important cases.
The court ruled 5-4 that it should be up to the states, not federal judges, to address the issue of partisan gerrymandering, the practice of political parties in power to redraw district maps to favor their incumbents. The court was asked to consider when politicians go too far in drawing lines for partisan gain in a set of cases arising from Maryland and North Carolina. Chief Justice John Roberts wrote the opinion and sided with the conservative majority that while such a practice might be distasteful, it is one that politicians, not judges, should solve.
Maryland Attorney General Brian Frosh
Maryland Attorney General Brian E. Frosh, whose office defended the 6th Congressional District’s constitutionality before the justices, called the decision “a sad day for our democracy.”
Using the state’s westernmost district — once solidly Republican but gerrymandered by the state’s Democratic leadership after the 2010 census — as an example, Frosh’s office had argued that courts can review a redrawn district and find it unconstitutional if the drafters exceeded “permissible political considerations” and engaged in “excessive partisanship” to diminish the influence of the minority party.
“We urged the Supreme Court to adopt a nationwide standard that would prevent extreme partisan gerrymandering,” he added. “The decision today instead prevents voters everywhere from challenging in federal court any redistricting map as excessively partisan. The attention now turns to Congress, which has the power to outlaw partisan gerrymandering of congressional districts.”
Professor Garrett Epps
Also today, the court blocked — for now — the addition of a citizenship question on the 2020 census. In Chief Justice Roberts’ opinion, he wrote that there was sufficient reason for concern about why the Department of Commerce wanted to add the question, but insufficient explanation as to why it was needed.
“This is a huge setback for the administration,” wrote UB School of Law Prof. Garrett Epps in The Atlantic. “Let’s understand what the Court, in its fractured opinion, decided. It did not decide there could be no citizenship question on the census, which would have fulfilled all the challengers’ hopes. Instead, it said that a citizenship question might or might not be a good idea, but to include it, the Commerce Department needs to explain its reasoning—its actual reasoning, not something cooked up after the fact.”
Epps provided this excerpt from Chief Justice Roberts’ opinion to show how the majority concluded the agency’s justification was inauthentic:
Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.
Epps continued: “We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision-making process. ‘Incongruent’ is not quite ‘pants on fire,’ but I think even the secretary of commerce can read between those lines.”
Professor Charles Tiefer
UB School of Law Prof. Charles Tiefer, writing for Forbes.com, suggested that the Trump Administration would continue to fight for the citizenship question to be on the census form.
“The Administration would certainly want to come up with an explanation and seek to preserve the citizenship question. It is hugely politically valuable, and, it is not just Ross, it is Trump himself, who cares about this. They will see Justice Roberts as leaving them a loophole to get through.
“But, there is no obvious candidate for a persuasive explanation for the citizenship question. It has not been asked for many decades. And, in various cases, the documents from all the suits against Ross make it stark that it was not the Justice Department asking him to help with the Voting Rights Act, it was Ross pushing the Justice Department to send him the letter he needed to rely upon.
“What will happen in the case?” Tiefer asked. “The Trump Administration could throw in the towel and accept the decision and drop the citizenship question. After all, it told the Court it needed a decision by the end of June to send the census questionnaires to the printer. But, it may suddenly discover that it has some more time after all.”